"CHAT WITH A NAT" BUS TOUR ...... 30490 ADJOURNMENT ...... 30489 ASBESTOS REMOVAL ...... 30420 BUSINESS OF THE HOUSE ...... 30399, 30399, 30457, 30480 CENTRAL WEST JOBS ...... 30489 CHARLOTTE PASS SKI RESORT ...... 30425 CHILD PROTECTION (OFFENDERS REGISTRATION) AMENDMENT (STATUTORY REVIEW) BILL 2014 ...... 30445 CLEAN ENERGY ...... 30424 DEATH OF SISTER PHILOMENE TIERNAN, RSCJ ...... 30493 DISABILITY INCLUSION BILL 2014 ...... 30399, 30427 GAS SUPPLY (CONSUMER SAFETY) REGULATION ...... 30422 GOING HOME STAYING HOME ...... 30423 HOMELESS PERSONS WEEK 2014 ...... 30396 HOMELESSNESS FUNDING ...... 30425 HOUSING ...... 30424 ILLAWARRA INFRASTRUCTURE AND SERVICES ...... 30417 ISLAMIC STATE OF IRAQ AND THE LEVANT ...... 30419 LOCAL GOVERNMENT ELECTIONS ...... 30418, 30422 MINING AMENDMENT (SMALL-SCALE TITLE COMPENSATION) BILL 2014 ...... 30456 MOTOR VEHICLE ROOF-MOUNTED SPOTLIGHTS ...... 30491 MUTUAL RECOGNITION (AUTOMATIC LICENSED OCCUPATIONS RECOGNITION) BILL 201430446 NATIONAL SUICIDE PREVENTION CONFERENCE 2014 ...... 30397 NEWCASTLE COAL TERMINAL ...... 30426 NSW WARATAHS SUPER RUGBY WIN...... 30396 POLITICAL DONATIONS LEGAL CHALLENGE...... 30417, 30492, 30495 QUESTIONS WITHOUT NOTICE ...... 30415 RAILWAY STREET, WICKHAM ...... 30424 REGIONAL BRIDGES ...... 30426 ROAD TOLL NOTICES ...... 30419 ROAD TRANSPORT AMENDMENT (MANDATORY ALCOHOL INTERLOCK PROGRAM) BILL 2014 ...... 30480 SELECT COMMITTEE ON GREYHOUND RACING IN NEW SOUTH WALES ...... 30397 ST GEORGE NETBALL ASSOCIATION WARATAH CUP WIN ...... 30397 STANDING COMMITTEES LEGACY REPORTS ...... 30396 STATE CONSERVATION AREAS FORESTRY MANAGEMENT ...... 30493 STATE INFRASTRUCTURE ...... 30421 STATE REVENUE LEGISLATION FURTHER AMENDMENT BILL 2014 ...... 30456 TENANCY DISPUTES ...... 30420 UNIVERSITIES LEGISLATION AMENDMENT (REGULATORY REFORMS) BILL 2014 ...... 30457 UNPROCLAIMED LEGISLATION ...... 30399 WESTCONNEX BUSINESS CASE ...... 30396, 30399 WESTCONNEX MOTORWAY ...... 30415, 30416, 30416, 30418, 30426
30396
LEGISLATIVE COUNCIL
Wednesday 13 August 2014
______
The President (The Hon. Donald Thomas Harwin) took the chair at 11.00 a.m.
The President read the Prayers.
Pursuant to sessional orders Formal Business Notices of Motions proceeded with.
WESTCONNEX BUSINESS CASE
Production of Documents: Tabling of Report of Independent Legal Arbiter
Motion by the Hon. DUNCAN GAY agreed to:
(1) That the report of the Independent Legal Arbiter, the Hon. Keith Mason, AC, QC, dated 8 August 2014, on the disputed claim of privilege on documents relating to an order for papers regarding the WestConnex Business Case, along with all the submissions received by Mr Mason during his evaluation of the documents, be laid on the table by the Clerk.
(2) That, on tabling, the report and submissions are authorised to be published.
STANDING COMMITTEES LEGACY REPORTS
Motion by the Hon. JENNY GARDINER agreed to:
(1) That the standing committees on Law and Justice, Social Issues and State Development produce legacy reports that:
(a) inform their successor committees of the activities undertaken during the Fifty-fifth Parliament and any matters that would benefit from further inquiry in the Fifty-sixth Parliament; and
(b) make recommendations to the Chairs' Committee, if necessary, regarding any matters relating to committees and the inquiry process that require particular action.
(2) That the committees report by 13 November 2014.
NSW WARATAHS SUPER RUGBY WIN
Motion by the Hon. MARIE FICARRA agreed to:
(1) That this House notes that for the first time in its history the NSW Waratahs won the Super Rugby Final beating the Crusaders 33-32 at the ANZ Stadium on Saturday 2 August 2014.
(2) That this House acknowledges and commends the members of the NSW Waratahs on their historic win: Michael Ala'alatoa, Alofa Alofa, Adam Ashley-Cooper, Kurtley Beale, Peter Betham, Matt Carraro, Mitchell Chapman, Cam Crawford, Dave Dennis, Kane Douglas, Israel Folau, Bernard Foley, Tala Gray, Michael Hodge, Stephen Hoiles, Jed Holloway, Michael Hooper, Rob Horne, David Horwitz, Sekope Kepu, Jono Lance, Tolu Latu, Matt Lucas, Pat McCutcheon, Brendan McKibbin, Taqele Naiyaravoro, Wycliff Palu, Greg Peterson, Nick Phipps, Tatafu Polota Nau, Jacques Potgieter, Hugh Roach, Benn Robinson, Paddy Ryan, Will Skelton, Jeremy Tilse, Ben Volavola, Michael Cheika (Head Coach), Daryl Gibson (Assistant Coach), Nathan Grey (Assistant Coach) and Tim Kelaher (Chief Scout).
HOMELESS PERSONS WEEK 2014
Motion by the Hon. JAN BARHAM agreed to:
(1) That this House notes that:
(a) 4 to 10 August 2014 was National Homeless Persons Week;
(b) Homeless Persons Week is an annual event coordinated by Homelessness Australia to raise awareness of issues associated with homelessness; and
(c) the theme of Homeless Persons Week 2014 was "Homelessness: we can't afford to ignore it," which highlighted that homelessness causes personal harm to those who experience it, costs governments by placing increased demand on health, justice and welfare services, and significantly impacts society by causing intergenerational inequality and entrenching disadvantage.
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(2) That this House notes that during Homeless Persons Week, Homelessness NSW called on the Baird Government to:
(a) invest in street counts of rough sleepers in several locations across Sydney and regional New South Wales;
(b) make a major effort to have all "hidden" boarding houses added to the New South Wales Register of Boarding Houses; and
(c) commit the unallocated $30 million of Commonwealth funding for the National Partnership on Homelessness in 2014-15 toward making new homelessness services more viable and effective.
(3) That this House notes that on the North Coast, The Greens representatives arranged or attended several Homeless Persons Week events, reflecting on the challenges faced by many North Coast residents to find shelter and support, and gathering information about the needs of some of the most vulnerable in our community.
(4) That this House notes the number of homeless people has continued to rise, with the 2011 Census indicating that 28,190 people in New South Wales, or 41 people per 10,000, were homeless, a 20 per cent increase in the rate of homelessness since 2006.
(5) That this House:
(a) congratulates all people and organisations who supported Homeless Persons Week;
(b) expresses its concern at the impacts of homelessness on individuals, society and governments; and
(c) supports ongoing investment to address the causes of homelessness, prevent people from becoming homeless and provide appropriate crisis services to those who have become homeless.
ST GEORGE NETBALL ASSOCIATION WARATAH CUP WIN
Motion by the Hon. MARIE FICARRA agreed to:
(1) That this House notes that on 23 July 2014 for the first time in Netball NSW history, St George District Netball Association, which was founded in 1947, won the Dooley's State League Division 1 Waratah Cup, defeating Eastwood Ryde Netball Association 52 goals to 38.
(2) That this House commends and congratulates members of the St George District Netball Association team on their historic win of the Netball NSW Dooley's State League Division 1 Waratah Cup: Moira Gaha, Coach Heath Brown, Assistant Coach Deborah Kassing, Manager Farjaam [Fudge] Atshan, Strength and Conditioning Coach Belynda Loveday, Holly Pearce, Kim Borger, Co-captain Emma Turner, Daisy Kennedy-Holtz, Kaitlyn Bryce, Alix Kennedy, Claire O'Brien, Katie Maguire, Kristiana Manu'a, Nicole Styles, Co-captain, Kara Styles, and April Letton.
SELECT COMMITTEE ON GREYHOUND RACING IN NEW SOUTH WALES
Extension of Reporting Date
Motion by Dr JOHN KAYE, on behalf of the Hon. ROBERT BORSAK, agreed to:
That the final reporting date for the Select Committee on Greyhound Racing in New South Wales be extended to Friday 17 October 2014.
NATIONAL SUICIDE PREVENTION CONFERENCE 2014
Motion by the Hon. MARIE FICARRA agreed to:
(1) That this House notes that:
(a) on 23 July 2014 the National Suicide Prevention Conference was officially opened by the Hon. Chief Justice Wayne Stewart Martin, AC, representing the Governor General of Australia, His Excellency General the Hon. Sir Peter Cosgrove, AK, MC [Retd]; and
(b) delegates from across the nation came together to discuss how to reduce the incidence of suicide in Australia.
(2) That this House notes with concern that:
(a) every day seven people in Australia die by suicide;
(b) suicide remains the leading cause of death in Australia for 15-44 year olds;
(c) the most recent data [ABS, Causes of Death, 2012] indicate that almost twice as many people each year die from suicide in Australia than in road related transport deaths, with 2,535 versus 1,310 deaths;
(d) the most recent Australian data [ABS, Causes of Death, 2012] reports 2,535 deaths due to suicide in 2012;
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(e) the overall suicide rate in 2012 was 11.0 per 100,000, compared to the 2011 rate of 9.9 per 100,000;
(f) in 2012, 1,901 males [16.8 per 100,000] and 634 females [5.6 per 100,000] died by suicide;
(g) men account for four out of every five deaths by suicide, making suicide the tenth leading cause of death for males;
(h) for those of Aboriginal and Torres Strait Islander descent, the suicide rate is 2.5 times higher for males and 3.4 times higher for females; and
(i) for every completed suicide, it is estimated that as many as 30 people attempt suicide.
(3) That this House acknowledges and commends:
(a) the Board of Suicide Prevention Australia [SPA] for its exemplary organisation of the conference: Mr Murray Bleach Co-chair, Dr Michael Dudley Co-chair, Ms Caroline Aebersold, Ms Jenny Allen, Mr Phillip Cornwell, Ms Angela Emslie, Ms Beth Derbyshire-Sloan, Associate Professor Myf Maple, Mr Atari Metcalf, Mr Wesley Smith, Mr Matthew Tukaki and Mr Alan Woodward;
(b) SPA staff for their outstanding contribution to the organisation of the conference: Ms Sue Murray [CEO], Ms Jo Riley [Policy and Sector Engagement Manager], Ms Michelle Williams [Government and External Relations], Ms Kim Borrowdale [Corporate Communications Manager] and Tracy McCown [Member and Supporter Relations];
(c) National Suicide Prevention Conference volunteers for their contribution and efforts: Mr Carlo Laruccia, Ms Mel Singh, Mr Daniel Trainer, Mr David Nicolson and Ms Jessica Sorci;
(d) SPA Lived Experience Committee for its contribution to the conference: Mr John Bradley, Ms Jen Coulls, Dr Mic Eales, Ms Bronwen Edwards, Mr David Kelly, Ms Hayley Purdon;
(e) the Program Advisory Committee for its contribution to the conference: Alan Woodward chair, Jo Riley, Ngaree AhKit, Susan Beaton, Mel Birrell, John Bradley Tony Cassidy, Helen Christensen, Erminia Colucci, Jen Coulls, Sue Crock, Joshua Cunniffe, Neda Dusevic, Mic Eales, Brownwen Edwards, Lance Emerson, Jill Fisher, Julie Greig, Katherine Hams, Trevor Hazel, Fiona Kalaf, David Kavanagh, David Kelly, Tracy McCown, Joel Murchie, Sue Murray, Jennie Parham, Hayley Purdon, Debra Rickwood, Barry Taylor, Scott Thompson and Pui San Whittaker;
(f) sponsors of the 2014 National Suicide Prevention Conference: AMP, beyondblue, Incolink, LiFE Communications, LivingWorks, Lotterywest, MATES in Construction, MensLine Australia, Mental Health Commission of Western Australia, Mental Health Council of Australia, Ministerial Council for Suicide Prevention [WA], National StandBy Response Service and RioTinto;
(g) invited keynote speakers for their contribution: Ms Susan Beaton, Professor Ngiare Brown, Professor Helen Christensen, Ms Jackie Crowe, Professor Pat Dudgeon, Ms Jill Fisher, Ms Rosalinda Fogliani, Mr Mr David Flanagan, Ms Georgie Harman, Ms Jacinta Hawgood, Professor Nav Kapur, Dr Matthew Large, Associate Professor Myf Maple, Mr Tim Marney, Ms Jane Pearson, Professor Nicholas Procter, Dr Bruce W. S. Robinson, AM, Professor Cobie Rudd and Associate Professor Ted Wilkes, AO;
(h) session chairs: Ms Susan Beaton, Ms Sue Murray, Professor Jane Pirkis, Ms Jaelea Skehan, and Mr Barry Taylor;
(i) presenters to the conference: Dr Bridget Bassilios, Dr Philip Batterham, Mrs Dulcie Bird, Mr Dameyon Bonson, Ms Lauren Breen, Ms Meg Bryant, Ms Bev Brechin, Dr Alison Calear, Mr Tony Cassidy, Professor Helen Christensen, Ms Sarah Coker, Dr Erminia Colucci, Dr Claire Kelly, Ms Tegan Cotterill, Dr Georgina Cox, Ms Sharleen Delane, Ms Sharon Hillman, Professor Rob Donovan, Dr Mic Eales, Ms Susan Beaton, Mr Clive Elliott, Mr Bob Taddeo, Mrs Ann Evans, Dr Catherine Ferguson, Ms Jill Fisher, Ms Kayte Godward (Tainui), Ms Sarah Green, Ms Kylie Atkinson, Ms Rachel Green, Ms Jacinta Hawgood, Mr Les Hems, Mr Alan Woodward, Mrs Belinda Horton, Dr John Howard, Mr Atari Metcalf, Mr Ross Jacobs, Adjunct Professor John Mendoza, Dr Martin Harris, Ms Fiona Kalaf, Professor David Kavanagh, Dr Claire Kelly, Miss Vanessa Kennedy, case studies of support provided by the headspace School Support service, Mrs Alison Kennedy, Mr Julian Kreig, Dr Karolina Krysinska, Ms Rebecca Lewis, Professor Rob Donovan, Mrs Kirsty Louden-Bell, Dr Kathy McKay, Miss Aves Middleton, Mrs Charlotte Myers, Miss Caitlin Neal, Ms Meg Perceval Evaluation, Mrs Angela Petrolo, Professor Jane Pirkis, Professor Nicholas Procter, Mr Sebastian Robertson, Ms Jo Robinson, Dr Alish Rodgers, Ms Sandy Cavner, Mr Elio Rossaro, Mr Craig Sampi, Ms Mel Hoy, Mr Bill Sayers, Dr Fiona Shand, Mr Kevin McKenzie, Dr Johann Elizabeth Sheehan, Professor Debra Rickwood, Ms Melanie Singh, Ms Jaelea Skehan, Mrs Alexandra Culloden, Ms Jaelea Skehan, Ms Susan Beaton, Ms Jaelea Skehan, Dr Mic Eales, Ms De Backman-Hoyle, Ms Lee Smith, Ms Joan Dhamarrandji, Ms Regan Smith, Dr Matthew Spittal, Mr Barry Taylor, Mr Garry Thomson, Mr Paul Vittles, and Ms Stephanie Wilks; and
(j) delegates to the conference for their contribution to reducing suicide, caring for those that have attempted suicide and their families and loved ones.
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BUSINESS OF THE HOUSE
Formal Business Notices of Motions
Private Members' Business item No. 1956 outside the Order of Precedence objected to as being taken as formal business.
UNPROCLAIMED LEGISLATION
The Hon. Matthew Mason-Cox tabled a list detailing all legislation unproclaimed 90 calendar days after assent as at 12 August 2014.
WESTCONNEX BUSINESS CASE
Production of Documents: Tabling of Report of Independent Legal Arbiter
The Clerk tabled, pursuant to the resolution of the House this day, the report of the Independent Legal Arbiter the Hon. Keith Mason, AC, QC, dated 8 August 2014, together with submissions received by Mr Mason, on the disputed claim of privilege on papers relating to the WestConnex Business Case, together with invited submissions from members and other interested parties in relation to the role of the independent legal arbiter and the claim of privilege.
BUSINESS OF THE HOUSE
Postponement of Business
Business of the House Notice of Motion No. 1 postponed on motion by Dr John Kaye and set down as an order of the day for a future day.
Government Business Order of the Day No. 1 postponed on motion by the Hon. Duncan Gay and set down as an order of the day for a later hour.
DISABILITY INCLUSION BILL 2014
Second Reading
Debate resumed from 28 May 2014.
The Hon. MICK VEITCH [11.19 a.m.]: I lead for the Opposition in debate on the Disability Inclusion Bill 2014. The bill advises that its objects are stated in section 3 of the proposed Act, and include acknowledging that people with disability have the same human rights as other members of the community, promoting the independence and social and economic inclusion of people with disability, enabling people with disability to exercise choice and control in the pursuit of their goals, providing safeguards in relation to the delivery of supports and services for people with disability, supporting, to the extent practicable, the purposes and principles of the United Nations Convention on the Rights of Persons with Disabilities and providing for State responsibilities during and following the transition to the National Disability Insurance Scheme [NDIS]. The bill further provides:
The objects are to be achieved under the proposed Act primarily by:
(a) stating the disability principles to which people exercising functions under the proposed Act, or providing supports or services to people with disability, are to have regard, and
(b) providing for a State Disability Inclusion Plan to be prepared by the Department of Family and Community Services setting out whole of government goals that support the inclusion in the community of people with disability, and for each public authority to have a disability inclusion action plan setting out measures to ensure people with disability can access general supports and services available in the community, and
(c) providing for the continuation of the Disability Council of New South Wales, and
(d) providing for the making of service standards relating to the provision of supports and services for people with disability, and
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(e) providing for the provision of supports and services, including financial assistance for individuals and certain entities to facilitate obtaining, or the provision of, supports and services, and
(f) amending the Ombudsman Act 1974 to provide for a monitoring and investigative role for the Ombudsman in relation to certain reportable incidents occurring in supported group accommodation facilities of the Department or a funded provider.
This bill comes before our Chamber following the National Disability Insurance Scheme enabling legislation. As I have said before, the NDIS will be the most significant public policy paradigm shift in the provision of disability services in Australia for an extremely long time. It will cause a momentous shift in the way disability services are provided in this country but it cannot be considered as an excuse for any of us to absolve ourselves of our responsibilities towards people with disabilities in New South Wales. Whilst we are transitioning from the old scheme to the new paradigm it behoves us all to ensure that no-one falls through the gaps.
The majority of people with disabilities and service providers want this paradigm shift in public policy to occur. The issue is about empowering the sector. It is about empowering people to make choices on service provision and empowering the service providers to be able to deliver those services while ensuring that no-one falls through the gaps. A number of submissions have been made on this inclusion bill. I encourage members who have not already done so to look at those submissions on the website as I have done. I will refer to two of those submissions in particular later in my contribution. It is important that we go through the background to the legislation to remind ourselves of how we got to this point with this bill. Legislation Review Digest No. 57/55 states:
In 2011, the Government commenced the 'Living life my way' consultation process which gave more than 4,000 individuals the chance to share their opinions on introducing self-directed support and individualised budgets. In 2013, approximately 600 people with disability, their families and carers, service providers and peak representative organisations in NSW attended face-to-face consultations to discuss the review of the Disability Services Act 1993. Sixty four written submissions were also received. These views were taken into account in developing the Bill. In December 2013, the exposure draft of the Bill was released for public comment and the Government received more than 90 written submissions.
The Minister's Second Reading Speech notes that the existing Disability Services Act 1993 no longer sits comfortably with the present-day approach to disability, with the shift towards person-centred disability services, client-directed supports and individualised budgets. The Minister notes that the rights-based inclusion framework proposed by the Bill will enable NSW to make a smooth transition to the National Disability Insurance Scheme in 2018.
I certainly hope there is a smooth transition to the NDIS in 2018 but I have some concerns about the transition process and the pathway for people with disabilities and their service providers. The shadow Minister and I have many concerns about the way forward and whether this bill is another stepping stone towards 2018. I learnt one of my most significant lessons on disability services during the mid-1990s when the Howard Government introduced reforms to the funding of disability services. One of the things that fell through the gap on that occasion was advocacy on behalf of the service providers and, importantly, advocacy on behalf of the individuals with disabilities who were accessing the services.
As a result of the previous bill and the Disability Inclusion Bill 2014 I have significant concerns about the capacity for advocacy within the system in New South Wales. I hope that the Minister heeds these warnings. I would hate to be back here in the couple of years drawing attention to the failures because we did not put the policy levers and protections in place for people with disabilities and their service providers as we transitioned to the new environment. A reading of this bill leaves me in some doubt because it is silent on a number of areas. I suspect that the Minister may well have to rectify things by way of regulation in the future. I would like the Minister to put on record whether there are plans to introduce regulation at some stage to assist with the implementation of this bill and the transition to the full NDIS in 2018. I ask the Minister to put that on the record because it is important that people with disabilities and the service providers have some clarity on the transition process. No-one in this Chamber wants people to fall through the gaps. That would be a failure on behalf of not only the Minister but also all of us. We do not want that to happen but there is a real possibility that people will fall through the service provision gap and miss out.
Because the NDIS will be such a significant change to the way disability services are delivered in New South Wales and Australia it is my view that this bill should be referred to a committee to examine its potential unintended consequences. I do not say that in an attempt to stall the process. Far be it for me to try to slow down the process because, as the Minister knows, I am a firm believer in the NDIS. I am also a firm believer in getting it right. The bill should be subjected to the scrutiny of an upper House committee so that we can get it right. Let us face it, upper House committees do excellent work in this realm and so I am positive that a committee will deliver a report upon which the Minister can rely with full certainty. The bill should be referred to a committee for a short and sharp investigation into its unintended consequences. 13 August 2014 LEGISLATIVE COUNCIL 30401
I know that the Minister believes this is superb legislation that is the next step along the way to the full implementation of the scheme in 2018. But, as demonstrated in the submissions, many people in the sector are not as certain or as positive as the Minister. They are not sure that this bill will deliver the next steps or that it provides the security they need to move forward. As a former chief executive officer of a disability service provider I know that certainty is important. It is not possible for those entities to quickly change their business plans. It is certain that business models are being changed across the State right now because of the paradigm shift caused by the National Disability Insurance Scheme. It is a completely different method and a completely different mindset for delivering disability services.
To research and devise business plans, people need some surety. If they do not get surety, some guidance, clarity and leadership, their business plans will be wrong. If that happens, service providers will fall over and significant aggregation in the sector will occur. That is something I do not want to see in country New South Wales because experience shows that we lose the genuine, community-based, not-for-profit operators and the service providers become almost corporate models—large centres with a head office in Sydney and outreaches to the community. I do not want that.
In country New South Wales, the service providers run by local people understand the community and the needs of that community. For the sake of everyone, referral of this bill to a committee will ensure that we get this right. We cannot afford to get this legislation wrong. I implore the Minister to take on board what I am saying. As much as the Minister wants this to work, I also want this legislation to work. There is so much invested in making sure that people with disabilities, their service providers and we as legislators get this legislation right. If we get it wrong, there is significant potential for damage. We cannot afford that. At the conclusion of my contribution I will be moving that we refer this bill to the Standing Committee on Social Issues. I certainly hope that the crossbenchers are hearing my statements.
The Opposition does not want to stall this bill or the implementation of the National Disability Insurance Scheme and we do not want to stall the process and the transition towards what will be in 2018 a new paradigm, but we want to get this legislation right. I implore members on the crossbenches to hear my words and support the Opposition's move to refer this bill to the Standing Committee on Social Issues. One of the issues I have around the potential for gaps is that, as the Minister would know, South Australia is using savings that have been generated by the National Disability Insurance Scheme to support what is referred to as tier two. If South Australia can do it, why cannot New South Wales? One of the tier two supports is advocacy. As much as people may not understand the importance of advocacy in the disability sector, it is a significant component of service delivery in that sector.
Individuals need to be able to access quality, professional advocacy. It behoves the State Government to deliver that for us, to make sure that is available and to ensure that there are organisations with solid corporate governance processes that have quality measures and that can deliver professional and independent advocacy not only for people with disabilities and for individuals but also for service providers. The service providers also will need advocacy during this transition period and beyond. Some of the Opposition's amendments are around advocacy. I again implore members on the crossbenches to hear my words. Advocacy is essential to the disability sector. Professional, independent advocacy is an absolute requirement for the sector. If independent advocacy is not there, significant potential for abuse will develop.
When we talk about individualised, person-centred funding, we cannot allow significant potential for physical as well as financial abuse to occur. If the Minister can at least hear what the Opposition is saying in relation to this, it is about getting this right. It is not about trying to thwart or stall the bill. It is simply about trying to get the legislation right. The sector needs that; people with disabilities need that. The Opposition has a number of amendments that it intends to move. It is important for people to understand where we are going with those amendments. In New South Wales we cannot wash our hands of the responsibility we have to ensure that this new legislative paradigm works. If it is to work this bill on its own will not achieve that. I am certain the Minister acknowledges that there are more steps that have to be taken along the path that leads to 2018.
I know that people will fall through the gaps. I know that people will be assessed and may well finish up in tier two services that are not funded through the National Disability Insurance Scheme. Where does that leave New South Wales? What is our responsibility? The Minister can say, "We are negotiating that process at the moment", but the reality is that people will fall through the gaps while the Minister is negotiating, and we cannot afford that either. Safety nets must be put in place to catch people. The NDIS, which is such a huge and momentous public policy, cannot be used as an excuse for failure in this context and cannot be used as an excuse for things not to be done. It cannot be used as an excuse, full stop. 30402 LEGISLATIVE COUNCIL 13 August 2014
It is an exciting and almost invigorating change to the way in which services are provided, but it needs leadership to ensure that it works and it needs all of us to accept responsibility. We need a robust legislative framework. I ask the Minister to state in Hansard how he intends to ensure that this legislation will work. What are the review processes? Will the Minister need regulations? I am certain he will, but if he needs regulations, what does he envisage them to be? There needs to be clarity for everyone. We have to get this right. The bill requires technical improvements, hence the Opposition's amendments. I realise the Opposition has several pages of amendments. We are working through the process to ensure that some can be moved in globo to ease the pain for members, but the amendments will lead to improvement. This is not an attack on the bill. This is about getting it right.
Members know that I have a long history of working in the disability sector and a long history in advocating for people with disabilities. I have fostered children with disabilities for a very long time. I want to make sure that the framework and the environment within which people with disabilities seek services will meet their needs. This is a momentous time for people with disabilities, but I say again that for the NDIS to work properly there needs to be strong and robust oversight, strong and robust leadership, independent advocacy, and an emphasis on quality services, and there needs to be clear roles and responsibility for the Government of New South Wales around the delivery, that is, the monitoring and maintenance regime, for this to work.
The Government should not underestimate quality services and what that means. Years ago in the service with which I was involved we went through ISO 9000 to introduce a quality framework around the service delivery models within our organisation. That took a lot of work and there was a lot of angst. People were not comfortable along the way but, in the end, it provided me, as the chief executive officer, with some surety that we were delivering quality services to the people who accessed our services. Corporate models in the disability sector need strengthening.
Some organisations take on board the need for a corporate governance model and have a model in place already. Other organisations do not and they will need support from the State Government to introduce them. For them to participate in the new paradigm, they will need significant support to get their corporate governance models, their systems and their structures in place. Those business models are crucial to survival. I am certain that some services will disappear. That is what will happen. That is what happened when the Federal Government introduced reforms in the mid-1990s, and the reason services disappeared was that they did not have in place corporate governance and quality assurance models. They do not have the capacity to compete if they get their business model wrong.
The State Government has a significant role to ensure that service providers are capable of participating in the National Disability Insurance Scheme, particularly in rural and regional areas. I am concerned about how this measure will apply in rural and regional areas. Some communities have only one service provider. We could have someone based in Sydney outreaching those services, but the community would not then have any ownership of those services and would not support them to the degree that they do their own service. What supports are being put in place to ensure delivery of these services? These are the sorts of questions that can be picked up, teased out, fleshed out and tested by referral to a committee. These are the sorts of things that this House can make sure we get right.
This House can provide to the Minister some guidance to make sure we do get it right. Minister, if this goes wrong, whose head is on the chopping block? It is yours. With referral to a committee, we would all have ownership of that failure because every member of this Chamber will have the opportunity to make sure we get it right. Referral to a committee will ensure that the Minister has firm and positive information on which to make his decision. One of the standards around disabilities is informed decision-making. If we demand that standard of people with disabilities and their service providers, why should we not demand the same of ourselves? Why should we not apply that principle to ourselves?
I note that The Greens have some amendments to the bill because their amendments are being put before me as I speak. Minister, I want to say a few things about the amendments, and perhaps thereby expedite the Committee process. First of all, the obligation to adhere to disability principles is set at a lower level than that in the current Disability Services Act, which signals a reduced commitment by the Minister to upholding the rights of people with disabilities. I share that concern, which has been raised in submissions on the bill that the Minister received.
I am keen to know how the State disability inclusion plan and disability inclusion action plans across government will work. I will give an example of one of the things that worries me about these sorts of phrases 13 August 2014 LEGISLATIVE COUNCIL 30403
and processes. The public service is required to employ a certain number of people with disabilities. But ask the public sector bodies how they do that, have a look at their annual reports, and see if you can work out how many people with disabilities have been employed. There might be a percentage or number given, but you have to go and see the jobs that those people are doing to know their standard of employment. We do not drill down to the detail to determine the quality of the employment positions that those people obtain. We just get numbers.
Employing people with disabilities is a wonderful sentiment. We hear wonderful words used—as we heard when we were in government and hear now that the Coalition is in government—that the public service will employ a certain number of people with disabilities. But have a look at the outcomes—not what is on paper, but the quality of the jobs held by people with disabilities in the public sector. Some departments do better than others. It might be a shock to some that some departments are gung-ho in their attempts to achieve results, while others pay less than lip service to them.
I am concerned about disability inclusion plans and what they will actually achieve. I think we need a much more robust framework around not only developing those programs but also making sure they are implemented along with a monitoring regime. I give another example of something that is not monitored that does not work—the payroll tax rebate for disability employment. That was brought in by this Government in 2011. Twelve months into its operation I made a speech about a budgeted 100 placements in the first year, an admirable goal. But at the end of the first year how many placements were there? Just three. That was absolutely appalling. No-one in this Chamber could have been happy with that result.
When that bill was going through this Chamber I was given an assurance by the then Parliamentary Secretary, now the Minister, that there would be performance monitoring of the regime and that my concerns were unfounded. But 12 months in I think I was right and the then Parliamentary Secretary was wrong. So monitoring of regimes and performance management of disability inclusion plans is absolutely critical. In that context, if the bill were referred to a committee, this House of review could have a closer look at those plans, look at the risks and pitfalls, and determine what checks and balances need to be put in place. That is why this bill should go to a committee—to have a closer look at things like the disability inclusion action plans and how they will be put in place.
Our amendments also go to the role and function of advocacy groups and organisations. They should be not just recognised but supported by the bill. It is critical that we put much more time and effort into getting the advocacy role of the disability sector right, so that the sector does not at some time in the future find itself in disarray. Referring the bill to a committee now may at some stage in the future avoid the necessity for a further select committee looking into the failings of this bill. I do not think we can afford that. We need to fix it now, to get it right now. Everyone in the Chamber wants to support the Minister on this bill, so it is important that we have a closer look at the bill and the checks and balances, and things like tier two support, housing, education and access to health and justice. My passion is that people with disabilities be able to access award wage employment.
Minister, there is an issue right now in the sector. As the Minister is aware, a court decision has been made about the business supported wage model. A lot of business services in this State will have to find a new model, in a very short time frame. The model being proposed is the supported wage scheme. Some business services are telling me that going to that scheme will send them broke. That is happening on the Minister's watch while this bill is going through. Some services that the Minister probably will be relying on to deliver his proposals may not be operating in 12 months time. In that context, it is critical that we get this right.
A committee could also examine the impacts of this bill on people with disabilities and the community of the withdrawal of peak consumer disability organisations from provision of a representative voice to government. That systemic advocacy is also important. It is not unusual for a bill of this nature, which already has been the subject of a fair bit of consultation, to be referred to a committee for a final review and check. During my time here, the Assistant-President was successful in referring to a committee a planning bill that already had been the subject of significant consultation. This House decided that was a critical issue that needed further detailed investigation that can only occur in a committee of this House of review. The Committee backed the Assistant-President's move to have that bill referred to a committee. That is a perfect example of what should happen with the bill now before the House. We have to get it right. There are other comments I would like to make, but I will reserve those for the Committee stage if the House does not support my request for referral of the bill to a committee. On that basis, I move:
That the question be amended by omitting "be now read a second time" and inserting instead "be referred to the Standing Committee on Social Issues for inquiry and report".
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Minister, there is a lot more to be done. We want to work with you on this. Please work with us on this. Bipartisanship is essential to make this proposal work. If the bill is considered by a committee, we will have surety on our way forward. Do not dismiss this motion for referral. There are people in the sector who are watching what happens today. It will not be good if this Chamber cannot conduct a review to provide you, Minister, with more surety and assistance in getting this bill right. Without that procedure, there is a grave risk that we will get this wrong.
The Hon. MARIE FICARRA (Parliamentary Secretary) [11.49 a.m.]: I support the Disability Inclusion Bill 2014. As members are aware, this bill will have a significant and positive impact on the lives of thousands of people with a disability, their families and their carers. The Minister for Ageing, and Minister for Disability Services in his second reading speech said:
The social model of disability is based on the premise that disability is not inherent in the person but arises from the interaction of a person's impairments with barriers put up by society to full and equal participation. Barriers may include attitudes towards people with disability or may exist in the built environment. I believe that it is not for people with disability to change to accommodate society but it is up to society to change to accommodate people with disability.
That is why I stress the positive comments of the Minister, his good intentions, and his involvement and interest in the field over such a long period. Living in a time of incredible change, I am pleased to note that this bill aims to deliver a vision for a more cohesive society, create social change, strengthen the rights of people living with a disability and increase their level of choice and control, and adopt a broader remit than simply enabling disability service provision. From the outset I should note that the bill results from extensive community consultation with thousands of people across the State following the commencement of public consultation on the Living Life My Way initiative. I congratulate the Minister and his department on the extent of those consultations and conducting them with respect, dignity, inclusiveness and thoroughness. It is most inspiring to learn that many people from across the State had their say and contributed to this bill, which seeks to reflect their feedback following the Government listening to what they want.
This bill is a shining example of best practice consultation and of a government listening and responding to those who made an effort to contribute to improved processes, regulations and eventual legislation to provide better and more responsive services to people with disabilities, their carers and families. This bill seeks to replace the present Disability Services Act 1993 which, for the past 21 years, has been the main legal platform throughout the State to regulate support services and funding for those members of our community with a disability. As many stakeholders have said, the Disability Services Act no longer conforms to our society's expectations.
This bill's two sets of principles respond to those community expectations. The first acknowledges the human rights of all people with disability and is developed with regard to the United Nations convention. The second recognises the needs of particular groups, such as Aboriginal and Torres Strait Islander people with disabilities, people with disabilities from culturally and linguistically diverse backgrounds, women with disabilities and children with disabilities. The Disability Inclusion Bill acknowledges that these groups of people often suffer multiple forms of disadvantage and it clearly sets out considerations for delivery of supports and services to those groups. The incorporation of the United Nations Convention on the Rights of Persons with Disabilities in the definition of disability in the bill's objects and principles reflects this State's commitment to the human rights of people with disability pursuant to international standards.
Recently, the community experienced a greater shift towards person-centred disability services, client-directed support and individualised budgets. This new approach is grounded on the fact that the person with the disability is firmly at the centre of any decision concerning his or her wellbeing, and is able to exercise choice and control over the nature of any support he or she may receive and how it is delivered. All members in this House would be aware that the New South Wales Government was the first to sign up to the National Disability Insurance Scheme [NDIS] in 2012. I highlight this Government's commitment to adopting this new approach to support people with disabilities to achieve their goals. This revolutionary approach will provide every Australian with choice and control in their everyday lives.
This bill proposes a rights-based inclusion framework and, importantly, moves away from the highly regulated past service regime. This approach will facilitate the New South Wales Government to make an easy transition to the NDIS on 1 July 2018. This bill represents a significant change to the lives of people with disability, their families and carers throughout our whole nation. The legacy provisions make the bill an 13 August 2014 LEGISLATIVE COUNCIL 30405
instrument of social change and affirm that people with a disability have the same human rights as other people, and promote the inclusion of those people in the community. The legacy provisions articulate that the New South Wales Government must continue to strive to ensure the wellbeing of people with disability, their families and carers in our State.
I note that the Government has acted to ensure that this is not a major impost on local government through the extension of the Disability Inclusion Action Plan. By now most councils should have in place and be continually developing strategies and disability action plans. This Government is developing guidelines and support tools to assist local councils to prepare disability inclusion action plans should they not have them in place already. It is important to introduce this bill now rather than in the final stages before July 2018 to ensure that the National Disability Insurance Scheme is implemented on schedule and that those members of our society impacted by the scheme will be fully prepared for its transition. I commend the bill to the House.
The Hon. PAUL GREEN [11.56 a.m.]: On behalf of the Christian Democratic Party I contribute to the debate on the Disability Inclusion Bill 2014. Like the Hon. Mick Veitch, I also have two loved ones—my brothers—with significant disability challenges. Therefore, I understand with great compassion the need for this bill and for the future services of the National Disability Insurance Scheme [NDIS] to be successful in all aspects. The assumption seems to be that this bill will not get it right. If there is one thing more complex than health care, it is disability health care. I am sure there will be some bumps in the road before the NDIS is fully functional. Unfortunately, no-one can promise that the transition will not be bumpy. We must do everything possible to ensure the implementation of the NDIS infrastructure in a timely manner. The Christian Democratic Party does not want to be part of anything being slowed, but also does not want to leave broken infrastructure that will need much more resources down the track.
The main purpose of the Disability Inclusion Bill 2014 is to enhance protections and enshrine in New South Wales law the rights of people with disability during the implementation and following the full transition of the National Disability Insurance Scheme, known as the NDIS. The Christian Democratic Party strongly supported the introduction of the National Disability Insurance Scheme (NSW Enabling) Bill 2013. I was privileged to be presiding in the chair, as you are presently Mr Assistant President, to sign off on that bill. This bill also will repeal the Disability Services Act 1993. The bill provides a basis for the way that New South Wales delivers services, supports and safeguards as the service system evolves into one of choice; it ensures that each individual has the right to make his or her own decisions with dignity and respect; and it facilitates a smooth transition to the National Disability Insurance Scheme [NDIS]. The bill will repeal the Disability Services Act 1993, which was developed more than 20 years ago.
The bill is designed around two key priorities, one of which is transitional provisions. These provisions aim to equip people with disability, service providers and the New South Wales Government for transition to the NDIS. When the NDIS is fully implemented in 2018 these parts will be made redundant. The other key priority is the legacy provisions. These provisions establish a strong, outcomes-focused approach to whole-of-government strategies that aim to make communities more accessible and inclusive for people with disability. They also clarify the long-term responsibility of the Government following the full implementation of the NDIS in 2018.
I note key aspects of the bill. It requires the Government to prepare a State Disability Inclusion Plan, which will provide a strategic whole-of-government approach to planning to make mainstream services more accessible and communities more inclusive. It requires future New South Wales Government departments, local councils and other public authorities set out in the regulations to develop and implement disability inclusion action plans. It tightens the employment screening provisions for services provided and funded by the Government. Organisations will need to check the criminal records of all staff, volunteers and board members who work directly with people with disability. The bill requires accommodation and respite service providers to report serious incidents involving clients to the Ombudsman. It clearly articulates the Government's ongoing responsibility for promoting the social and economic inclusion of people with disability after transition to the National Disability Insurance Scheme is completed. It contains strategies for building systems focused on quality services and the prevention of abuse.
I cited statistics during debate on the NDIS bill and I will repeat them during debate on this bill because real people are behind these statistics. That is the message conveyed by the Hon. Mick Veitch every time he speaks about disability issues. He brings a sense of the real people behind those statistics to the debate. Almost one in five people in New South Wales—1.2 million people or 19 per cent of the population—had a disability when the most recent statistics were collected. Most of these people—1.1 million or 88 per cent—had a specific 30406 LEGISLATIVE COUNCIL 13 August 2014
restriction that consisted of a core activity restriction such as self-care, mobility and/or communication, and/or a schooling or employment restriction. Of those, 38 per cent with a core activity restriction had a mild level of restriction associated with their disability. A further 23 per cent had a moderate level of restriction, 21 per cent had a severe level of restriction and 19 per cent had a profound level of restriction.
The rate of disability for males and females increased markedly with age. For males, the disability rate rose from 6 per cent for children aged nought to four years to 80 per cent for people aged 85 years and over. For females, the rate of children aged nought to four years was 2 per cent and that increased to 84 per cent for those aged 85 years and over. People born overseas in non-English speaking countries had a disability rate of 18 per cent compared to 24 per cent of those born in mainly English speaking countries. This reflects the older age infrastructure of early post World War II migrants who were largely from the United Kingdom and Ireland.
For 85 per cent of people with disability, physical conditions were the cause of their disability. Among this group, the most common cause was diseases of the musculoskeletal system, including arthritis. For 15 per cent of people, mental and behavioural disorders were the causes of their disability. Of dependent children with a disability, roughly half, or 52 per cent, were restricted by a physical condition and 48 per cent were restricted by a mental or behavioural disorder. A range of causes were reported by people as the main reason for their disability. The most common reasons that were stated, which accounted for a quarter of those with disability, were that it just came on or that it was due to old age.
More than one-third of people living in households needed assistance with property management. Other activities that people with disability commonly required assistance with included healthcare, 26 per cent; transport, 25 per cent; and housework, 25 per cent. Of people receiving assistance, 87 per cent cited families and friends as the care givers and 42 per cent cited formal organisations. We should never forget that an estimated 798,300, or about one in eight people, are performing a caring role. Of these, 162,200 people, or one in five, were primary carers. Women accounted for 57 per cent of all carers and 73 per cent of primary carers. The largest number of carers—161,600—were aged 45 to 54 years. The largest proportion of carers—24 per cent— were aged 55 to 64 years.
Some 52 per cent of primary carers who resided with their main recipient of care were partners and 24 per cent were parents. Primary carers who did not reside with the main recipient of care were usually sons and daughters of that person, representing 64 per cent, or other relatives and friends, representing 31 per cent. About four in 10 primary carers and three in 10 carers had a disability. Profound or severe core activity restrictions were reported by 12 per cent, or 19,800, of primary carers and 7 per cent, or 42,500, of other carers. A total of 48 per cent of carers recorded family responsibility as the most common reason for taking on the caring role, 48 per cent of carers believed that they could provide better care and 40 per cent of carers reported it was an emotional obligation. Half of the primary carers provided assistance for 20 hours or more per week. People with a disability of working age, 15 to 64 years, had a lower rate of labour force participation, at 50 per cent, than those without a disability, at 80 per cent.
In 1998, 313,700 people of working age with disability—15 to 64 years—were employed. Almost 28 per cent of working age people with disability were permanently unable to work. In 1998 two-thirds of people aged five years and older with disability who were living in households were able to go out as often as they liked. Of the remainder, 33 per cent reported that they did not go out as often as they liked and 1 per cent reported that they did not go out at all. Nearly half, or 47 per cent, of people with disability who did not go out as often as they liked indicated their illness or condition was the main reason. I commend the New South Wales Government for being the first State to sign on for the National Disability Insurance Scheme through a heads of agreement with the Commonwealth. The bill is an extension of that previous commitment by the Christian Democratic Party to work in an effective and bipartisan manner with the New South Wales Government to deliver a disabilities service system that increases the choice and control for people with disability.
I reflect on some of the comments made by the Hon. Mick Veitch and other concerns. We have spoken about people who are cut off from services and whether they have an entitlement. Unfortunately, there will always be people who are cut off from receiving disability services. I note, in particular, the tier two issue that the Hon. Barbara Perry spoke to me about. I have asked the Minister to comment on the tier two issues in his reply. I note the advocacy issues and the concern about the quality of professional services. I also note that the Minister has given a commitment to continue to make representations to the Federal Government to sort out the tier two issues. The statistics that we are seeing are not acceptable.
The Hon. Mick Veitch: It is unacceptable. 13 August 2014 LEGISLATIVE COUNCIL 30407
The Hon. PAUL GREEN: It is not acceptable. The bill is a step in the direction of a successful disability system. As the Hon. Mick Veitch has said, we want to get it right. The Government is trying to get this right. For example, the Government's amendments demonstrate that it is willing to hear from stakeholders and make necessary adjustments—not as many perhaps as Labor would like. Ms Jan Barham has foreshadowed that she will move some amendments during the Committee stage. I note the suggestion of the Hon. Mick Veitch that this bill be referred to an upper House committee and the representations of Mrs Barbara Perry in that regard. The Christian Democratic Party is confident that the Government is on track to deliver reform in an area that has been lacking for some time and we do not want to be a hindrance to that outcome. However, we do not proclaim the outcome will be infallible and, as I said earlier, it will be a bumpy road.
My experience as a member of this place is that all bills have unintended impacts. It would be great if members had sufficient foresight to address this before the passing of a bill, but if the bill process is constantly stopped because of unintended impacts we would not be doing any work. The Minister is optimistic that the bill is a step in the right direction; the Christian Democratic Party shares his optimism. I again note the concerns of the Hon. Mick Veitch that a safety net should be set to reduce the number of people falling through the gap. I worked in health care for quite a few years; there is always someone outside the model who falls through the gap. We need to ensure that those people are picked up somewhere along the line and obvious holes are closed.
It would be nice to have an open cheque book to absorb the transition and management of the National Disability Insurance Scheme, but that is not reality. Indeed, we would love to get the scheme 110 per cent right, but we need to carefully calculate this transition. It would also be nice if the system had no holes but, unfortunately, health care and transitions can be complex. As I have said, the Minister thinks he has got it right and he is the type of Minister who will quickly bring this matter to the attention of the House if that does not prove to be the case. The Christian Democratic Party has confidence in the Government and the Minister. I commend the bill to the House.
The Hon. ERNEST WONG [12.13 p.m.]: I join my colleagues in debate on the Disability Inclusion Bill 2014. Disability service is a core function of government in a fair society. This bill addresses important issues for everyone in this State, not only those with someone in need of care in their lives. Disability service is fundamentally concerned with what happens when life deals us something unexpected—it can happen to anyone. If the unexpected happens will people get a fair go? If a child is born with a disability will the child get a fair go? If an accident causes a disability will the disabled person get a fair go? Will the families carrying the burden of their loved ones get a fair go? That is the perspective from which this bill should be assessed. We need to get this right.
I now turn to the provisions of the bill. The core aims of the bill are positive and should be commended. A State Disability Inclusion Plan is to be prepared by the Department of Family and Community Services, which will make mainstream services more accessible and communities more inclusive. Government departments, local councils and other public authorities will be required to develop and implement a disability inclusion action plan. The employment screening provisions for government-funded services will be tightened and accommodation and respite service providers will be required to report serious incidents involving clients to the Ombudsman. These are all positive initiatives.
The bill claims to promote the Government's ongoing responsibility for the social and economic inclusion of people with disability after the transition to the National Disability Insurance Scheme has been completed. It includes strategies for building systems focused on quality services and the prevention of abuse. It also claims to deliver on the Government's commitment to a disability service system that will increase choice and control for people with disability—a critical point. Labor is concerned because the bill, despite its positive objectives, repeals the explicit right to advocacy captured in the current Disability Services Act. This may have been an omission but it flies in the face of the individual-focused approach to disability services developed over the past decade. It was a Labor Government that moved the focus of services away from temporary care and support to deliver a change in the way we think about and deliver services for people with disabilities.
People used to be fitted to the types of services that were able to be delivered. Labor started allowing people to make their own life choices about the disability service that best suited their needs. The positive effects on those people and their families have been profound. It is critical that people with a disability continue to be involved in decisions that affect them. It is also critical that they can access appropriate support to fully realise the advantages of the person-centred approach this legislation aims to enact. This support includes advocacy to safeguard people where there may be risk of their rights not being fully upheld, including the investigation of reportable incidents, making complaints and ensuring appropriate flexibility in funded support. 30408 LEGISLATIVE COUNCIL 13 August 2014
The aims of this bill are noble but its provisions need improvement to match them. The Hon. Mick Veitch has spoken in more detail about this and has also foreshadowed some amendments. Those amendments are practical and will help to provide fundamental protections for some of the most vulnerable in our community. I fully support my colleague when he said "we need to do this right". I also support the amendment for the bill to be referred to a standing committee for examination. This is a matter of importance to me. I have taken a long interest in disability services over many years in my community work and in my role on Burwood Council where I chaired the Access Committee for five years. On many occasions I have had the privilege of witnessing the liberation of individuals and their families when the right support is provided at the right time. It makes all the difference in the world.
It was with this in mind that I was pleased to act as founder for the not-for-profit organisation Special Children Services Centre. The centre was established to provide support to families from non-English speaking backgrounds with children with an intellectual disability. The issue of inclusiveness within and among communities, particularly communities with language and cultural barriers, is important. The centre offers both practical and cultural support and takes services across language and cultural barriers to change the lives of kids. It offers early intervention programs for intellectually disabled children, including services to Chinese, Vietnamese, Korean and other local families. It remains a source of pride that I could play a role in such an important community service.
Labor's approach to disability services is one of the many reasons that it is the party of choice for me, and I am proud of Labor's record in this regard. The Labor Government delivered a landmark renewal of disability services through the Stronger Together programs. This was the largest investment in disability services in the history of this State and the most significant investment anywhere in Australia prior to the introduction of the National Disability Insurance Scheme.
Labor set out to do things differently from the past. We made a long-term commitment to achieve the best social and economic outcomes for people with a disability, their families and carers, and the broader community. We enabled service providers to be more responsive to the individual needs of families. Most importantly, we did it in partnership with the community through a pragmatic and consultative approach. That is the kind of approach this challenge needs, and it is the approach that our communities expect us to take to bills such as this. Our communities truly expect a bipartisan approach to this issue.
I accept that the Government's aims are true in regard to this bill, and so I join my colleagues in providing in principle support for this bill. However, much detail is to be defined by regulation and clear and useful amendments are proposed by Labor, which will ensure that our aims are reflected in a law with real strength and usefulness for those living with a disability. I strongly commend the amendment for referral to a committee that was moved by my colleague the Hon. Mick Veitch. I trust that the Government will work cooperatively with Labor on this issue. I thank members for their attention.
The Hon. NATASHA MACLAREN-JONES [12.20 p.m.]: I speak in support of the Disability Inclusion Bill 2014. I commend the Minister for his commitment to reform the approach to how people with disability are supported to achieve their goals. The bill replaces the Disability Services Act 1993 and has been aptly named as the theme of inclusion runs through it. The development of the bill has been informed by the feedback generated from an extensive, statewide consultation process which involved people from all walks of life across New South Wales. They shared their thoughts on how disability legislation should be reformed. The feedback received from this expansive consultation process indicated, amongst other things, strong support for a law which promotes the inclusion of people with disability in decisions made about their supports and services and many other aspects of their life. This feedback is consistent with the United Nations Convention on the Rights of Persons with Disabilities, the National Disability Strategy, the National Disability Agreement and the National Disability Insurance Scheme [NDIS], which all place a clear emphasis on inclusion.
The New South Wales Government is serious about promoting the inclusion of people with disability, and this commitment is demonstrated in this bill. The legacy provision of the bill will continue to operate after the NDIS takes over, thereby cementing community inclusion and respect for the human rights of people with disability as a lasting responsibility of the New South Wales Government. The objectives and principles of the bill strongly support the economic and social inclusion of people with disability. The bill also contains a new definition of "disability" based on the social model of disability, which says that disability is the result of barriers put up by society that prevent inclusion rather than a person's impairments. Through this definition the bill acknowledges society's responsibility to remove these barriers. 13 August 2014 LEGISLATIVE COUNCIL 30409
Furthermore, the bill introduces a requirement for the Department of Family and Community Services to develop a four-year State Disability Inclusion Plan that guides whole-of-government action to support the inclusion of people with disability in the community and improve access to mainstream services and facilities. The bill also recognises that for disability planning to be truly effective it must also be implemented at a local level. As such, it requires not only government departments but also local councils to develop disability inclusion action plans. The plans must include strategies to support people with disability—for example, strategies which encourage and create opportunities for people with disability to access the full range of services and activities available in the community.
The bill gives the Disability Council NSW a new role in advising on the content and implementation of disability inclusion action plans and ensuring that emerging issues relating to people with disability are addressed. The bill requires both the State Disability Inclusion Plan and disability inclusion action plans to be developed and reviewed in consultation with people with disability. This will help to ensure that the plans are pragmatic and effective. This bill has been named the Disability Inclusion Bill for one reason: It clearly demonstrates the New South Wales Government's commitment to supporting the inclusion of people with disability in all aspects of the community, as well as in decisions made about their supports and services.
Furthermore, it is evident that the Government has consulted every step of the way with those who will be most affected by the legislation and produced a bill which responds to their needs. As members would be aware, under the National Disability Insurance Scheme the responsibility for disability services will shift from New South Wales to the National Disability Insurance Agency by 1 July 2018. As such the role of the New South Wales Government in disability services will be significantly changed. Accordingly, a key priority of this bill has been to ensure the role of the New South Wales Government now and following transition to the NDIS is clearly articulated. The bill does this through legacy and transitional provisions which explain the long-term and immediate responsibilities of New South Wales in the context of the NDIS.
The legacy provisions will continue to operate after the NDIS takes over and confirm the enduring responsibilities of the New South Wales Government to people with disability. I am confident that the combined effect of these legacy provisions will facilitate lasting social change that will see the human rights of people with disability better recognised and make our communities welcoming and inclusive for people with disability. Thus the role of the New South Wales Government post NDIS will continue to be significant. In its objects the bill demonstrates the Government's clear and ongoing commitment to the human rights of people with disability and supporting the United Nations Convention on the Rights of Persons with Disabilities. It also focuses attention on achieving the social and economic inclusion of people with disability, facilitating their independence and enabling them to exercise choice and control over their lives.
The bill has a number of general principles, which relate to all people with disability, and additional principles which relate to particular groups of people with disability who often experience intersectional disadvantage. These groups include people with disability who are Aboriginal and Torres Strait Islanders or who are from culturally and linguistically diverse backgrounds or who are women and children. Both the general and additional principles must be considered in the provision of supports and services and also in the context of disability planning, to which I will now turn. As I mentioned before, under the bill the Government will create a four-year State Disability Inclusion Plan, which sets out government goals to support the inclusion in the community of people with disability and improve their access to mainstream services and community facilities. The State plan will provide for collaboration and coordination amongst agencies in the provision of supports and services.
Government departments and local councils are required under the bill to develop disability inclusion action plans that set out concrete measures to ensure people with disability can access services and facilities. The bill mandates that the Government actively consult with people with disability in both the preparation and review of the State Disability Inclusion Plan and disability inclusion action plans. The transitional provisions set out the responsibilities of the New South Wales Government leading up to the NDIS and will prepare people with disability, service providers and the New South Wales Government for transition to the NDIS through a focus on individualised funding arrangements and enhanced safeguards. The bill enables the Government to continue providing and funding supports and services to people with disability in the transition to the NDIS. It also focuses on the provision of financial assistance to individuals.
The bill adopts a risk management approach to funding and allows the New South Wales Government to ensure that funding is administrated responsibly. This approach allows conditions to be placed on individual funding arrangements, if necessary, to minimise risk where a person lacks capacity or is vulnerable. For 30410 LEGISLATIVE COUNCIL 13 August 2014
example, a person may be required to purchase a service from a provider which meets a certain level of quality and has adequate safeguards in place. The bill also requires funding providers to, first, ensure compliance with disability service standards; secondly, undertake compulsory probity checks on certain workers and volunteers; and, thirdly, report incidents of abuse and neglect. The bill provides for the role of the New South Wales Government now and after transition to the NDIS. I commend the bill to the House.
The Hon. CHARLIE LYNN (Parliamentary Secretary) [12.28 p.m.]: I am honoured to speak in support of the Disability Inclusion Bill 2014. The bill replaces the Disability Services Act 1993 and confirms the New South Wales Government's role in the provision of supports and services until the full implementation of the National Disability Insurance Scheme [NDIS] on 1 July 2018. It is more than two decades since the Disability Services Act 1993 was passed. Implicit in the passing of a long period is a natural progression in people's attitudes. We have seen this progression through significant changes in people's attitudes to and understanding of disability. People with disabilities are no longer treated as passive recipients of disability services but are now at the centre of decision-making over their supports and services.
Accordingly, there is a need for a change in the approach of the Disability Services Act, which is predicated upon the funding of specialist services for people with disabilities. That Act will be replaced by this legislation when it is enacted. This bill promotes a person-centred approach to disability services through a focus on client-directed supports and individualised budgets. The bill's focus is consistent with the NDIS and in this way it will support people with disabilities, their families and their carers to build their familiarity with these arrangements ahead of the transition to the NDIS.
The funding provisions contained in part 5 of the bill are transitional, meaning they will operate until the NDIS is fully implemented. These provisions provide a legal framework for funding arrangements that enables funding to be provided to or for people with disabilities, who are the target group. The bill enables maximum flexibility by allowing funding to be administered in several different ways or a combination of those ways to suit the individual's circumstances. Funding can be provided directly to the individual, to a person nominated by the individual, to a plan manager service, or to an organisation to provide services to the individual.
Sensibly, when funding is provided directly to an individual or to a person nominated by the individual he or she must enter into a written agreement with the Secretary to the Department of Family and Community Services. The agreement must specify certain particulars—for example, the supports and services to be obtained and what outcomes, goals and aspirations are to be achieved by the supports and services for the person with a disability. If necessary the funding can also place conditions on individual funding arrangements to minimise risk. This may be required where a person lacks capacity or is vulnerable to exploitation. In doing so the bill ensures that individual financial assistance is administered responsibly and in accordance with a person's wishes.
Part 5 also confirms the continuation of block funding to eligible service providers until the full takeover by the NDIS. I note that block funding is when a service provider is given a set amount of money that is not in the name of the individual service users. The bill places conditions on funding to eligible entities that act as quality control mechanisms to protect against poor service, exploitation and abuse. The bill also requires eligible entities to enter into an agreement about the provision of financial assistance with the secretary. The agreement must specify particular matters, such as the use of funding and the outcomes to be achieved for the people to whom they provide the services.
The bill allows for financial assistance to be terminated or suspended by a notice served on a person or eligible entity when there is a reasonable belief that there has been non-compliance with the prescribed conditions, the agreement under which the funding is provided or the conditions of a notice to provide certain information. Funding may also be suspended by notice served on persons or eligible entities when there is a reasonable belief that they are no longer using the supports and services or are obtaining supports and services by other means. The suspension and termination provisions in the bill help to ensure that public funds are used appropriately and for purposes that are consistent with the objects and principles of the bill.
It is accepted that people may not always be happy with decisions made about their funding, such as a decision to impose conditions on individualised funding. Accordingly, people will always be able to seek a review of a decision by the Department of Family and Community Services and the bill also allows for individuals to seek a review of certain funding decisions by the NSW Civil and Administrative Tribunal. I note, 13 August 2014 LEGISLATIVE COUNCIL 30411
however, that a decision to terminate funding that is related to the implementation of NDIS arrangements is not reviewable. This will prevent potential duplication in funding of a person or organisation by the State and Commonwealth and enable funding to be stopped efficiently in the transition to the NDIS.
As I have mentioned, the bill places a greater focus on individualised funding, which is arguably the cornerstone of the NDIS. In doing so the bill refocuses and aligns New South Wales with the national scheme, thereby enabling us to make a smooth transition. It is time for disability law to focus on the individual needs and choices of people with disabilities. I support the bill and commend it to the House.
Ms JAN BARHAM [12.34 p.m.]: On behalf of The Greens I speak in debate on the Disability Inclusion Bill 2014. I note that the bill replaces the Disability Services Act 1993 and that its objects and principles are intended to be in line with the rights of people with disabilities as stipulated in the United Nations Convention on the Rights of Persons with Disabilities. These rights include the right of people with disabilities to participate in and contribute to social and economic life, the right to make decisions that affect their lives, rights to privacy, and freedom from abuse and neglect. The bill also specifies principles relating to particular groups of people with disabilities including Aboriginal and Torres Strait Islanders, people from culturally and linguistically diverse backgrounds, women and girls, and children. I note the importance of the general principles of the Convention on the Rights of Persons with Disabilities, which are:
a. Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons;
b. Non-discrimination;
c. Full and effective participation and inclusion in society;
d. Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
e. Equality of opportunity;
f. Accessibility;
g. Equality between men and women;
h. Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
I state at the outset that The Greens fully support the intent of this bill as a piece of legislation to reshape and address the many barriers people with disabilities face in our communities across the State and beyond. Report after report, along with a multitude of worrying statistics, make clear the fundamental changes that are needed to be made to the way people with disabilities interact with and access mainstream services. These changes require us to transform and improve how we as a society support people with disabilities to fulfil their rights to access the same community participation that most of us take for granted. We have heard some emotional and honest words in this debate. It is always heartening to know that we all seek to work in consensus on issues such as this. I was touched by the comment the Minister made in his second reading speech:
The social model of disability is based on the premise that disability is not inherent in the person but arises from the interaction of a person's impairments with barriers put up by society to full and equal participation. Barriers may include attitudes towards people with disability or may exist in the built environment. I believe that it is not for people with disability to change to accommodate society but it is up to society to change to accommodate people with disability.
That is a single statement of intent and regard for the lives of people with disabilities and how society must change the way it provides for them. We in this place hope that this legislation will go some way towards doing that. One of the most profound and telling of the changes has been the paradigm shift in service provision: a move away from the traditional model of block funding where service users had little or no say in how services were provided to the new service model of individualised person-centred funding and putting the individual in the driver's seat.
This is where empowerment begins—the ability to control and oversee who provides what services, when, how and by whom, which is a great step forward for people with disability—and the ability to control funding with eligibility based on entitlement. The National Disability Insurance Scheme (NSW Enabling) Act that was passed by Parliament last year is one part of the evolving national and State framework that has developed since the signing in 2008 of the United Nations Convention on the Rights of Persons with 30412 LEGISLATIVE COUNCIL 13 August 2014
Disabilities. This bill marks another turning point and adds a key marker to continuing reforms of the disability sector and the wider society on a trajectory that leads us towards full implementation of the National Disability Insurance Scheme in 2018-19.
As those changes take shape we must ensure that the most vulnerable people in our society, who are those people with severe and profound disabilities and with cognitive and communication difficulties, are not left behind. Through these reforms it is important to develop ongoing communication with all parties involved in the process—government, service providers, both specialist and mainstream advocates, carers, families and, most importantly, people with disability—to ensure that everyone is brought along in the process and that the wishes and desires of people with disability are heard and acted on in the home, the workplace, recreational settings and in mainstream services such as education, housing and health. I have met with families of people with disability living in institutional settings who are worried about what risks and consequences change might bring. One thing we must learn is to have an open dialogue with stakeholders so that all parties are provided with clear, complete and accessible information about the changing environment and what it means for their lives.
The Minister mentioned block funding in his second reading speech and noted the need to maintain it in certain circumstances. I wholeheartedly agree. One way to ensure that the most vulnerable people receive good information and support is through advocates and the maintenance of well-resourced independent information and advocacy services. It is important that funding is maintained for those services, especially when we consider that many people with disability will be told that they fall outside the eligibility framework for the funding of services. Advocates provide a valuable resource to the entire community and offer specialist knowledge in particular areas, such as specific disability types. Going forward there must be a clear recognition of the role advocates play in the lives of people with disability. Unfortunately, in its current form, the legislation does little to deliver clear recognition of the rights to independent advocacy or to set guidelines on the role and responsibility of advocates with a specific understanding of the right of people with disability to include advocates in the development of individual service plans.
The Minister also stated that the bill is an instrument of social change, and I commend those comments. Social change that removes physical, attitudinal and structural barriers to people with disability requires significant adjustments across the institutions of education, health services, public transport and housing and in the infrastructure that supports those domains. As a signatory to the United Nations convention, we are legally bound by its principles as a human rights instrument to carry out policies, laws and administrative measures for securing the rights recognised in the convention and to abolish laws, regulations customs and practices that constitute discrimination.
It is disappointing that this bill does not unequivocally support the convention in full and without qualification. The objects of the bill suggest that the intent of the legislation is to support the convention only to the extent that it is reasonably practicable. It is not enough to be half-hearted in its application and adoption. It has been suggested that the convention is aspirational and all nations are on a path to progressive realisation. However, as a developed nation and one of the countries in which citizens enjoy a generally high standard of human rights, prosperity and opportunity, we cannot lose sight of the fact that the convention's objects are basic human rights that the rest of our society already takes for granted.
As the Minister and all other members are aware, by moving amendments I hope we can remove by amendment the "reasonably practicable" restriction and define that this bill is about supporting the implementation of the United Nations convention. Since the time of our adoption of the United Nations convention the Commonwealth has developed the National Disability Strategy to carry out the reforms necessary across six key policy areas: inclusive and accessible communities; rights protection, justice and legislation; economic security; personal and community support; learning and skills; and health and wellbeing. This is an important piece of public policy. I note that in response to it the New South Wales Government developed the National Disability Strategy NSW Implementation Plan 2012-2014, which states:
The goal of the NSW plan is to create a more inclusive NSW, where mainstream services and community facilities are accessible to people with disability, enabling them to achieve their full potential.
I also note that this plan was to have developed a baseline report with measurements against each of its policy actions in 2013. Despite questions being asked, it is unfortunate that we are still waiting for that report. This is why part 2 of the bill will be important for continuing and carrying forward the work necessary to fulfil the objectives of the National Disability Strategy. The development a State Disability Inclusion Plan is a welcome 13 August 2014 LEGISLATIVE COUNCIL 30413
initiative to pursue this work. Direct consultation with people with disability in preparing State plans and mandatory four-year reviews are good measures. However, this could be strengthened by including people with disability and their representative bodies in the review process.
The bill's provisions for mandatory disability inclusion plans for all government departments, agencies and the extension of mandatory inclusion planning to local councils improves on the current guidelines by making them as broad and far reaching as possible. I am pleased that the plans that are to be developed will be required to have clear strategies in place regarding how they will support people with disability, as set out in clause 12 (3) (b), and that they must show how the plan supports the goals of the State Disability Inclusion Plan. As I have stated in this place on previous occasions, I have had experience of working in local government when the development of a plan that addresses the needs of people with disabilities was an important part of the work I did, and so was being involved in the access committee of the council that informed the decisions and had input to strategic planning of the council.
The plan that was developed was not named a disability action plan but, rather, was named an access and inclusion plan. It was something of which the whole of the community was aware. One might say it was aspirational but I can say wholeheartedly that it was something the community embraced as a responsibility of the council to ensure that those plans were enacted. All local government authorities would feel the need to do that as they are close to their communities. What I am not seeing at a time when many councils are financially restricted is whether or not a financial incentive exists for them to do some of the work. Long ago there used to be incentives for councils to deliver plans and an infrastructure fund allowed them to do specific work that cost a lot of money, such as reshaping footpaths and fitting out 100-year-old buildings with ramps.
Funds previously were made available and if local councils ticked all the boxes about having their local access plans in place and they had consulted with their community, they could gain access to grants from the Government. I think that would be a worthwhile move forward. Perhaps Infrastructure NSW could have a specific section that allowed that type of funding to be made available to local government authorities and provide the incentive. I will comment on a fact raised by a number of speakers previously, particularly the Hon. Mick Veitch and the Hon. Paul Green, about some of the issues relating to regional areas. It is difficult in regional areas to access services. Despite an area looking quite close geographically on a map, it is often problematic to gain access to transport.
Very often people, particularly those with disability, and their carers are unable to access services. I have spoken with people in my North Coast community who are concerned about whether or not their needs will be met by new service providers. After reading some of the information that has been brought to the attention of the Commonwealth joint parliamentary committee, we are hearing from providers who are saying that they also have concerns about how they communicate the services they have available and how they are able to provide them in regional areas. We see a very different cost model involved when people have to travel to deliver a service. I wonder whether or not that is taken into account fully in the planning stage for individual funding.
I note also the specific role of this bill in addressing a long-held issue about complaints matters. This is not an issue that has come up recently; it has been around for a long time. The 2010 parliamentary inquiry into services provided or funded by Ageing, Disability and Home Care, in recommendation 47, called for the New South Wales Government to establish an independent organisation to "handle complaints about the provision of services (for issues that are not within the responsibility of organisations such as the NSW Ombudsman)". We are now hearing that this bill will provide the Ombudsman with increased powers and responsibility to handle various complaints regarding people with disabilities, whether those complaints be about their housing, services, support structures or, sadly, that they have been subjected to abuse by someone within the system in which they work.
I have tried to be open with the Minister in raising with him concerns about the submission received from the Ombudsman in relation to the draft bill. The Ombudsman called for additional amendments regarding the role of the Ombudsman's office in dealing with the screening system to protect the rights of people with disabilities through the establishment of a database and register. These are matters that are not included in this bill. I accept that the Ombudsman may feel that these matters have been adequately addressed or will be addressed in the future. I think it is important that we have on the record a submission of the Ombudsman, who has been a strong voice supporting the rights of people with disabilities, and noting that the Ombudsman has been reporting to government and raising points about the need for additional checks and balances to be put in place to support people with disabilities. Those checks and balances are not in this bill. 30414 LEGISLATIVE COUNCIL 13 August 2014
I put on record that only last week the Victorian Government introduced some of those provisions. I am hopeful that the Minister will be able to clarify whether or not New South Wales is lagging behind in not meeting the benchmark of having a database or register, or whether that is something that will come later as a further protection provision that New South Wales will offer people with disabilities. But, for the moment, I remain concerned that we do not have a full commitment—particularly as it is not a full commitment such as is being undertaken in other jurisdictions. At a time when there is meant to be consistency and conformity in these matters, it does not seem to be that way in New South Wales. I have raised these matters with the Minister, and I am hoping that he can bring to the House further information about them. There is also the matter of supported group accommodation and the role of the Ombudsman in reviewing incidents that occur in those places of accommodation. There are amendments that deal with that. Those are based on the Ombudsman's submission on the draft bill which states:
[The] office has consistently reported on serious incidents, and other significant risk factors, relating to people with disability residing in assisted boarding houses. The evidence demonstrates that people with disability in assisted boarding houses are some of the state's most vulnerable people (especially as they often do not have some of the "natural safeguards" available to others: such as family and independent advocates).
Consistent with the Ombudsman's submission, The Greens consider it is important to extend the jurisdictional reach of the NSW Ombudsman by including in the definition "assisted boarding houses". This is a matter for amendments, and no doubt the Minister will comment on those. I have outlined that The Greens have some concerns, but the general thrust of the bill is supported. We propose moving some amendments. I thank the Minister and others in this House, as well as the shadow Minister, Barbara Perry, for raising issues and continuing a productive dialogue.
The Hon. JOHN AJAKA (Minister for Ageing, Minister for Disability Services, and Minister for the Illawarra) [12.54 p.m.], in reply: I thank all members for their contributions to the debate—the Hon. Mick Veitch, the Hon. Marie Ficarra, the Hon. Paul Green, the Hon. Ernest Wong, the Hon. Natasha Maclaren-Jones, the Hon. Charlie Lynn and Ms Jan Barham. Their contributions were clearly genuine, and I thank them for adopting what I consider to be a genuine and bipartisan approach to this bill. As Minister for Disability Services, I have stated on many occasions in this Chamber that I believe all issues relating to disability services and people with disabilities must be dealt with on a bipartisan basis. I will continue to hold that position.
As Minister for Disability Services, I meet many people with disability, their families and carers. They tell me that they want to make choices about how they live their lives. They tell me that they need to be consulted about issues and decisions relevant to them. They tell me that they want quality supports and services and safeguards to prevent abuse and neglect. They tell me that they want to contribute to planning for the future for people with disability in New South Wales. People with disability do not ask for much—they just ask that we respect the fact that they are entitled to the same human rights as other members of the community.
It is an exciting time for people with disability, their families and carers as we move toward the National Disability Insurance Scheme. This scheme emphasises choice and control—something that we in New South Wales believe in and are providing where possible. With this bill, we take this belief much further. This is a bill with an emphasis on human rights and choice and control. When the bill is enacted, the new law will replace the Disability Services Act 1993 and ensure the New South Wales Government's role in the provision of supports and services until the full implementation of the National Disability Insurance Scheme on 1 July 2018. But that does not mean that New South Wales will then cease to have any responsibility for people with disability. Once the full implementation of the National Disability Insurance Scheme takes place, New South Wales will continue to play an important role for people with disability in New South Wales. In fact, it is a role that is strengthened with this bill.
The objects, principles and definition of disability are all legacy provisions—provisions which will remain following the transition to the National Disability Insurance Scheme. Other legacy provisions are the continuation of the Disability Council NSW, and the disability planning provisions. The bill's objects reflect the current thinking of today: that people with disability have the same human rights as other members of the community and that the community has responsibility to facilitate the exercise of those rights. This is the first object of the bill and a guiding theme throughout. Other objects include promoting the independence and inclusion of people with disability and enabling people with disability to exercise choice and control. These are important objects both for the transitional provisions and also for the legacy provisions that will remain.
One of the most significant and enduring changes from the previous legislation is that the bill contains a social model definition of "disability". This recognises that disability results from the interaction of a person's 13 August 2014 LEGISLATIVE COUNCIL 30415
impairment with various barriers that prevent that person from participating fully and effectively in the community on an equal basis with others. It clearly follows that government and the community have a responsibility to work to break down these barriers. This leads to the proposal under this bill to strengthen disability planning in New South Wales.
A new requirement introduced by the bill is for a whole-of-government State Disability Inclusion Plan. This will be a plan to support community inclusion for people with disability and improve their access to mainstream services and community facilities. The State plan must provide for collaboration and coordination among government departments, local councils and other entities in the provision of supports and services. People with disability will be consulted on the development of the State plan, which will be publicly available and reviewed no longer than every four years. Together with the overarching State Disability Inclusion Plan, disability inclusion action plans also will have to be prepared by public authorities. As is the present case, State government departments will need to have plans, but their requirements are clearer and more appropriate than currently.
Significantly, local councils also will be required to have disability inclusion plans. This will promote integrated planning and service delivery between local and State governments. Again, people with disability will be consulted on these plans and their review. A report on the implementation of plans must be provided in each authority's annual report. The Minister for Disability Services also will table in Parliament an overarching report about the implementation of these plans across government. The plans also will need to be provided to the Disability Council NSW, which may provide advice on the content and implementation of plans to public authorities. The bill moves the provision of the Disability Council NSW from the Community Welfare Act 1987 and provides a stronger role for the council, recognising its special significance and the lived experience of its members in advising on issues that affect people with disability.
[The Assistant-President (Reverend the Hon. Fred Nile) left the chair at 1.01 p.m. The House resumed at 2.30 p.m.]
Pursuant to sessional orders business interrupted at 2.30 p.m. for questions.
Item of business set down as an order of the day for a later hour.
QUESTIONS WITHOUT NOTICE ______
WESTCONNEX MOTORWAY
The Hon. LUKE FOLEY: I direct my question without notice to the Minister for Roads and Freight. On 25 June the Minister admitted that he may have gone "too early" by releasing WestConnex plans. Homes, businesses and a nursing home were purchased unnecessarily, resulting in the spending of tens of millions of dollars of taxpayers' money. How many millions of dollars has the Minister wasted? How many lives have been unnecessarily disrupted?
The Hon. DUNCAN GAY: One has to love the Labor Party. It wants the project—
The Hon. Greg Pearce: No, you don't.
The Hon. DUNCAN GAY: Labor members do when they are in certain circles but in others they say they do not. How many millions of dollars have I wasted? Absolutely none.
The Hon. Walt Secord: That is a big call.
The Hon. DUNCAN GAY: It is a big call when one thinks about the $500 million for the Rozelle metro that those opposite were involved in—there was funding of $500 million, yet not an inch of track was laid. In putting together the biggest project in this State's history the Government has talked to the community and changes have been made to improve the project in a couple of instances, not the least of which was listening to our colleagues who represented the people of Ashfield. Unlike the Labor Party, which did not give a damn about Ashfield, we sat down and looked at it with the community. We said, "There may be a better way to do this" and we did it. That saved a bit of time and $30 million into the bargain. Those opposite could not do that. This is the politics of envy. They could not come up with anything that would fix the problem. They could not come up with a financing package. They are now sitting on the other side whinging because they were left out. They had no vision, no gumption and no ideas. 30416 LEGISLATIVE COUNCIL 13 August 2014
WESTCONNEX MOTORWAY
The Hon. DAVID CLARKE: I address my question to the Minister for Roads and Freight. Will the Minister update the House on the delivery of Australia's largest road and infrastructure project, the WestConnex?
The Hon. Marie Ficarra: That is a supplementary question!
The Hon. DUNCAN GAY: I was hoping for a supplementary question; I shall consider this one. This is a great day for Sydney: the start of the WestConnex process. Stage one, the environmental impact statement, is out for the community to look at and comment on. This is the beginning of the approval process that we have worked on and, if we get through that, it will begin in 2015. It is a day long overdue. Australia's biggest urban road project will provide greater Sydney with a continuous free-flowing motorway. It will ease congestion, create jobs and connect communities. WestConnex will provide more than $20 billion in economic benefits to New South Wales, create 10,000 jobs and help motorists bypass up to 52 sets of traffic lights.
WestConnex cannot come a moment too soon for the motorists of Sydney. Today the New South Wales and Federal governments—I thank the Federal Government for its involvement—announced key milestones in the delivery of this world-class motorway. We could not get Albo to come in and help, but the grown-up government we now have in Canberra is weighing in and helping. It is only through its help that we were not only able to get stage one but also able to fast-track stage two. The politics of envy is on the other side of the House. The Department of Planning has put on display the environmental impact statement for the M4 widening, which is part of the first stage of WestConnex. That is not an environmental impact statement on WestConnex; it is an environmental impact statement on the widening of the M4. This project is on track for construction to start early next year.
The environmental impact statement shows that the project will achieve travel time savings of up to 74 per cent for motorists using this stretch of WestConnex. It will save motorists up to 100,000 hours of travel time a day and $1 million a day on car maintenance. We have been carrying out unprecedented community consultation on every aspect of this project to date, and this will continue with the environmental impact statement on display for the next 30 days. Drop-in information sessions and public displays are being held along the corridor, and I encourage the community to get involved. Pending approval, the design and construction contract for the M4 widening will be awarded late this year. This would see the M4 widened to four lanes in each direction from Parramatta to Homebush as well as ramp upgrades. The ramp upgrades include new direct access from southbound Homebush Bay Drive to the M4 westbound via a G-ramp.
The Hon. Greg Donnelly: A what ramp?
The Hon. DUNCAN GAY: A G-ramp, named after the Western Sydney Giants.
[Interruption]
The eastern suburbs trendy pretending to be in the Labor heartland would not have a clue about that. He asked "Who?" when we are talking about the mighty Western Sydney Giants. He has no idea whatsoever. As I was saying, there will be a new M4 connection for motorists heading eastbound from Hill Road, supporting the growth around Sydney Olympic Park. I am thrilled the four companies shortlisted for construction of the M4 widening have submitted their tenders and they are now being assessed. The M4 widening is an exciting precursor to the tunnel to be built under Parramatta Road called the M4 East, for which there will be a separate environmental impact statement. [Time expired.]
WESTCONNEX MOTORWAY
The Hon. ADAM SEARLE: I direct my question without notice to the Minister for Roads and Freight. In the interest of transparency and accountability, will the Minister reveal the inflationary arrangements for the tolls on the WestConnex? Will they be adjusted every three months?
The Hon. DUNCAN GAY: The Government will be releasing all the relevant information. The information the member is seeking will be carefully evaluated. I will get back to the member in due course. 13 August 2014 LEGISLATIVE COUNCIL 30417
POLITICAL DONATIONS LEGAL CHALLENGE
Dr JOHN KAYE: I direct my question to the Leader of the Government, representing the Premier. Will the Minister give the House an undertaking that the Baird Government will mount the strongest possible defence against the High Court challenge to the constitutional validity of section 96I of the Election Funding, Expenditure and Disclosures Act 1981 by Newcastle lord mayor and developer Jeff McCloy, including providing the court with evidence of the corruption risk associated with donations from developers and other prohibited donors?
The Hon. DUNCAN GAY: I thank Dr John Kaye for his question. It goes without saying that this is a timely and important question. I am advised that Mr Jeffrey McCloy, the Newcastle lord mayor, and two companies he is associated with have launched High Court proceedings challenging the ban on property developers making political donations under section 96GA of the Election Funding, Expenditure and Disclosures Act.
The PRESIDENT: Order! I call the Hon. Steve Whan to order for the first time.
The Hon. DUNCAN GAY: The proceedings have the potential to impact on all sector-specific bans on political donations and the Government will defend the validity of the provisions. The Government has been aware of the risk of a possible challenge to these provisions and has already appointed an expert panel, chaired by Dr Kerry Schott, to consider reforms to donation laws more generally. The expert panel's terms of reference require it to consider constitutional constraints, including those identified by the High Court in its 2013 decision in Unions NSW and Ors v State of New South Wales. I expect that the expert panel will now have regard to these further High Court proceedings, although a decision may not be handed down—
The PRESIDENT: Order! I call the Hon. Dr Peter Phelps to order for the first time.
The Hon. DUNCAN GAY: —by the court before the panel reports. When the former Government introduced the ban on property developers making donations, the very strict caps that now apply to all donations were not in place. Since 1 January 2011 there has been a cap of $5,000 for political donations to a registered political party and a cap of $2,000 for political donations to an elected member or candidate. As members would be aware, these caps are not being challenged in the McCloy case.
Dr JOHN KAYE: I have a supplementary question. I thank the Minister for his answer. Will the Minister elucidate his answer by telling the House what steps his Government is taking to defend the High Court challenge?
The Hon. DUNCAN GAY: I wear many caps in this place but not one of them involves being a lawyer. We will be taking all the appropriate steps, such as briefing legal counsel and defending the matter in the most rigorous way.
ILLAWARRA INFRASTRUCTURE AND SERVICES
The Hon. TREVOR KHAN: My question is addressed to the Minister for the Illawarra. Could the Minister provide an update on the Illawarra Community Advisory Panel and New South Wales Government's plans for the Illawarra area?
The Hon. JOHN AJAKA: A few weeks ago I announced the successful applicants appointed to the 2014-16 Illawarra Community Advisory Panel [ICAP]. The role of the panel is to provide strategic advice and recommendations on the way the New South Wales Government works with others to ensure the strategic growth and advancement of the Illawarra region. These fantastic individuals are the ears and eyes of the area. They are experts in their fields and will provide a wealth of advice. Advisory panels in regions are important, and this Government is dedicated to transforming the Illawarra region and improving infrastructure, transport, education, health and other services. Being advised by local professionals of what the best course of action is to achieve growth in the region will benefit everyone in the Illawarra.
Growth is what this Government does—we turn advice and planning into real and actual results. We are getting on with the job of transforming the Illawarra and New South Wales. This year's State budget announcement was a major step forward in rebuilding infrastructure and services in the Illawarra. The Baird Government is delivering massive funding in the health, education, transport, disability services, ageing and 30418 LEGISLATIVE COUNCIL 13 August 2014
police sectors, following years of Labor's neglect of the Illawarra region—which it simply took for granted. The big win for the region in this year's budget was the allocation of a staggering $217 million for roads alone. The New South Wales Liberal-Nationals Government has delivered record spending on roads in the Illawarra since its election and continues to deliver, with record funding allocated in this year's budget. I was delighted with this record road funding for our area. It will create jobs, boost regional revenue and attract more visitors.
Other notable achievements for the Illawarra in the budget include a share of the $193 million Transport Access Program, which provides a better experience for public transport customers by delivering accessible, modern and secure transport infrastructure; $47.2 million to continue work on the Illawarra Elective Surgical Services Centre at Wollongong Hospital; $8 million to begin construction of the Bulli Hospital Aged-Transitional Care Unit; and $10.6 million to upgrade and refurbish the Wollongong Courthouse.
The PRESIDENT: Order! I would be grateful if Government members could reduce the level of conversation in the Chamber.
The Hon. JOHN AJAKA: Upgrading the courthouse will improve services for the community, police and legal professionals. In regard to the Illawarra Community Advisory Panel, there was a rigorous application process to ensure that the people coming forward provided recommendations and suggestions to achieve the best outcomes for the region. I wanted our Government to get objective advice that I could rely on and work with to continue building on the existing assets of the region.
The panel members selected from the four local government areas of the Illawarra region have a broad range of expertise and experience in areas including aged care, disability and community services, environmental services, education, business and economic development. A minimum of four formal meetings will be convened annually over two years. Panel members will also meet in between formal meetings to progress key priorities and projects identified by the panel. An induction session is being held today and the first formal meeting is scheduled to take place shortly. I look forward to working with each and every person on the panel. They are helping this Government transform and improve the region after years of neglect from those opposite.
LOCAL GOVERNMENT ELECTIONS
Mr DAVID SHOEBRIDGE: My question is directed to the Minister for Roads and Freight, representing the Minister for Local Government. Will the Minister specify in which local government areas, apart from the City of Sydney, the Government plans to roll out the Melbourne-style business voting changes? Do they include Wollongong, Newcastle, Parramatta and North Sydney?
The Hon. DUNCAN GAY: I am tempted to say "Woollahra", but I will not. As far as I am aware—
Mr David Shoebridge: Are you going to protect Woollahra and your mates there?
The Hon. DUNCAN GAY: Mr David Shoebridge has asked me a question. I am not sure whether he wants to hear the answer or just to prattle on like an idiot. If he does not want the answer, that is fine by me.
Mr DAVID SHOEBRIDGE: I ask a supplementary question. Will the Minister elucidate his illuminating answer by referencing in which local government areas the Government plans to roll out these appalling changes?
The PRESIDENT: Order! Supplementary questions must seek an elucidation of a Minister's answer. In view of the answer that was given, the member's question was not seeking an elucidation.
WESTCONNEX MOTORWAY
The Hon. WALT SECORD: My question without notice is directed to the Minister for Roads and Freight. In light of evidence given in the Supreme Court yesterday that Tony Shepherd as a senior executive of Transfield Holdings was involved in discussions in late 2002 to allegedly drive up traffic forecasts for the Lane Cove Tunnel, does Mr Shepherd retain the full confidence of the Minister as the Chair of the WestConnex Delivery Authority?
The Hon. DUNCAN GAY: I thank the member for his question. It was a question I expected from him, given his previous track record. It is a pretty grubby, low question. 13 August 2014 LEGISLATIVE COUNCIL 30419
The Hon. Walt Secord: Answer it.
The Hon. DUNCAN GAY: If the member wishes to take offence, he can.
The PRESIDENT: Order! Ministers and members will cease conducting a conversation across the Chamber. This is an opportunity for the Minister to answer questions.
The Hon. DUNCAN GAY: It is interesting to hear The Greens former barrister, who claims to want to protect the rights of people, weighing in to allow comment on a court case that is still underway. Allegations have been made and the case has not finished.
Mr David Shoebridge: Point of order: It is not in order for the Minister to make a random character attack on a member that is unrelated to the question.
The PRESIDENT: Order! The member will resume his seat. He and the Minister should calm down. The Minister has the call.
The Hon. DUNCAN GAY: In part, apart from the slur on the character of a great Australian, I was asked whether I had full confidence in Tony Shepherd. I have 100 per cent confidence in Tony Shepherd. He is an outstanding Australian who has delivered projects across this city and the Commonwealth. He has been honoured for his work in this country. He is a well-respected man and former head of the Business Council of Australia. Do I have confidence in him? Of course I have confidence in him.
ISLAMIC STATE OF IRAQ AND THE LEVANT
Reverend the Hon. FRED NILE: My question without notice is directed to the Minister for Roads and Freight, representing the Premier. Is the Government aware that black Islamic State of Iraq and the Levant [ISIL] flags are being flown in Lakemba, Bankstown and Punchbowl outside Muslim shops and possibly in other Sydney suburbs? Is the Government also aware that these flags of a prohibited terrorist organisation incite racial hatred and increase tensions in Sydney? What action is the Government and particularly the NSW Police Force taking to ensure that these actions do not add to already tense times and provoke violence?
The Hon. DUNCAN GAY: I am totally unaware of the concerns the member has raised. If they are correct, and I have no reason to disagree with the member, it is a matter for my colleague the Minister for Police and Emergency Services. I will pass the question on for his urgent attention.
ROAD TOLL NOTICES
The Hon. HELEN WESTWOOD: My question without notice is directed to the Minister for Roads and Freight. What is the Minister's response to Blue Mountains resident Peter Savio, who has written to him repeatedly about Roads and Maritime Services [RMS] incorrectly sending him toll notices at least seven times in a six-month period for an interstate vehicle with the same registration plate number? Why did it take RMS more than six months to respond to evidence? Was it due to staff cuts within his department and poor photographic equipment?
The Hon. DUNCAN GAY: I thank the member for her question in which she has raised a number of issues. She has thrown the proverbial sink at it and mentioned everyone who she thinks may possibly be a problem. I do not know off the top of my head—
The Hon. Walt Secord: He wrote to you.
The Hon. DUNCAN GAY: How many letters do I get? More than 20,000 a year?
The PRESIDENT: Order! I call the Hon. Walt Secord to order for the first time.
The Hon. DUNCAN GAY: I receive more than 20,000 letters a year at my address and I do not remember all of them.
The Hon. Jennifer Gardiner: Most of them are thanking him for the roads he built. 30420 LEGISLATIVE COUNCIL 13 August 2014
The Hon. DUNCAN GAY: I thank my colleague. There are a damn lot of them thanking me for the work I have done to fix up the mess left by members opposite. Occasionally there is a situation in which someone has a problem. I obviously do not remember the particular letter, but if the member has the information and wishes to talk to me or one of my staff after question time I am more than happy to follow it up.
TENANCY DISPUTES
Mr SCOT MacDONALD: My question is addressed to the Minister for Fair Trading. How is NSW Fair Trading on behalf of the New South Wales Government assisting residents in resolving tenancy disputes?
The Hon. MATTHEW MASON-COX: I thank Mr Scot MacDonald for an excellent question that gives me another opportunity to educate members opposite about the great job Fair Trading is doing in this area. As I mentioned yesterday, it was my pleasure to go to Grafton on 31 July to open this service as well as the new offices of the Rental Bond Board. I thank in particular two people in Fair Trading who did a wonderful job setting up the office.
The Hon. Mick Veitch: The commissioner.
The Hon. MATTHEW MASON-COX: Indeed, the commissioner has done an excellent job, as has the team of people who worked on this for about six months. Mr Daniel Hornas, manager of the New South Wales Rental Bond Board area office in Grafton, along with his wonderful partner, Rosalind Becroft, both came from Sydney to set up the office. It is worth acknowledging the efforts of these two people in particular in setting up this important service in Grafton. Some other people also moved up to Grafton from Sydney and I spent a bit of time with them to understand their experience of moving to a country centre. They could not have been happier. They were happy to give up the rat race of Sydney to live in country New South Wales.
Like the former member for Monaro, I understand the joy of living in regional New South Wales. I think more members on the opposition benches should get out of Sydney and think about moving to regional New South Wales. Let us be frank, Country Labor needs a few more members. The Hon. Mick Veitch is doing a wonderful job but after the next election he will be the only one representing Country Labor and regional New South Wales. The Hon. Steve Whan will be gone after he has had his shot at Monaro and we will end up with only one regional Opposition member. A little relocation would go well for members on the other side of the Chamber. After a six-month trial this new service has proven to have been well received by tenants in New South Wales.
The PRESIDENT: Order! There is too much audible conversation in the Chamber.
The Hon. MATTHEW MASON-COX: Fair Trading received 1,522 tenancy complaints.
The PRESIDENT: Order! I call the Hon. Mick Veitch to order for the first time.
The Hon. MATTHEW MASON-COX: Eighty-eight per cent of those complaints were resolved in a timely fashion and without any cost to tenants. That is an excellent result. The Leader of the Government said that he receives many letters from people telling him what a great job he is doing. Fair Trading receives an enormous amount of mail as well. In fact, staff at the department received many emails thanking them for this service that has resolved these issues in a timely fashion without any cost to the complainants.
I congratulate Fair Trading and Daniel Hornas, Rosalind Becroft and others who have moved from Sydney to Grafton. I also congratulate those from the Grafton community who have been employed in this important service. I note in closing that we provide a range of services in Grafton. The tenancy disputes that I mentioned range from mundane, small things such as repairs and maintenance through to significant alterations to premises. Mundane members of the Labor Party should take note. It is important to understand that these are real issues in people's lives. Fair Trading is intervening and making sure that these issues are resolved to the satisfaction of all parties.
ASBESTOS REMOVAL
The Hon. STEVE WHAN: My question without notice is directed to the Minister for Ageing, representing the Minister for Health. Recent air quality studies in the Australian Capital Territory have shown 13 August 2014 LEGISLATIVE COUNCIL 30421
that even houses where loose-fill asbestos insulation has been removed still show readings of asbestos in the atmosphere of the homes. They have shown that loose-fill asbestos insulation has made its way through wall cavities, under floors, into built-in wardrobes and through ducted heating systems. Given the recent revelations about the quality of air in Mr Fluffy homes in the Australian Capital Territory, will the Health department update its advice to the owners of homes with the so-called Mr Fluffy insulation in New South Wales?
The Hon. JOHN AJAKA: I understand that the member raised this issue in his adjournment speech last night. I am also aware that the Minister for Health is looking into the matter. I understand that this has been a long-standing issue. In fact, it arose during the time that members opposite were in government. I will refer the question to the Minister for Health and return with an answer.
The Hon. STEVE WHAN: I ask a supplementary question. Will the Minister elucidate his answer to confirm that the current advice for home owners with loose-fill insulation being provided by the Department of Health and WorkCover is based on 1993 tests of seven houses conducted in Queanbeyan?
The Hon. JOHN AJAKA: As I indicated earlier, when members opposite were in government, they were well aware of this issue in their 16 years. As I indicated, I will refer the question to the Minister for Health.
STATE INFRASTRUCTURE
The Hon. JENNIFER GARDINER: My question without notice is addressed to the Minister for Roads and Freight. Will he advise the House on how the New South Wales Government is funding and delivering vital infrastructure for the State? Is he aware of any alternative proposed approaches?
The Hon. DUNCAN GAY: I am. I thank the Hon. Jennifer Gardiner for her question. As this House knows, the Baird-Stoner Government is delivering the critical infrastructure that our State needs. Since 2011 we have delivered successive record Roads budgets, including $5.5 billion in 2014-15 which supports the delivery of some 4,000 projects. The Opposition spokesman will know that because when we did a television story on it and the Opposition saw the 4,000 projects, they put a question on notice to get information, and they got over 4,000 projects back. We do not tell fibs. We say what we are doing and we do what we say.
We inherited a budget from Labor with an unsustainable debt and an economy that had become the disgrace of the nation. Three years later, we have secured that budget and we are at the top of the nation on all leading economic indicators. We have done that by managing the State's finances properly—ensuring for the first time since 1996 we are not spending more than we are earning. Importantly, we funded our infrastructure plan by prioritising projects that will boost productivity, grow our economy and create jobs. We have sensibly entered into a conversation.
The PRESIDENT: Order! I call the Hon. Steve Whan to order for the second time. I call the Hon. Lynda Voltz to order for the first time.
The Hon. DUNCAN GAY: We had a very hard conversation with the public on recycling of funds from the long-term lease of mature State infrastructure assets. Sadly, I have to say that at every turn we were openly opposed by the Labor Party. I have been asked whether I am aware of any alternative approaches and I have to say I am aware only of a recent speech by the Leader of the New South Wales Labor Party, John Robertson, who is a former transport Minister and who said in his speech to Labor Party delegates:
Labor will get on with the job of building the North West Rail Link, the M4 East and M5 East … Labor will get the job done.
Really? No-one believes that. There is even silence from Opposition members because they know those are the most shonky words we have heard in a long time. This is a hollow promise from hollow men and women because they cannot fund it. It is easy to make the promise but they have to have the funds to deliver it. How will they fund the North West Rail Link? How will they fund the M5 East? How will they fund the M4 East? We will look at the alternatives to see what they can do. First, they have said no to the leasing of infrastructure so they cannot use that money. That leaves only one alternative. Are they going to use tolls? Silence! If they are not using tolls, what are they going to use?
The Hon. Steve Whan: Point of order—
The PRESIDENT: Order! The Minister's time has expired. Does the member still wish to take a point of order? 30422 LEGISLATIVE COUNCIL 13 August 2014
The Hon. Steve Whan: Mr President, I was going to draw your attention to the disorderly way in which the Minister is trying to prompt interjections from the Opposition, and how strenuously we are resisting him.
The PRESIDENT: Order! The Hon. Steve Whan has made his point. It is a matter on which I have counselled the Minister on previous occasions.
The Hon. JENNIFER GARDINER: I ask a supplementary question. Will the Minister elucidate his answer?
The Hon. DUNCAN GAY: I thank the Hon. Jennifer Gardiner for her further question because it is an important question that the people of New South Wales are asking: How will Labor members pay for their promises? They do not have a pot to put anything in because they have no fiscal responsibility. The answer lies in two areas: They either increase taxes and charges, or they cut the money that is currently being spent on schools, education, police and health. Government members get the picture. Labor members are out there promising with nothing to back it up. Is it not obvious that such a major speech from the so-called leader of a political party should have generated support, media attention and stories? There was silence after that speech, which is an indication that the Opposition knows what I am saying is true.
Labor's whole policy platform is based on myth. It is a meaningless policy. It is a "Me now, please" policy. Labor members are not prepared to make the hard decisions. They never were prepared to make the hard decisions, but they want to make promises. They have not learned anything from their 16 years of neglect of this State. They were a sorry lot in government and they are sorry lot now, and that is why Labor members are destined to spend decades sitting on the losers' lounge
LOCAL GOVERNMENT ELECTIONS
Mr DAVID SHOEBRIDGE: My question is directed to the Minister for Roads and Freight, representing the Minister for Local Government. Will the Minister advise in which local government areas, apart from the City of Sydney, the Government plans to implement the Melbourne-style business voting system? Does it include Parramatta, Newcastle, Wollongong and North Sydney?
The Hon. DUNCAN GAY: I thank Mr David Shoebridge for his question and for the polite way in which he asked it. There is nothing nicer than a polite Greens member asking a question. My answer is that, as far as I am aware and as far as has been indicated by the Minister, we have only one local government area in which we have plans to do that, and that depends on what happens in the upper House to the bill that will be introduced by the Hon. Robert Borsak. If that is passed by the upper House we have indicated that we will take it on as a government bill into the lower House to restore democracy, in which we take a lot of pride— something that The Greens work desperately to keep out of the City of Sydney.
Mr DAVID SHOEBRIDGE: I ask a supplementary question. Will the Minister elucidate his answer by explaining why the Minister for Local Government said the regulations would allow it to be rolled out in places including Parramatta, Newcastle and Wollongong?
The Hon. DUNCAN GAY: Those comments are not in conflict with the answer I gave. Mr David Shoebridge has to get his questions right. He asked: Do we have any plans? I said, "… as far as I am aware …" we do not have any plans. This legislation could be rolled out into other areas. I have not seen the legislation in its full form but I imagine that it will be discrete to the City of Sydney.
GAS SUPPLY (CONSUMER SAFETY) REGULATION
The Hon. PETER PRIMROSE: My question without notice is directed to the Minister for Fair Trading. Will he outline the operation of the Gas Supply (Consumer Safety) Regulation that commenced on 1 September 2012? Is he aware of any concerns regarding the operation of this regulation? If so, what does he propose to do about them?
The Hon. MATTHEW MASON-COX: I thank the member for that particularly detailed question. I will take it on notice. It is an area that the member obviously has some concerns about, and I will be very pleased to take the question on notice and provide him with a detailed answer addressing those concerns. 13 August 2014 LEGISLATIVE COUNCIL 30423
The Hon. PETER PRIMROSE: I ask a supplementary question. Can the Minister elucidate regarding any matters that are of concern to him relating to the operation of the regulation?
The Hon. Catherine Cusack: Point of order: It is not open to the member to ask the Minister to elucidate when the Minister's answer was that he was taking the question on notice.
The Hon. Peter Primrose: To the point of order: I accept that the Minister indicated that it was a detailed question and that therefore he would take it on notice and give a detailed response. However, I would have thought as Minister he would be aware of concerns generally in relation to a matter.
The PRESIDENT: Order! The Hon. Peter Primrose has encapsulated why his question is out of order: in repeating what the Minister said, the member made quite clear that the additional matters to which he referred were in fact new matters and not matters raised in the Minister's answer; therefore there was no elucidation. The supplementary question is out of order.
GOING HOME STAYING HOME
The Hon. NATASHA MACLAREN-JONES: I address a question to the Minister for Ageing, representing the Minister for Family and Community Services. Can the Minister update the House on the New South Wales Government's Going Home Staying Home reforms to specialist homelessness services?
The Hon. JOHN AJAKA: I thank the member for her question. All too often the most vulnerable people are pushed to the margins of our community. Tackling homelessness is complex—there are no easy answers. I am proud to say this Government is committed to helping the most vulnerable people in our community. Under this Liberal-Nationals Government, those who are homeless or at risk of homelessness will not be pushed to the margins of our community. In June my colleague the Hon. Gabrielle Upton announced the most significant reform to homelessness in more than a generation. The New South Wales Government is investing a record half a billion dollars over the next three years to tackle homelessness head on. My colleagues the Premier, the member for Menai and Minister Upton saw firsthand the great work being done by Wesley Mission in south-western Sydney for families and young people, as well as women and children escaping domestic and family violence. As Reverend Dr Keith Garner, Chief Executive Officer of Wesley Mission, then said in the media release:
The Going Home Staying Home reforms have not only maintained services for crisis accommodation but addressed the need for prevention ...
He goes on to say:
We are now moving from piecemeal approaches to a more strategic model of service delivery with wrap-around services to help people at every step of the way.
I know there are those opposite who genuinely share the concern of members on this side of the House for those most in need. That is why it is so disappointing that Labor has rolled out a campaign built on misinformation and fear.
The PRESIDENT: Order! I call the Hon. Sophie Cotsis to order for the first time.
The Hon. JOHN AJAKA: Sadly, this is the same old Labor we have come to know and expect. Labor members have no real plans or ideas to deal with homelessness. They seem more interested in headlines than in helping people. The candidate for Balmain, Verity Firth, posted an image on her Facebook page on 23 July, saying:
NSW Labor is committed to continuing the fight against the Liberals' cuts to women's services.
The image features Elsie's Women's Refuge. The trouble is, on 23 June St Vincent de Paul and Domestic Violence NSW confirmed Elsie's was remaining open—it was not going to close. Maybe for those opposite that was not clear enough so I quote this from their press release:
Elsie's will remain open and continue to provide crucial support to women and children.
The PRESIDENT: Order! I call the Hon. Lynda Voltz to order for the second time. I call the Hon. Sophie Cotsis to order for the second time. 30424 LEGISLATIVE COUNCIL 13 August 2014
The Hon. JOHN AJAKA: Those who are homeless or at risk of homelessness deserve the facts, not some fiction created by candidates or by Sussex Street. While many service providers have changed under the reforms, the services they deliver will continue and improve. There is more funding overall, better and more services, and in the places they are needed most. This is a Government that will fight for those most in need by delivering real reform.
CLEAN ENERGY
The Hon. ROBERT BORSAK: My question without notice is directed to the Minister for Fair Trading, representing the Minister for the Environment. Was the Minister correctly quoted recently when he said, "When it comes to clean energy, we can be Australia's answer to California"? Is the Minister aware that the Prime Minister's Business Advisory Council chairman has pointed to an article in New Geography that highlights the futility and delusion embodied in California's ultra-green energy policies, which will push up electricity prices by 47 per cent in the next 16 years? Does the Minister still want New South Wales to be "Australia's answer to California"?
The Hon. MATTHEW MASON-COX: I thank the member for the question. I understand the Minister for the Environment is passionate about renewable energy; indeed, this Government has done a whole range of things in that regard. I acknowledge there is a Federal review of the renewal energy policy. Those matters will await that decision. Obviously, New South Wales will respond once that is clear. In regard to details on what the Minister did or did not say, I am happy to get a response and those details from the Minister so that they can be provided to the member along with other details that the question raised.
RAILWAY STREET, WICKHAM
The Hon. LYNDA VOLTZ: My question without notice is directed to the Minister for Roads and Freight, representing the Minister for Transport. Given that the Lass O'Gowrie Hotel and several other local businesses have just been informed that they will lose all their passing trade due to the closure of Railway Street, Wickham, as part of changes to the Newcastle rail line, why were these businesses not informed of the closure, which came "as a surprise to all involved", and why has the first act of the Government's Newcastle Urban Renewal been to destroy local small business while at the same time promoting high-rise property development?
The Hon. DUNCAN GAY: I find this question incredible. I do not think there is anyone in this State who was not aware that we were going to close the rail line.
The Hon. Lynda Voltz: Close Railway Street.
The Hon. DUNCAN GAY: It has hardly been a secret; it has been a matter for discussion in—
The Hon. Lynda Voltz: Point of order: The Minister is debating the question. Railway Street is being closed. The Minister is talking about the railway line.
The PRESIDENT: Order! The Minister clearly was not doing that. The Minister has the call.
The Hon. DUNCAN GAY: This is an issue that has been out for discussion in the local community.
The Hon. Lynda Voltz: No it hasn't—not the road closure.
The Hon. DUNCAN GAY: The whole gamut of what is happening with that has been part of that discussion. There has been a fulsome discussion in the Newcastle Herald, on 2HD and on the ABC in the region. I just find it incredible that this member would come into this place and say people are not aware of the closure. But that may well be the case. I will refer it to my colleague and get a detailed answer.
HOUSING
The Hon. MELINDA PAVEY: My question is addressed to the Minister for Fair Trading, representing the Treasurer. Can the Minister update the House on the state of the New South Wales housing sector?
The Hon. MATTHEW MASON-COX: I thank the member for this important question, particularly for the economy of New South Wales. While I know those opposite do not really care about the economy of 13 August 2014 LEGISLATIVE COUNCIL 30425
New South Wales, it is indeed the vehicle that drives this State forward. I have been asking them for some time to bring their budgets down, to bring their money boxes, because we have to start somewhere with these guys. The little things make a difference, even with the way those opposite operate. Let us look at the facts and examine exactly what is happening in New South Wales in the most important industry driving us forward—the housing industry.
CommSec's State of the States report in July 2014 acknowledged the strength of the New South Wales economy on the back of increased building starts in this State. That was corroborated by the Australian Bureau of Statistics report in July 2014 showing that residential construction in New South Wales is at a 10-year high. Over the past 12 months we had 46,035 construction starts. This represents almost a 45 per cent increase over the decade averages under Labor. That means we have 45 per cent more activity in New South Wales driving our economy forward. This makes a major difference to our budget and the New South Wales economic cycle. On my visits to a range of centres and across Sydney that has shown up also in the retail sector. The residential sector multiplier is between 2.5 per cent and 3 per cent, and that finds its way into the retail sector and into the pockets of people around this great State.
Those opposite just do not understand these sorts of fundamental economics. We must ensure that the New South Wales economy continues to move ahead, particularly in the significant growth areas of Western Sydney. Of course, the south-west and north-west growth centres have had a number of major housing developments over the past number of years. This Government puts in much effort to ensure that housing development is supported with appropriate infrastructure. It was pleasing to see in the last budget another $83 million from the Housing Acceleration Fund to ensure that infrastructure particularly in south-western Sydney is developed in a timely manner to ensure the greenfield sites proceed as we have planned. Essentially, that is the difference: This State Government has a vision, a plan and a clear picture of what it wants to achieve. We understand the importance of the housing industry. We understand that the industry must be supported with appropriate infrastructure. I am pleased to be part of a Baird-Stoner Government that is driving this industry forward for the benefit of all New South Wales residents.
CHARLOTTE PASS SKI RESORT
The Hon. ROBERT BORSAK: My question without notice is directed to the Minister for Fair Trading, representing the Minister for the Environment. What issues does the National Parks and Wildlife Service have with the operators of the Charlotte Pass Ski Resort that are delaying and causing tensions with lease negotiations? How long have lease negotiations been underway? Is it a fact, as is claimed by the Charlotte Pass Ski Resort operators, that talks have stalled because they are being treated differently to other resorts? When will these negotiations be finalised?
The Hon. MATTHEW MASON-COX: I thank the member for that question. It has been a while since I have been to Charlotte Pass. In fact, I think I have missed the whole ski season this year. I am aware of some issues.
The Hon. Dr Peter Phelps: Eddie's chalet is still available, isn't it Steve?
The Hon. MATTHEW MASON-COX: I know members opposite may have been to the snow a few times this year. They probably can disclose where they have stayed. The Government Whip probably has indicated that perhaps that option no longer is available to them; no doubt they are saddened about that. I will be happy to take the question on notice and provide the member with a detailed answer as soon as possible.
HOMELESSNESS FUNDING
The Hon. SOPHIE COTSIS: My question without notice is directed to the Minister for Ageing, representing the Minister for Family and Community Services. Last week Homelessness NSW stated that currently the New South Wales Government has $30 million in Commonwealth funds through the National Partnership Agreement on Homelessness. Why has the State Government failed to distribute that $30 million?
The Hon. JOHN AJAKA: I thank the member for her question. I refer her to the answer I gave only a few minutes ago in this House regarding all the great work being undertaken by Gabrielle Upton in relation to homelessness. 30426 LEGISLATIVE COUNCIL 13 August 2014
REGIONAL BRIDGES
The Hon. RICK COLLESS: My question is addressed to the Minister for Roads and Freight. How is the New South Wales Government making it easier for regional councils to replace council-owned bridges?
Mr Jeremy Buckingham: Where was the first bridge in New South Wales replaced?
The Hon. DUNCAN GAY: Hunter Valley.
Mr Jeremy Buckingham: The second one?
The Hon. DUNCAN GAY: The second was Crookwell, because it needed it.
The Hon. Walt Secord: A GIPA request coming your way, Duncan.
The Hon. DUNCAN GAY: Good luck, cobber. I invite the Labor Party and The Greens to come to Crookwell for the opening of the bridge later this month to tell the Crookwell community why it does not deserve a bridge. Earlier this month I was pleased to announce a new innovative program to help fast-track the replacement of old council-owned timber bridges in New South Wales. Country Bridge Solutions is a program to deliver a standard bridge design, making it easier and cheaper for New South Wales councils to replace old and worn structures. This solution helps all regional councils—unlike Labor's program, which meant only the wealthy councils could afford to replace their bridges while local communities that could not were starved of vital upgrades. Some councils struggle with both the design and engineering aspects of replacing an old bridge. It is not an easy task at the best of times. Given tough circumstances, many country communities have had to cut resources and no longer have that engineering expertise.
The Hon. Walt Secord: Tony Abbott cuts.
The Hon. DUNCAN GAY: We have been here for a nanosecond—three years after 16 years of cuts to country New South Wales. The results are starting to show. Those opposite try to pretend, but that is the fact. As I indicated recently, we have a cookie-cutter method to assist councils in designing and building new bridges on their local roads. We call it that so the member opposite can understand. To kickstart the program, Roads and Maritime Services has developed an initial design for a pre-stressed concrete modular bridge system to deliver structures with a maximum span length of 12 metres—dimensions that suit the vast majority of old timber bridges across the State. Under the Country Bridge Solutions initiative, councils can nominate timber bridges they would like replaced as a matter of high priority. People must remember that council-owned roads and bridges are exactly that: they are owned and managed by councils and are not the responsibility of the State or the Commonwealth.
Unlike those sitting opposite, this Government recognises the need to collaborate with councils to build an accurate inventory of the condition of local bridges to help strategically allocate available State and Commonwealth funding. The State Government is delivering record levels of funding to councils across New South Wales. Members would be aware that since April 2011 the New South Wales Government has delivered an historic $1.55 billion in grants to councils to upgrade and repair their roads and bridges. That is a 40 per cent increase on what happened before. We now want to help councils get more bang for their buck by providing smart, cost-effective bridge building solutions. Our funding is a massive 42 per cent increase on Labor's last financial year.
NEWCASTLE COAL TERMINAL
Mr JEREMY BUCKINGHAM: My question without notice is directed to the Minister for Roads and Freight. Will the Minister inform the House whether the Hon. Mike Gallacher ever made representations to him regarding the Hunter ports or Buildev proposal for a coal terminal in Newcastle?
The Hon. DUNCAN GAY: I can say that the Hon. Mike Gallacher has never made representations to me on that project. If members have further questions I suggest that they place them on notice.
WESTCONNEX MOTORWAY
The Hon. DUNCAN GAY: Earlier in question time I was asked about the indexation of tolls on the M4. I am informed that like all other motorways in New South Wales, such as the M7, tolls on WestConnex will be indexed quarterly.
Questions without notice concluded. 13 August 2014 LEGISLATIVE COUNCIL 30427
DISABILITY INCLUSION BILL 2014
Second Reading
Debated resumed from an earlier hour.
The Hon. JOHN AJAKA (Minister for Ageing, Minister for Disability Services, and Minister for the Illawarra) [3.31 p.m.], in reply: Through an amendment to the Ombudsman Act 1974, the Disability Inclusion Bill 2014 introduces the compulsory reporting of serious incidents occurring in supported group accommodation services that are provided or funded by the Government. The oversight of this scheme by the NSW Ombudsman will enable any systemic issues to be identified and addressed and will improve the management of complaints about such incidents. The bill's suspension and termination provisions will ensure that financial assistance is used appropriately and for purposes that are consistent with the objects and principles of the bill. These provisions will allow New South Wales to move efficiently to the National Disability Insurance Scheme [NDIS]. The bill also provides that certain decisions may be reviewed by the NSW Civil and Administrative Tribunal.
This bill would not exist had it not been for the input my staff received from people with disability, their families, carers and service providers, local councils, government departments and agencies and many others. I thank all those people for taking the time and effort to express their views. A number of matters were raised by Opposition and crossbench members. Many of the matters that were raised will be dealt with in the Committee stage. The proposal by the Hon. Mick Veitch to refer the bill for consideration by a committee is opposed by the Government as it has the potential to significantly hamper this State's reform process and to delay its transition to the NDIS thereby causing disadvantage to people with disability and denying them the opportunity to exercise choice and control in their everyday lives.
Clearly the Department of Family and Community Services undertook an extensive consultation process when it developed the bill, which included a series of community consultations on the review of the Disability Services Act that were held across New South Wales in early 2013 and consultation on the Disability Inclusion Bill 2014 exposure draft that was released in December 2013. This process was carefully thought through and targeted people with disability from all walks of life with different support needs. It included people from Aboriginal and Torres Strait Islander communities, people from cultural and linguistically diverse backgrounds and people with an intellectual disability. The report on the outcomes of the consultation and how the feedback from stakeholders influenced the development of the final bill is available on the department's website.
As with every significant reform, people have differing views based on their experiences and roles. These views are entirely valid. However, it is the responsibility of this Government to weigh up these views and their potential impacts and to agree on the fundamental elements to be contained in the bill. This Government has been transparent in its decision-making process throughout the publication of the consultation report. I question whether consideration of the bill by a committee would add any more value to the extensive consultation process that took into account the feedback from a range of stakeholders, most importantly people with a disability. The bill takes into account the potential need for changes to the legislation necessitated by the NDIS, and includes a clause that will require a review to take place every four years to determine whether its objectives and terms remain valid or need amending. The Government will consult widely on any future changes at appropriate times.
As I have indicated, this bill was introduced in May after extensive consultation. Members have had plenty of opportunity to provide feedback on the bill and it is time for the Government to move. In the 10 weeks since this bill was introduced I did not receive any suggestion from those opposite or any other organisation that this bill should be referred to a committee. I became aware of that suggestion on Friday when I received a letter from the advocacy group People with Disabilities [PWD] which also sent copies of its letter to the shadow Minister, the Hon. Barbara Perry. Yesterday was the first time I became aware of the Opposition's intention to move an amendment to refer this bill to a committee—it gave no indication of its intention to do so in the 10 weeks since the introduction of this legislation.
Why are Opposition members wishing to move amendments? Clearly they have read the letter from PWD and followed its suggestion to refer this matter to a committee. If Opposition members were concerned prior to that time they should have raised the matter with me. I know that Opposition members have a bipartisan 30428 LEGISLATIVE COUNCIL 13 August 2014
approach to people with disability and that they always make appropriate suggestions. Let us look at the reasons that PWD wanted this bill referred to a committee. On page 2 of its 10-page letter to me dated 8 August 2014 it states:
Our overarching recommendation would be to refer this bill to inquiry in order to carefully consider the consequences that the withdrawal of State funding for disability will have for people with disability in New South Wales.
The key words in that suggestion are "the withdrawal of State funding for disability". That advocacy group could not be more wrong. It based its suggestion to refer this matter to a committee on the false premise that this Government is withdrawing funding for people with disability. Those opposite well know that funding is being increased. Current government funding is approximately $2.7 billion. By 2018, in accordance with the heads of agreement we signed with the then Federal Labor Government, that funding will increase from $2.7 billion to $3.1 billion. Commonwealth Government funding will be $3.3 billion. Funding will increase from $2.7 billion to $6.4 billion and we will provide almost 50 per cent: $3.1 billion. It is wrong for those with disability to suggest this Government would remove funding.
To refer this bill to a committee would further delay the commencement of the Act and regulation to the middle of next year. This would mean that the new safeguards, including the Ombudsman's ability to oversee incidents and accommodation services, will not be in place to protect those with disability. What will be the ultimate result if this bill does not proceed today? We will still have a 20-year-old Act that is clearly ineffective and that does not provide the additional safeguards and provisions that are contained in this bill. For that reason alone the Government does not believe the bill should be referred to a committee. I will address the other matters that were raised in the Committee stage. I again thank all members for their contributions to debate and commend the bill to the House.
Question—That the amendment of the Hon. Mick Veitch be agreed to—put.
The House divided.
Ayes, 18
Ms Barham Mr Moselmane Mr Whan Mr Buckingham Mr Primrose Mr Wong Ms Cotsis Mr Searle Mr Donnelly Mr Secord Dr Faruqi Mr Shoebridge Tellers, Mr Foley Mr Veitch Ms Fazio Dr Kaye Ms Westwood Ms Voltz
Noes, 21
Mr Ajaka Mr Gay Reverend Nile Mr Blair Mr Green Mrs Pavey Mr Borsak Mr Khan Mr Pearce Mr Brown Mr Lynn Mr Clarke Mr MacDonald Ms Cusack Mrs Maclaren-Jones Tellers, Ms Ficarra Mr Mason-Cox Mr Colless Miss Gardiner Mrs Mitchell Dr Phelps
Pair
Ms Sharpe Mr Gallacher
Question resolved in the negative.
Amendment of the Hon. Mick Veitch negatived.
Question—That this bill be now read a second time—put and resolved in the affirmative.
Motion agreed to.
Bill read a second time. 13 August 2014 LEGISLATIVE COUNCIL 30429
In Committee
Clauses 1 and 2 agreed to.
The Hon. MICK VEITCH [3.51 p.m.], by leave: I move Opposition amendments Nos 1 to 3 on sheet C2014-056F in globo:
No. 1 Page 2, clause 3, line 20. Omit "support, to the extent reasonably practicable,". Insert instead "uphold".
No. 2 Page 3, clause 4, lines 7 and 8. Omit all words on those lines. Insert instead "for their disability and cultural background (including information provided by individuals or organisations providing independent advocacy services for people with disability) and enables them to make informed choices and supports them in making those choices."
No. 3 Page 4, clause 6, lines 17–21. Omit all words on those lines. Insert instead:
6 Minister to ensure regard is had to disability principles
It is the duty of the Minister to ensure that persons exercising functions under this Act, or providing supports or services to persons with disability in connection with the provision of financial assistance under Part 5, have regard to the disability principles in the exercise of those functions or the provision of those supports or services.
The Opposition is moving these amendments, the first of which is particularly relevant, to remove the words "support, to the extent reasonably practicable" and to instead insert the word "uphold". The importance of this comes back to the United Nations Convention on the Rights of Persons with Disabilities. The crux of the matter is that if we remove the words "to the extent reasonably practicable" we are giving governments and organisations an opportunity to opt out. There is no reason why the Government would not want to uphold that convention. The Minister in his speech in reply referred to upholding human rights and to the importance of those rights. He also spoke about the importance of the United Nations Convention on the Rights of Persons with Disabilities.
No-one in this Chamber would oppose a convention that has underpinned legislation at both a national level and a State level for quite some time, but we are talking about upholding that aspirational convention. Surely we can uphold that convention in the objects and principles of an Act of this Parliament. If we do anything else we will be giving governments and organisations an opportunity to opt out and not provide the reasons for so doing. I know that is not the intention of the provision but those words will give governments and organisations an opportunity at some stage in the future to opt out if they cannot uphold the principles of the United Nations convention—a convention of significance for people in this country with a disability.
The second amendment refers to disability, cultural background and the provision of independent advocacy services for people with disability. In my contribution to debate on the second reading I referred to the need for independent advocacy services. This amendment would give heed to that. The third amendment relates to the Minister having regard to the disability principles. Those principles, which are quite significant, will underpin planning and service delivery for many years to come. It is important to have them enshrined in the objects of the bill. I commend those amendments to the Committee.
The Hon. JOHN AJAKA (Minister for Ageing, Minister for Disability Services, and Minister for the Illawarra) [3.55 p.m.]: The Government opposes Opposition amendments Nos 1 to 3. In relation to amendment No. 1, the amendment sought by the Opposition is not required under any circumstances. The wording of the object is consistent with the words of the United Nations Committee on Economic, Social and Cultural Rights, which recognises that sometimes it may not be possible to fully support the convention principles. Clearly the Government is committed to ensuring that, whenever reasonably practicable, the convention principles will be supported. A perfect example relates to large residential centres. If these Opposition amendments are successful it would mean that large residential centres such as Stockton would have to be closed tomorrow. Opposition members are aware that that will never happen. In fact, the current Labor Party candidate for Newcastle is arguing that Stockton should remain open. Imagine the conflict that those opposite would suddenly face? The amendment is not practicable in this situation.
I have indicated on many occasions to advocacy groups that funding is committed to 1 July 2015, in accordance with the three-year contracts provided to those groups. The broader role of advocacy and information services under the National Disability Insurance Scheme [NDIS] remains the subject of detailed design discussions with all State jurisdictions and the Commonwealth. We are looking at a national approach. It is imperative that funding for advocacy groups is maintained to 30 June 2015, and we will enter into continued discussions with advocacy groups and the Commonwealth in that regard. 30430 LEGISLATIVE COUNCIL 13 August 2014
In relation to amendment No. 3, the wording of proposed section 6 places the responsibility to have regard to the disability principles on a much broader group—that is, anyone exercising a function under the Act or providing supports or services to people with disability in connection with funding under the Act. This means that all New South Wales government departments and local councils will need to put in place a disability inclusion action plan that describes how they will implement the bill's principles. Providers will also have to demonstrate in their future funding agreements how they intend to have regard to those principles. Again, the Government opposes the amendments.
Ms JAN BARHAM [3.57 p.m.]: The Greens support the amendments and note that we have an amendment relating to this issue that seeks to delete the words "reasonably practicable". I acknowledge that these three amendments have been moved in globo. As a signatory to the United Nations convention we are legally bound by the principles. With the greatest respect, I do not accept the Government's position. The Minister said that if the word "uphold" was inserted and the words "reasonably practicable" were deleted we would have to take immediate action tomorrow to close the Stockton centre, which I think is stretching the argument. There is a whole debate about what it means to "uphold".
My concern, which I think is shared by Opposition members, is that the use of the words "reasonably practicable" could be used as an argument not to uphold certain provisions. It could come down to finances— when a government makes a decision based on whether funds will be made available to deliver an outcome in association with the Disability Inclusion Bill 2014. The fact that funds might not be available down the track could be regarded as a reasonably practicable reason for that not happening. That would be wrong and it would certainly go against our position as a State and a nation to ensure that we fulfil our obligations under the convention. The advocacy issue is one that many people feel strongly about.
The CHAIR (The Hon. Jennifer Gardiner): Does the member propose to move The Greens amendments Nos 1 and 3, which are in conflict with the Opposition amendments Nos 1 and 3?
Ms JAN BARHAM: Yes, Madam Chair.
The CHAIR (The Hon. Jennifer Gardiner): The amendments can be moved in globo and then put seriatim.
Ms JAN BARHAM [4.00 p.m.], by leave: I move The Greens amendments Nos 1 and 3 on sheet C2014-072A in globo:
No. 1 Page 2, clause 3 (e), line 20. Omit ", to the extent reasonably practicable,".
No. 3. Page 4, clause 6, line 20. Omit "should have regard". Insert instead "must have regard".
The Greens amendment No. 3 strengthens the requirements for people exercising functions under the bill as well as providers of supports and services. It seeks for them to have regard to the principles enshrined in the bill and simply replaces the word "should" with the word "must" to make clear that the rights and other principles in the bill cannot be disregarded under any circumstances. It remains for the disability inclusion action plans and service provision arrangements to specify the details of how those principles will be addressed but the key issue is that they absolutely must be addressed.
The Greens amendment No. 1 takes a simpler approach than does the Opposition amendment, which seeks to insert a requirement to uphold. The Greens amendment simply seeks that we stay with the principle that there is support without putting in place the stronger position that the Opposition has put forward for the United Nations convention to be upheld. This support is already in the Act. The amendment just seeks to eliminate what we unfortunately believe could be used as a future excuse for the provisions defined in the bill not to be implemented.
The Hon. JOHN AJAKA (Minister for Ageing, Minister for Disability Services, and Minister for the Illawarra) [4.03 p.m.]: In relation to The Greens amendment No. 1, I rely on what I said earlier regarding the similar Opposition amendment. In relation to amendment No. 3, the situation is that each matter and person has to be dealt with on its own circumstances. It may not be appropriate to have a "must have regard". The correct wording clearly is "should have regard" so that each circumstance can be looked at on its relevant facts and circumstances and the wishes of people with disabilities. 13 August 2014 LEGISLATIVE COUNCIL 30431
The Hon. MICK VEITCH [4.04 p.m.]: With all due respect to the Minister, I am a little perplexed by his comments regarding the United Nations [UN] convention. Are we not signatories to the UN convention?
The Hon. John Ajaka: Yes, we are.
The Hon. MICK VEITCH: Therefore, is the Government not already upholding the UN convention? I certainly hope it is because the Government has an obligation to do so. The Minister is saying that those words soften the approach, but we are signatories and we have to uphold the UN convention. I would hope the Minister is not in any way acting ultra vires to the convention.
The Hon. John Ajaka: You know that is not the case.
The Hon. MICK VEITCH: That is what you said. It will be on the transcript. It is quite concerning that the Minister is saying we are not obliged to uphold the UN convention. We are signatories to the convention, and people with disabilities and their service providers know that. I would appreciate the Minister explaining to members in more detail which part of the convention to which we are currently signatories will activate his scenario regarding Stockton? We are already signatories. With all due respect, I am concerned that the Minister is perhaps not aware of the UN convention.
The CHAIR (The Hon. Jennifer Gardiner): Order! The Hon. Mick Veitch has moved Opposition amendments Nos 1 and 3 and Ms Jan Barham has moved The Greens amendments Nos 1 and 3, which are in conflict. I propose to put the questions on the Opposition amendments first.
Question—That Opposition amendment No. 1 [C2014-056F] be agreed to—put and resolved in the negative.
Opposition amendment No. 1 [C2014-056F] negatived.
Question—That The Greens amendment No. 1 [C2014-072A] be agreed to—put and resolved in the negative.
The Greens amendment No. 1 [C2012-072A] negatived.
Question—That Opposition amendment No. 2 [C2014-056F] be agreed to—put and resolved in the negative.
Opposition amendment No. 2 [C2014-056F] negatived.
Question—That Opposition amendment No. 3 [C2014-056F] be agreed to—put and resolved in the negative.
Opposition amendment No. 3 [C2014-056F] negatived.
Question—That The Greens amendment No. 3 [C2014-072A] be agreed to—put and resolved in the negative.
The Greens amendment No. 3 [C2014-072A] negatived.
Clause 3 agreed to.
Ms JAN BARHAM [4.07 p.m.]: I move The Greens amendment No. 2 on sheet C2014-072A:
No. 2 Page 2, clause 4. Insert after line 37:
(6) People with disability have the right to have access to independent advocacy support where necessary to ensure adequate participation in making decisions that affect their lives, including decision-making about the services they receive.
This amendment adds to the general principle of the bill: the recognition that people with disabilities have the right to independent advocacy. I am well aware that advocacy is an ongoing issue of concern among the 30432 LEGISLATIVE COUNCIL 13 August 2014
disability sector with respect to the implementation of the National Disability Insurance Scheme [NDIS]. I am also aware that the way in which advocacy services will be supported and funded under the NDIS model is the subject of discussion between the Commonwealth and the States and Territories.
This amendment does not seek to propose to govern how advocacy will be administered and funded; however, it enshrines a principle that people's right to advocacy should be considered by anyone exercising functions under this bill, including the State and all public authorities in the development of their disability inclusion action plans, as well as providers of supports and services. How this right will be respected and implemented will be a matter for those planned service providers in the context of the changes that are happening to service and funding arrangements.
The Minister has stated his commitment to maintaining the importance of continuing independent advocacy and has said that he intends to pursue this in negotiations with the Commonwealth. I welcome that commitment to put forward the importance of outcomes that support people with disabilities and their advocates in discussion on administrative and funding arrangements. I suggest that the inclusion of this right in the general principle of the bill is a logical extension of that commitment. I commend the amendment to the Committee.
The Hon. JOHN AJAKA (Minister for Ageing, Minister for Disability Services, and Minister for the Illawarra) [4.09 p.m.]: The Government opposes The Greens amendment No. 2. I reaffirm what I said earlier in relation to a similar amendment. I also indicate that clause 4 (5) of the bill clearly states:
People with disability have the same rights as other members of the community to make decisions that affect their lives (including decisions involving risk) to the full extent of their capacity to do so and to be supported in making those decisions if they want or require support.
As I indicated earlier, the role of advocacy information services under the National Disability Insurance Scheme [NDIS] remains the subject of detailed design discussions with all jurisdictions and the Commonwealth. It would be inappropriate to be inserting specific provisions in this bill in regard to advocacy.
The Hon. MICK VEITCH [4.10 p.m.]: The Opposition supports The Greens amendment. I highlight that independent advocacy support is not just around information. Advocacy is more than the provision of information. It is important to read the words "independent advocacy support where necessary" in the amendment. The Opposition will support The Greens amendment much in the same vein and for the same reasons as were enunciated earlier as part of this debate.
Question—That The Greens amendment No. 2 [C2014-072A] be agreed to—put and resolved in the negative.
The Greens amendment No. 2 [C2014-072A] negatived.
Clause 4 agreed to.
Clause 5 agreed to.
Clause 6 agreed to.
The Hon. MICK VEITCH [4.12 p.m.], by leave: I move Opposition amendments Nos 4 to 6 on sheet C2014-056F in globo:
No. 4 Page 4, clause 7. Insert after line 31:
advocacy organisation—see section 20.
No. 5 Page 5, clause 7. Insert after line 10:
Minister means the Minister for Disability Inclusion.
No. 6 Page 5, clause 7, line 20. Omit "and 32". Insert instead ", 32 and 33".
The amendments relate to the interpretation and definition parts of the bill. They are straightforward. Certainly the advocacy provisions are quite important. The issue concerning the Minister for Disability Services becoming the "Minister for Disability Inclusion" is more to do with the fact that we are moving into a new phase. As the Minister agreed in his second reading speech, we are moving into a new phase and the role of the Minister for 13 August 2014 LEGISLATIVE COUNCIL 30433
Disability Services will change. This is part of the transitional arrangement. The amendments would bring the title of "Minister for Disability Inclusion" into the modern legislative framework upon which we are working. The Opposition commends the definitions to the Chamber.
The Hon. JOHN AJAKA (Minister for Ageing, Minister for Disability Services, and Minister for the Illawarra) [4.13 p.m.]: The Government opposes Opposition amendment Nos 4, 5 and 6 in relation to advocacy. In relation to amendment No. 4, I reiterate what I said earlier. In relation to Opposition amendment No. 5, with all due respect to members opposite, I am the Minister for Disability Services. To want to change a title because people with disabilities wrote a letter on Friday and sent it to members opposite simply because those people want to see my title changed adds no weight whatsoever to this bill.
As to Opposition amendment No. 6, which is similarly opposed by the Government, in relation to requiring an eligible entity that is receiving funding to provide support and services to ensure that any of their workers who are providing health services comply with the Health Practitioner Regulation National Law, I point out that this is a national law that is in force in each State and Territory. It came into effect on 1 July 2010. This law means that 14 health professions are regulated by nationally consistent legislation under the National Registration and Accreditation Scheme.
Question—That Opposition amendments Nos 4 to 6 [C2014-056F] be agreed to—put and resolved in the negative.
Opposition amendments Nos 4 to 6 [C2014-056F] negatived.
Clause 7 agreed to.
Clauses 8 and 9 agreed to.
The Hon. MICK VEITCH [4.16 p.m.], by leave: I move Opposition amendments Nos 7 to 9 on sheet C2014-056F in globo:
No. 7 Page 6, clause 10. Insert after line 23:
(2) The Minister is responsible for implementation of the State Disability Inclusion Plan.
No. 8 Page 6, clause 10 (2), line 25. Insert "and their advocacy organisations" after "disability".
No. 9 Page 6, clause 10. Insert after line 25:
(3) The State Disability Inclusion Plan must specify how the Minister proposes to have regard to the disability principles in dealing with matters relating to people with disability.
In my speech during the second reading debate I referred to the Disability Inclusion Plan and its implementation. I have a genuine concern around the monitoring and implementation of the State Disability Inclusion Plan. The Minister would have to agree that success of the plan will depend on capacity for review and how the plan will be implemented and have regard to the disability principles in development of the plan. That plan is a significant planning instrument for service delivery in the disability sector. As I said earlier, it will be a contributing part of the momentous change that we will be moving the sector through. I can see no reason why the Minister would oppose the amendments. I suggest to the Minister it is critical for him to have full responsibility and that that is articulated in the bill, particularly for implementation of the State Disability Inclusion Plan. Someone has to have that responsibility. Clearly, it resides with the Minister to ensure that the plan succeeds, which is what we all want.
Opposition amendment No. 9 is intended to enshrine in legislation how the Minister proposes to have regard to disability principles in dealing with matters relating to people with disability. It is self-evident. It is important for it to be clear how the Minister proposes to have regard to those principles not only in the bill and in the State Disability Inclusion Plan but also in relation to how that will feed into everything else that comes through the NDIS. It is significant for the Government, the Minister and the Chamber to accept that we must have regard to the disability principles. The Minister must be the person responsible for implementation of the plan. It will be good to have a plan or for someone to specify how that happens.
The Hon. JOHN AJAKA (Minister for Ageing, Minister for Disability Services, and Minister for the Illawarra) [4.18 p.m.]: The Government opposes Opposition amendments Nos 7, 8 and 9 because they are 30434 LEGISLATIVE COUNCIL 13 August 2014
unnecessary. The Minister for Disability Services is already publicly accountable through the bill for the State Disability Inclusion Plan. The bill requires the Minister to table a copy of the State Disability Inclusion Plan in each House of Parliament in accordance with clause 10 (3) and to table the review plan every four years.
The Minister must also report on the outcome of the review in accordance with clause 11. There is therefore no need to include the provisions of Opposition amendment No. 7 to require the Minister to be responsible for the implementation of the plan. There is also no need for Opposition amendment No. 9, which requires that the State Disability Inclusion Plan express how the Minister proposes to have regard to the disability principles. Proposed section 6 already requires all persons who exercise a function under the Act to have regard to the disability principles.
Ms JAN BARHAM [4.19 p.m.]: The Greens support the amendments proposed by the Opposition and agree that such an important area of implementation requires responsibility. The clauses to which the Minister referred requiring tabling of a copy of the plan do not go to the main thrust of the bill and the expectation of people with a disability, their loved ones, carers and families that there will be accountability. I believe that is what the Opposition is proposing. The Greens support a clear line of accountability. The idea of having all government departments developing plans, plans that could provide for whatever might be the wish of those departments, and implementing those plans with responsibility resting with the Minister makes the bill a little meaningless in that regard. The Opposition's proposal for the clear line of responsibility to be with the Minister is supported by The Greens.
The Greens also support Opposition amendment No. 9, which would specify how the Minister proposes to have regard to the principles. If amendment No. 3 had been successful it would have spelt out how that would be detailed, but that amendment was not supported. Opposition amendment No. 9 seeks to require that this bill identifies and specifies how the Minister proposes to have regard to the disability principles. That is an important matter. I am normally a very optimistic, positive and trusting person but unfortunately—whether it is because we are getting towards the end of a term of Parliament, or whether it is the unfortunate nature of some reforms that are being rolled out by the Government—those supposed reforms are not delivering the outcomes expected by the community.
I do not say that about this Minister, but about the Government as a whole. What we need is clear accountability. I believe this Minister has all the right motives to deliver in this area; I believe most in this Chamber feel the same way. But we are not dealing with just the here and now. We have legislation that is 30 years old, and we want to know whether in 30 years time the principles that are put down in this place today are good principles that require a very clear line of accountability and responsibility. I think that is what is proposed by these amendments, and that is what The Greens support.
Question—That Opposition amendments Nos 7 to 9 [C2014-056F] be agreed to—put and resolved in the negative.
Opposition amendments Nos 7 to 9 [C2014-056F] negatived.
Clause 10 agreed to.
Clause 11 agreed to.
The Hon. MICK VEITCH [4.23 p.m.], by leave: I move Opposition amendments Nos 10 to 14 on sheet C2014-056F in globo:
No. 10 Page 7, clause 12 (2) (a), line 9. Insert "and their advocacy organisations" after "disability".
No. 11 Page 7, clause 12. Insert after line 10:
(b) must undertake a period of public consultation about the proposed plan, and
No. 12 Page 7, clause 12, lines 16–21. Omit all words on those lines. Insert instead:
(b) include strategies to support the participation of people with disability, including strategies about the following:
(i) providing access to buildings, events and facilities,
(ii) providing access to information,
13 August 2014 LEGISLATIVE COUNCIL 30435
(iii) reducing barriers that prevent people with disability from accessing facilities, goods and services,
(iv) reducing barriers that prevent people with disability from obtaining and maintaining employment,
No. 13 Page 7, clause 12 (3) (c), line 26. Insert "and their advocacy organisations" after "disability".
No. 14 Page 7, clause 12. Insert after line 36:
(6) The Minister is responsible for ensuring that disability inclusion action plans are consistent with the State Disability Inclusion Plan.
I propose to speak to all these amendments, rather than to each one individually. These amendments seek to address two significant concerns of the Opposition. One is that people will fall through the gaps. We do not want that to occur. I draw the Minister's attention to the Federal Joint Standing Committee on the National Disability Insurance Scheme report on the implementation of the National Disability Insurance Scheme, and in particular recommendation 2, which is:
The committee heard evidence that "gaps in service" have been identified in each of the trial sites. The committee recommends that further work be undertaken by the Independent Advisory Council which is well-placed to identify and inform the Agency about where there are gaps in service and possible options for addressing these shortfalls.
Recommendation 6 of the same report is:
The committee notes the importance of the role of advocacy services in ensuring quality plans and supporting participants in the planning process. The committee recommends that certainty regarding the role and support for advocacy services in the NDIS be urgently resolved through the Ministerial Disability Reform Council.
Those two recommendations of that joint Federal committee make it clear that the committee has some concerns. It behoves this Parliament to acknowledge those concerns. The amendments that the Opposition have moved in globo seek to address some of those issues. The disability inclusion action plans—which clause 12 in division 3 refers to—have a significant role. Phraseology and terminology in this sector are very important, and when we as legislators change phrases and terminology in legislation regarding a sector such as the disability sector it is critical that everyone is clear on the definition of the phrase or terminology. As an example, back in the mid-1990s the phrase "not-for-profit organisation" was used extensively to describe the community-based sector.
It is now called the non-government sector—which means that for-profit organisations can actually work in the area and draw government funding. So the "not-for-profit organisation" terminology was changed to "non-government organisations". The sector was not advised way back then about the subtleties and differences, but it was fully aware of its significance when the first round of tenders went out—because it was no longer eligible. That was a quite significant change and it was shattering for the sector, and particularly for many community-based organisations in country areas.
It is essential that any disability inclusion action plan has an extensive period of public consultation about the proposed plan. The Minister spoke in his second reading speech and in his speech in reply about the amount of consultation that has taken place on this bill. That highlights that in this sector informed decision-making is critical. People need to have information, but they need time to digest that information, and they need time to understand any new phrases or any new terminology. This is a sector that requires that because of the very nature of the people we are talking out. Our amendments seek to allow a period of public consultation about any proposed plan. We are looking at rewording some sections, particularly regarding reducing barriers that prevent people with a disability from obtaining and maintaining employment, and reducing barriers that prevent people with a disability from accessing facilities, goods and services. Again, this is about phraseology and terminology; if we do not as legislators provide this information to the sector and to people with disabilities then they will already be behind. The power in the game here will be the information around what that means, and they will be behind.
The last of the in globo amendments provides that the Minister is responsible for ensuring the disability inclusion action plans are consistent with the State Disability Inclusion Plan. I think it is absolute common sense that any lower level or any other disability inclusion action plan is consistent with the State plan. I think that is glaringly obvious, and that should be articulated in the bill so that it is glaringly obvious for everyone else. If the Minister cannot find it in himself to accept any of our other proposed technical amendments or changes to his bill, I implore him to give consideration to this one. 30436 LEGISLATIVE COUNCIL 13 August 2014
The Hon. JOHN AJAKA (Minister for Ageing, Minister for Disability Services, and Minister for the Illawarra) [4.29 p.m.]: The Government opposes Opposition amendments Nos 10 to 14 inclusive. I reiterate my comments regarding advocacy. In addition, the Commonwealth, States and Territories have recognised that a nationally consistent approach to quality assurance and safeguards in the National Disability Insurance Scheme [NDIS] is required, first, to advance the rights of participants to dignity and respect, and provide protections against abuse, neglect and exploitation; and, secondly, to support the aims of choice and control in the NDIS both as a means of empowering individuals and to drive quality improvement.
A nationally consistent quality and safeguards framework would mean that people interacting with the NDIS can expect the same standards and safeguards wherever they are in Australia whenever they move from State to State. It is important to get the NDIS design right. With this in mind, the New South Wales Government is working closely with the Commonwealth Government regarding agreement on key aspects of the national position. Of course, further details regarding any consultation opportunities about this national direction will be communicated to key stakeholders, including advocacy and information services.
Amendment No. 11 is completely unnecessary as the bill already requires the disability inclusion action plans to be developed in consultation with people with disability—I refer to clause 12 (2). Amendment No. 12 is merely a rewording of the requirements and does not add anything to the requirements currently set out in clause 12 (3) (b). Amendment No. 14 is also unnecessary. The bill requires the Department of Family and Community Services to have a State Disability Inclusion Plan that provides for collaboration and coordination among government departments, local councils and other entities in providing support and services—I refer to clause 10 (1) (b). The bill requires public authorities to report on the plans in their annual reports. Further, the Minister for Disability Services is required to provide a whole-of-government report on the implementation of disability inclusion action plans to Parliament annually—I refer to clause 13.
Ms JAN BARHAM [4.32 p.m.]: The Greens support the amendments. We acknowledge the sense of the Government clarifying these matters, but with a multitude of plans the possibility exists for inconsistencies. That might sound a bit Monty Pythonesque, but without clear guidelines we have seen inconsistencies. We are waiting for much of the detail to be described in guidelines, templates or some sort of model framework. This is not the first time governments have been required to plan for disability services. Despite many submissions to the Department of Planning, we certainly have not seen anything to ensure that planning prescribes these access and inclusion principles.
I support the rewording of clause 12 (b). It frames the responsibilities far more positively so that people with a disability are more comfortable, and it reduces barriers that prevent people with a disability from obtaining and maintaining employment. Part of the whole strategy for delivering a national disability plan and the commitment to the convention is acknowledging the barriers regarding consultation and engagement and people's ability to have a meaningful role. Major parties of all persuasions do lousy consultation, and I say that with no disrespect. I have yet to see a good consultation process because no-one seems to have the commitment to deliver a document, legislation or guideline that clearly defines consultation.
Consultation is a process that means that people must know when it is happening and be able to engage with it. Information that people are asked to comment on should be explained to them so that they understand. Legalistic documents cannot be just handed out without a full explanation of their jargon or hiding detail behind warm, fuzzy language that has no strength, meaning or funding to support it. This group of amendments seeks to clearly define the need for consistency and a strategic program. When we receive the guidelines or the model program I hope we see multiple plans presented to the people of New South Wales with the overarching State Disability Inclusion Plan and each department sitting beneath in a coordinated approach so that it truly is a whole-of-government commitment—otherwise, it will be meaningless.
The process of engaging or seeking consultation becomes meaningless because people then have to attend multiple viewings, consultations or events, or read documents. The Government has a responsibility to present a coordinated approach. A reasonable consultation period needs to be defined. One recent Friday I learned that submissions on an issue were due on the Monday. The matter had not been advertised properly, yet I was told that it had been on exhibition for two weeks and thousands of pages had to be read. People lose faith in democracy and in the parliaments that supposedly represent them when they are not fully engaged or if there is a tick-a-box approach. All the Opposition is trying to do with these amendments is ensure a clear process so that people know it is a meaningful engagement with the community, there is consistency and the Minister is the one responsible, which is how it is meant to be. The Greens fully support the amendments. 13 August 2014 LEGISLATIVE COUNCIL 30437
Question—That Opposition amendments Nos 10 to 14 [C2014-056F] be agreed to—put and resolved in the negative.
Opposition amendments Nos 10 to 14 [C2014-056F] negatived.
Clause 12 agreed to.
Clauses 13 to 16 agreed to.
The Hon. MICK VEITCH [4.38 p.m.], by leave: I move Opposition amendments Nos 15 to 17 on sheet C2014-056F in globo:
No. 15 Page 9, clause 17. Insert after line 29:
(b) to advise the public about the Government's disability policies,
No. 16 Page 9, clause 17. Insert after line 42:
(2) Also, the Disability Council may, by written notice given to a public authority, require the public authority:
(a) to amend its disability inclusion action plan in the way specified in the notice, or
(b) to implement its disability inclusion action plan.
(3) A public authority must comply with a notice given under subsection (2).
No. 17 Page 10, clause 19. Insert after line 13:
(4) The Disability Council must ensure the report is available to the public.
These amendments deal with the functions of the Disability Council of NSW and, again, strengthen the wording of the bill. The amendments do not in any way erode the bill. They will provide public information about the Government's disability policies. The amendments provide public information about the Government's disability policies and they ensure that the Disability Council has some responsibility with regard to public authorities and their disability inclusion action plans. In effect, the amendments strengthen the current wording. I commend the amendments to the Committee.
The Hon. JOHN AJAKA (Minister for Ageing, Minister for Disability Services, and Minister for the Illawarra) [4.39 p.m.]: The Government opposes Opposition amendments Nos 15 to 17. Amendment No. 15 aims to place an additional responsibility on the Disability Council—that is, to advise the public about the Government's disability policies. This is clearly a government responsibility and should remain so. The Disability Council's responsibility is to advise the Minister. Amendment No. 16 will provide the Disability Council with the power to require a public authority to amend its disability inclusion action plan in a certain way. The bill gives the Disability Council the ability to influence disability inclusion action plans. I maintain that the amendment proposes a highly inappropriate power for such a body to hold. The elected government of the day is the appropriate body to direct its public authorities. Amendment No. 17 requires the report of the Disability Council to be made available to the public. Under clause 19 of the bill, the Disability Council must report to the Minister, which is appropriate.
Ms JAN BARHAM [4.40 p.m.]: The Greens do not support Opposition amendments Nos 15 to 17 for reasons similar to those expressed by the Minister. The bill defines the important role of the Disability Council to advise the Minister and to provide regular reports about the writing and implementation of disability inclusion plans, but does not require public authorities to amend them. As an advisory body it has the power to make recommendations when reporting to the Minister. The Minister may seek reports that are confidential in nature and that may restrict his or her right to seek the important advice if there was a requirement for the report to be made public. That amendment could work against the interests of people with disability if matters of a confidential nature were to be made public. As I said, The Greens do not support the Opposition amendments.
Question—That Opposition amendments Nos 15 to 17 [C2014-056F] be agreed to—put and resolved in the negative.
Opposition amendments Nos 15 to 17 [C2014-056F] negatived. 30438 LEGISLATIVE COUNCIL 13 August 2014
Clause 17 agreed to.
Clause 18 agreed to.
Clause 19 agreed to.
The Hon. MICK VEITCH [4.43 p.m.]: I move Opposition amendment No. 18 on sheet C2014-056F:
No. 18 Page 10. Insert after line 13:
Part 4 Advocacy organisations
20 Advocacy organisations
In this Act:
advocacy organisation means:
(a) representative organisation, or
(b) a disability advocacy organisation.
disability advocacy organisation means an organisation providing (on a not-for profit basis) independent advocacy, advice and information services for, or with respect to, people with disability to the Government, public, persons with disability and others for the purpose of enabling people with disability to access opportunities for inclusion, resolve issues early, identify barriers and find independent assistance when needed.
representative organisation means an organisation representing people with disability governed by a majority of people with disability and may include a disability advocacy organisation.
21 Functions
For the purposes of this Act, advocacy organisations may exercise the following functions:
(a) monitor the implementation of Government policy in relation to people with disability and their families,
(b) advise the public about the Government's disability policies,
(c) advise the Minister on emerging issues relating to people with disability,
(d) advise public authorities about the content and implementation of disability inclusion action plans,
(e) advise the Minister about the content and implementation of the State Disability Inclusion Plan and disability inclusion action plans,
(f) promote the inclusion of people with disability in the community,
(g) promote community awareness of matters concerning the interests of people with disability and their families,
(h) consult with people with disability and undertake research about matters relating to people with disability,
(i) any other functions prescribed by the regulations.
22 Reporting requirements
(1) An advocacy organisation must, if required by the Minister, give the Minister a report about the exercise of its functions under this Act when receiving financial assistance under this Act.
(2) The report must include information about the matters directed by the Minister.
(3) The report may contain other information or advice the advocacy organisation considers appropriate.
This amendment inserts part 4, which relates to organisations, after line 13. During the second reading debate I spoke at length about the importance of advocacy organisations. This amendment highlights the reason the Opposition is concerned about supporting advocacy organisations within the legislation. It acknowledges the important role that advocacy organisations play in the disability field in New South Wales and Australia. It is 13 August 2014 LEGISLATIVE COUNCIL 30439
important people know that advocacy is more than information services and that more support is available than just systemic advocacy. There is a strong need for independent advocacy. Individuals entering the new world of the NDIS need to be aware that they have access to independent quality advocacy services in this State.
This amendment seeks to ensure that if there are advocacy organisations they are required to report their activities. This amendment represents the quality assurance model that I spoke about in my speech on the second reading. It is critical that advocacy services are available. I am extremely concerned that in this new environment people will fall through the gaps. They will reach out to try to find an organisation to advocate on their behalf and it is critical that that organisation is a quality, professional, independent service. This amendment ensures that the bill provides for an advocacy service.
The Hon. JOHN AJAKA (Minister for Ageing, Minister for Disability Services, and Minister for the Illawarra) [4.45 p.m.]: The Government does not support Opposition amendment No. 18. I reiterate what I said earlier in relation to other amendments regarding advocacy, but I add that in 2013-14 this Government funded 44 organisations to deliver advocacy and information services to a value of approximately $9.7 million. As with other services that are funded by Ageing, Disability and Home Care, advocacy services that are engaged are subject to three-year funding agreements until 30 June 2015. The bill enables these advocacy services to continue to be funded. As appropriate, the funding of all services from 1 July 2015 will be considered in the context of alignment with the bill and future planning of the National Disability Insurance Scheme. The Government will advise all service providers of funding agreement arrangements that will be in place post-30 June 2015 as soon as these arrangements with the Commonwealth Government are finalised.
Ms JAN BARHAM [4.46 p.m.]: The Greens support Opposition amendment No. 18. It understands the Opposition's reason for moving it. Advocacy plays an important role, which was identified when The Greens moved its amendment to have advocacy identified in the principles of the bill. We will see great change. Many people in the community rely on their knowledge and history of working with a system. People need the most support when systems change, which is why it is necessary to define advocacy organisations that can assist people in need. This amendment explains the purpose of advocacy organisations. Their functions are crucial to the success of the National Disability Insurance Scheme and the incredible change that will occur. The amendment enriches and enhances the roles of advocates to ensure the success of the bill and the outcomes for people with disability.
The amendment lists the reporting requirements of advocacy organisations under new section 22, which requires that an advocacy organisation must, if required by the Minister, report about the exercise of its functions when receiving financial assistance. This is another important level of accountability. This is a difficult time and we are losing advocacy services. Recently changes were made to the residential communities legislation. That process has resulted in a massive upheaval and change for our most vulnerable such as the elderly and people from low socioeconomic backgrounds. Not only are those people trying to come to terms with the new legislation but they have also lost an important advocacy service because the Government thought it was necessary to stop its funding.
Doubt and scepticism about the successful application of legislation often depends on a government's willingness to support advocacy. I thank the Opposition for raising these important matters. It has been said that some of these matters are being dealt with too early; negotiations are still proceeding with the Commonwealth Government and there is opportunity for further legislation. As we are ahead of the pack with this legislation we should be able to iron out any issues that may arise or, if necessary, introduce new or amending legislation. It would be terrible to lose this time in which we can deliver real support for people with disability because things have been rushed. We are not talking about general advocacy; we are talking about people who need additional support. Advocacy is one of the most important things in a time of change. The Greens support the amendment.
Question—That Opposition amendment No. 18 [C2014-056F] be agreed to—put.
The Committee divided.
Ayes, 18
Ms Barham Mr Moselmane Mr Whan Mr Buckingham Mr Primrose Mr Wong Ms Cotsis Mr Searle Mr Donnelly Mr Secord Dr Faruqi Mr Shoebridge Tellers, Mr Foley Mr Veitch Ms Fazio Dr Kaye Ms Westwood Ms Voltz 30440 LEGISLATIVE COUNCIL 13 August 2014
Noes, 21
Mr Ajaka Mr Green Reverend Nile Mr Blair Mr Harwin Mrs Pavey Mr Borsak Mr Khan Mr Pearce Mr Brown Mr Lynn Mr Clarke Mr MacDonald Ms Cusack Mrs Maclaren-Jones Tellers, Ms Ficarra Mr Mason-Cox Mr Colless Mr Gay Mrs Mitchell Dr Phelps
Pair
Ms Sharpe Mr Gallacher
Question resolved in the negative.
Opposition amendment No. 18 [C2014-056F] negatived.
Clauses 20 and 21 agreed to.
The Hon. MICK VEITCH [5.00 p.m.], by leave: I move Opposition amendments Nos 19 to 21 on sheet C2014-056F in globo:
No. 19 Page 11, clause 22, lines 27–29. Omit all words on those lines. Insert instead:
(b) in-home support is provided, in relation to the shared living arrangement, by a disability service provider or an organisation that is responsible for supporting people with disability.
No. 20 Page 11, clause 22, lines 30 and 31. Omit all words on those lines. Insert instead:
(2) Supported group accommodation includes an assisted boarding house within the meaning of the Boarding Houses Act 2012 and premises, or a type of premises, prescribed by the regulations to be supported group accommodation.
No. 21 Page 11, clause 22, lines 32–41. Omit all words on those lines. Insert instead:
(3) However, supported group accommodation does not include premises, or a type of premises, prescribed by the regulations not to be supported group accommodation.
These amendments relate not only to the important issue of boarding houses but also to in-home supports, when they are provided. They seek to make sure that there is a degree of quality and some assurance around disability service providers and in-home supports. Certainly supported group home accommodation should include assisted boarding houses within the meaning of the Boarding Houses Act 2012. We are also of the view that supported accommodation should include premises or the types of premises that are prescribed by the regulations as supported group accommodation. These amendments are important for a number of reasons. I note that The Greens have similar amendments, and no doubt Ms Jan Barham will refer to those amendments. I commend the amendments to the Committee.
The Hon. JOHN AJAKA (Minister for Ageing, Minister for Disability Services, and Minister for the Illawarra) [5.01 p.m.]: The Government opposes Opposition amendments Nos 19 to 21. I respectfully submit that these amendments are not necessary because the Boarding Houses Act 2012 and the Boarding Houses Regulation 2013 already regulate this type of accommodation. These laws set out comprehensive standards with which assisted boarding houses must comply. Therefore, it would be clearly inappropriate and contrary to the intent of the bill now to attempt to regulate this accommodation. It is already regulated under another statutory regime for which the Minister for Disability Services has carriage.
Ms JAN BARHAM [5.02 p.m.]: The Greens support the amendments moved by the Opposition and note that they are the same as amendments that The Greens are proposing, so they must be good.
The Hon. Mick Veitch: It is compelling.
Ms JAN BARHAM: Yes, it is a compelling argument—we both had the same thoughts. That might be because we both received information from the NSW Ombudsman. On 11 February 2014 the Ombudsman made 13 August 2014 LEGISLATIVE COUNCIL 30441
a strong case in his submission on the bill which is why both The Greens and the Opposition are of the same view. The amendments modify the bill's definition of "supported group accommodation" to include rather than exclude assisted boarding houses. These amendments are consistent with the strong arguments made by the Ombudsman in his submission on the draft bill. He stated the case emphatically. I believe his submission should be read in full for the benefit of all members, and perhaps for future reference. I quote the Ombudsman who said:
The information booklet accompanying the draft Bill indicates that the NSW Government has decided to limit the reporting scheme to supported accommodation and centre-based respite services because 'people in these services are likely to be some of our most vulnerable people', and the Boarding Houses Act has a new reporting scheme for incidents in assisted boarding houses.
We agree that people in supported accommodation services include those who are highly vulnerable. However, our office has consistently reported on serious incidents, and other significant risk factors, relating to people with disability residing in assisted boarding houses. The evidence demonstrates that people with disability in assisted boarding houses are some of the State's most vulnerable people (especially as they often do not have some of the 'natural safeguards' available to others: such as family and independent advocates).
While we acknowledge that the Boarding Houses Act requires certain incidents to be reported to the Director-General of the Department of Family and Community Services, this does not provide the same legislative safeguards that will be available under the proposed Part 3B scheme.
Finally, we note that the exclusion of assisted boarding houses from the scheme would be inconsistent with our oversight of assisted boarding houses under the Community Services (Complaints, Reviews and Monitoring) Act 1993.
It is worth noting that some moves were made to try to have a meeting with the Ombudsman. Opposition members and I were keen to meet with the Ombudsman to see whether he believed this bill had taken into account the strong points that were made in his submission in February. We were not able to meet with him and it was not possible to set up a meeting because the bill is being debated and we were told that it was not appropriate, which is surprising. It is disappointing that the Ombudsman has not had an opportunity to do that. It is a disappointing as we sought the Minister's support for a joint meeting so we could all sit down with the Ombudsman and obtain some clarity.
I read part of the Ombudsman's submission onto the record as it is important for everyone to be made aware of his comments. Over the past decade the Ombudsman has repeatedly delivered some of the most important reports concerning people with disability in accommodation and boarding houses. I commend the Government for taking steps, under the previous Minister, to change the Boarding Houses Act to address some of the points previously raised by the Ombudsman. On that basis, I think we have a clear indication that the Ombudsman does not consider the proposed exclusion of assisted boarding houses appropriate.
The Minister said that the Boarding Houses Act and regulations define those protections. But the message is clear: Those protections are not adequate when it comes to protecting vulnerable people with disability. So The Greens strongly support these amendments and hope that they are successful. If they are not at least we have it on record that we sought to comply with the advice of the Ombudsman. I hope that there are no further deaths or disasters involving vulnerable people with disabilities living in dangerous and vulnerable situations in boarding houses.
Question—That Opposition amendments Nos 19 to 21 [C2014-056F] be agreed to—put.
Division called for and Standing Order 114 (4) applied.
The Committee divided.
Ayes, 18
Ms Barham Mr Moselmane Mr Whan Mr Buckingham Mr Primrose Mr Wong Ms Cotsis Mr Searle Mr Donnelly Mr Secord Dr Faruqi Mr Shoebridge Tellers, Mr Foley Mr Veitch Ms Fazio Dr Kaye Ms Westwood Ms Voltz 30442 LEGISLATIVE COUNCIL 13 August 2014
Noes, 21
Mr Ajaka Mr Green Reverend Nile Mr Blair Mr Harwin Mrs Pavey Mr Borsak Mr Khan Mr Pearce Mr Brown Mr Lynn Mr Clarke Mr MacDonald Ms Cusack Mrs Maclaren-Jones Tellers, Ms Ficarra Mr Mason-Cox Mr Colless Mr Gay Mrs Mitchell Dr Phelps
Pair
Ms Sharpe Mr Gallacher
Question resolved in the negative.
Opposition amendments Nos 19 to 21 [C2014-056F] negatived.
Clause 22 agreed to.
Clauses 23 to 26 agreed to.
The Hon. MICK VEITCH [5.12 p.m.], by leave: I move Opposition amendments Nos 22 to 31 on sheet C2014-056F in globo:
No. 22 Page 14, clause 27, line 9. Omit "individual." Insert instead:
individual specifying:
(a) the reason for the decision, and
(b) that the person may apply for a review of the decision and how to apply for the review.
No. 23 Page 16, clause 32. Insert after line 12:
(c) the eligible entity conducts an assessment of the person's suitability to be involved in the provision of supports and services (having regard to any policies or procedures published by the Minister) and considers any relevant information about the person included on the record of investigations kept by the Ombudsman under section 25W of the Ombudsman Act 1974, and
No. 24 Page 16, clause 32, line 17. Omit "4 years". Insert instead "3 years".
No. 25 Page 17, clause 33, line 39. Omit "reasonably believes". Insert instead "has evidence to show that".
No. 26 Page 17. Insert after line 34:
33 Conditions about registration of service providers
It is a condition of the provision of financial assistance to an eligible entity that the eligible entity must not:
(a) engage a person as a relevant worker to provide support and services in his or her capacity as a health service provider (within the meaning of the Health Practitioner Regulation National Law (NSW)) unless the person is a registered health practitioner (within the meaning of that Law), or
(b) continue to engage such a person after such registration is cancelled because the person is disqualified under that Law or the law of a co-regulatory jurisdiction from being registered in that health profession.
No. 27 Page 18, clause 34, line 18. Omit "reasonably believes". Insert instead "has evidence to show that".
No. 28 Page 19, clause 35, line 6. Omit "section 26". Insert instead "section 26 not to provide financial assistance to or on behalf of an individual who is a person in the target group or".
13 August 2014 LEGISLATIVE COUNCIL 30443
No. 29 Page 19, clause 36. Insert after line 21:
(b) the Secretary conducts an assessment of the person's suitability to be involved in the provision of supports and services (having regard to any policies or procedures published by the Minister) and considers any relevant information about the person included on the record of investigations kept by the Ombudsman under section 25W of the Ombudsman Act 1974, and
No. 30 Page 20, clause 37, line 18. Omit "another entity". Insert instead "another entity (including an advocacy organisation)".
No. 31 Page 22, clause 47, lines 31–37. Omit all words on those lines.
These amendments go to a range of matters such as the conduct of an assessment of a person's suitability to be involved in the provision of supports and services and including provisions about the registration of service providers. As a former chief executive officer of a service provider, I think there is a degree of work to be done on corporate governance in the New South Wales not-for-profit sector. Some organisations are outstanding and have taken corporate governance to great levels while others still require an amount of assistance and empowerment to do so. Amendment No. 29 seeks to have the secretary conduct an assessment of a person's ability to be involved in the provision of supports and services.
As I said before, these provisions go a long way towards strengthening the bill. They are not about weakening the bill but about providing some enhancements so the disability sector has a great degree of knowledge about the direction we are seeking to take the sector—particularly beyond this bill and into whatever comes next. I am concerned about the definition of health practitioners. Although the Minister spoke in his speech in reply about health practitioners and the definitions and requirements in the Act, I think they need some strengthening, which is the aim of these amendments. I commend the amendments to the Committee.
The Hon. JOHN AJAKA (Minister for Ageing, Minister for Disability Services, and Minister for the Illawarra) [5.14 p.m.]: The Government opposes Opposition amendments Nos 22 to 31. The Government maintains that the bill has found the right balance and that the Opposition amendments are either unnecessary or go a little too far. The Government maintains there is an appropriate balance in the bill.
Question—That Opposition amendments Nos 22 to 31 [C2014-056F] be agreed to—put and resolved in the negative.
Opposition amendments Nos 22 to 31 [C2014-056F] negatived.
Clause 27 agreed to.
Clauses 28 to 31 agreed to.
The Hon. JOHN AJAKA (Minister for Ageing, Minister for Disability Services, and Minister for the Illawarra) [5.16 p.m.], by leave: I move Government amendments Nos 1 to 4 on sheet C2014-068E in globo:
No. 1 Page 16, proposed section 32 (7), line 30. Omit "subsection (5) (a)". Insert instead "subsections (5) (a) and (6) (a)".
No. 2 Page 16, proposed section 32 (7), line 31. Insert "or relevant board member" after "worker".
No. 3 Page 16, proposed section 32 (7) (a) (ii), lines 37–42. Omit all words on those lines. Insert instead:
(ii) if the person has been convicted of a prescribed criminal offence (other than a prescribed sexual offence)—the person's criminal record check shows that the person has not been convicted of any further prescribed criminal offence within the 10-year period immediately before the criminal record check was conducted or obtained and the person has not served any period of imprisonment during that period for a prescribed criminal offence,
No. 4 Page 19, proposed section 36. Insert after line 30:
(5) Despite subsection (4) (a), the Secretary may engage or continue to engage a person as a relevant worker if the engagement or continued engagement is in accordance with:
(a) all of the following:
(i) the Secretary is satisfied, having regard to the person's criminal record check, that the person has not been convicted of a prescribed sexual offence as defined in the Criminal Procedure Act 1986,
30444 LEGISLATIVE COUNCIL 13 August 2014
(ii) if the person has been convicted of a prescribed criminal offence (other than a prescribed sexual offence)—the person's criminal record check shows that the person has not been convicted of any further prescribed criminal offence within the 10-year period immediately before the criminal record check was conducted or obtained and the person has not served any period of imprisonment during that period for a prescribed criminal offence,
(iii) the Secretary is satisfied that the person is a suitable person to be involved in the provision of supports and services to persons in the target group, and
(b) any circumstances prescribed by the regulations.
The main purpose of these amendments is to clarify the intention of the employment screening provisions in proposed sections 32 and 36 and the discretion that an organisation or the Department of Family and Community Services has when considering whether to engage a person to work with people with disabilities or to continue to engage the person if he or she is an existing employee. These amendments will deliver on the Government's commitment that appropriate checks are made on people providing supports and services to people with disabilities.
Amendments Nos 1 and 2 fix an oversight in the bill in that a relevant board member was not included in proposed section 32 (7). The proposed section will give an organisation that is receiving funding to provide supports and services to people with disabilities some discretion about engaging or continuing to engage a person who works directly with people with disabilities if certain conditions are met. The amendments extend this discretion to board members who work directly with people with disabilities and ensure that all people working with people with disabilities, regardless of their status, will be treated equally in regard to this screening.
Amendment No. 3 clarifies the intention of proposed section 32 (7) (a) (ii). It provides that an eligible entity may engage or continue to engage a person who has been convicted of a prescribed criminal offence other than a prescribed sexual offence as long as that person has not committed any further prescribed criminal offence within the 10-year period prior to when the check was conducted or obtained and that he or she has not served any imprisonment during that 10 years for a prescribed criminal offence. The intention is that if a person has committed offences in his or her youth but is now a reformed character that person should be eligible to be considered for employment or to remain in employment. This amendment corrects the current drafting in the bill that suggests that a person convicted of two or more prescribed criminal offences within any 10-year period would not be eligible to be considered for employment or to remain in employment.
Amendment No. 4 includes an equivalent discretionary clause in proposed section 36 to that contained in proposed section 32 (7). This means the discretionary clause applies in relation to Department of Family and Community Services workers who work directly with people with disabilities. It is an oversight that this discretion was not included in the bill. I commend the amendments to the Committee.
The Hon. MICK VEITCH [5.19 p.m.]: Well, well, well. Approximately two hours ago during this debate, the Minister had the temerity to have a go at me for tabling a number of amendments to a bill that had been lying on the table for nine or 10 weeks; yet right at the death-knell when we are about to conclude the Committee stage and proceed to the third reading, what does the Government do? The Government has moved amendments to its own bill. It is fortunate that the bill has been lying on the table for nine weeks; otherwise, it would have been passed in the last week of the year's last session, and the Minister then would have had to introduce an amending bill to fix it.
I must say that the attack by the Government on the Opposition for moving its amendments now rings a little hollow in light of the fact that the Government has moved its own amendments. The Minister referred to the Government's amendments as an "oversight". Is it not fortunate that the bill remained on the table for a little longer than otherwise would have been the case? The Government's action supports the Opposition's contention that this bill should be referred to a committee of the Parliament in case there are other "oversights". The Opposition will support the amendments.
The Hon. PAUL GREEN [5.20 p.m.]: As indicated in our contribution to debate on the second reading, the Christian Democratic Party virtually has said that the Government was good to listen to stakeholders and to amend the bill. I think it shows that the Government is listening.
The Hon. Mick Veitch: But we are not allowed to do that. The Government can, but the Opposition cannot. Who could we bag? 13 August 2014 LEGISLATIVE COUNCIL 30445
The Hon. PAUL GREEN: If it took the Government nine weeks to do it, so be it; at least it is doing it, and that is a way forward to ensuring that this bill will only get better. The Christian Democratic Party supports the amendments.
Question—That Government amendments Nos 1 to 4 [C2014-068E] be agreed to—put and resolved in the affirmative.
Government amendments Nos 1 to 4 [C2014-068E] agreed to.
Clause 32 as amended agreed to.
Clause 33 agreed to.
Clause 34 agreed to.
Clause 35 agreed to.
Clause 36 as amended agreed to.
Clause 37 agreed to.
Clauses 38 to 46 agreed to.
Clause 47 agreed to.
Clauses 48 to 51 agreed to.
Schedules 1 to 5 agreed to.
Title agreed to.
Bill reported from Committee with amendments.
Adoption of Report
Motion by the Hon. John Ajaka agreed to:
That the report be adopted.
Report adopted.
Leave granted to proceed to the third reading of the bill forthwith.
Third Reading
Motion by the Hon. John Ajaka agreed to:
That this bill be now read a third time.
Bill read a third time and transmitted to the Legislative Assembly with a message seeking its concurrence in the bill.
CHILD PROTECTION (OFFENDERS REGISTRATION) AMENDMENT (STATUTORY REVIEW) BILL 2014
Bill received from the Legislative Assembly, and read a first time and ordered to be printed on motion by the Hon. Matthew Mason-Cox, on behalf of the Hon. John Ajaka.
Motion by the Hon. Matthew Mason-Cox, on behalf of the Hon. John Ajaka, agreed to:
That standing orders be suspended to allow the passing of the bill through all its remaining stages during the present or any one sitting of the House.
Second reading set down as an order of the day for a later hour. 30446 LEGISLATIVE COUNCIL 13 August 2014
MUTUAL RECOGNITION (AUTOMATIC LICENSED OCCUPATIONS RECOGNITION) BILL 2014
Second Reading
Debate resumed from 12 August 2014.
The Hon. MATTHEW MASON-COX (Minister for Fair Trading) [5.28 p.m.], in reply: It is a pleasure for me again to participate in debate on this important bill. I thank all members who contributed to the debate. As members have heard, this bill will enable the holder of a recognised licence to work in that occupation in New South Wales. A single licence to carry out regulated work is enshrined in this framework law. New South Wales is again leading the country by creating this model for automatic mutual recognition of licensed occupations. Labour mobility and small business viability are improved through this bill because it will remove various costs faced by tradespeople. The Liberal-Nationals Government is committed to making life easier in regional communities, as this bill shows.
I now turn to the other issues raised by members of the House. This is not a race to the bottom. Automatic mutual recognition does not provide any greater access to a New South Wales occupational licence than under existing mutual recognition laws—that must be remembered. The bill respects each sovereign jurisdiction's rights to control the requirements for regulated occupations. New South Wales will not enter into reciprocal automatic mutual recognition arrangements unless a jurisdiction has an equivalent licence and robust entry standards.
I note the concerns raised by members of the Opposition and crossbench in relation to maintaining the integrity of the standards applied to occupational licensing. New South Wales will be able to control the particular licence types and particular jurisdictions to which this scheme will apply. People whose interstate licence will be recognised in New South Wales would be bound by the same standards and rules of conduct as those that apply to New South Wales licensees.
I note Dr John Kaye requested confirmation in relation to part 2, clause 4, of the bill. I confirm Dr John Kaye's understanding that clause 4 works on a jurisdiction-by-jurisdiction and licence-by-licence basis. Therefore, it would be up to the licensing authority to secure the standards of occupational licensing in New South Wales by not automatically mutually recognising the licence of a State where the standards are in conflict with or are significantly lower than those enforced in New South Wales. This is a particularly germane point. I trust this addresses the concerns of Dr John Kaye and the concerns of Reverend the Hon. Fred Nile.
I now turn to the concerns raised in relation to the continuing professional development requirements. Since continuing professional development was introduced a decade ago, the qualification requirements to become a builder have been significantly strengthened. We now have a more educated and better trained workforce. The Government, through NSW Fair Trading, is committed to providing free ongoing information and educational opportunities to builders. The Housing Industry Association strongly supports the removal of mandatory continuing professional development. It is red tape that does not deliver any tangible benefit to industry or consumers. I will go into further detail about the removal of the continuing professional development requirements during the Committee stage.
Members have raised concerns about safety and consumer protection if the New South Wales air-conditioning and refrigeration licence is removed. I assure members that this industry is heavily regulated at both Federal as well as State levels, and the same measures that apply throughout Australia will apply in New South Wales. These include the Commonwealth refrigeration licence requirement, work health and safety laws, public health laws, Australian standards, the necessity to comply with manufacturer guidance material, and the Australian Consumer Law. A New South Wales licence does not assure any different outcomes.
I note the specific concern raised by Dr John Kaye regarding the electrical work that needs to be carried out for refrigeration and air-conditioning work. The training requirement for obtaining the Commonwealth refrigeration and air-conditioning licence contains necessary electrical units of competency for the purposes of installing and disconnecting the equipment. The current New South Wales refrigeration and air-conditioning licence requires the same training. Therefore, in order to remove the licensing duplication, the bill removes the New South Wales licensing requirement—since the training and education requirements to obtain the Commonwealth licence are the same for the New South Wales licence. However, the installation and disconnection of the equipment requires electrical wiring work, which is not licensed at the Commonwealth level. Therefore, it is necessary to retain a restricted electrical licence as New South Wales regulates all electrical wiring work. 13 August 2014 LEGISLATIVE COUNCIL 30447
The removal of the New South Wales licence requirement for refrigeration and air-conditioning work, as well as the removal of the continuing professional development for builders, will provide real savings to tradespeople. It is not necessary for the Government to put its hand in tradespeople's pockets to make them pay for redundant and duplicative regulation. This bill is an important red tape reduction measure for tradespeople and their businesses. Border communities are a single economy and the impact of regulation needs to be acknowledged and tailored to those special conditions and circumstances. The reality of a border has brought up practical difficulties for these tradespeople. The bill is designed with the needs of cross-border communities front of mind. The policies in this bill resolve many of the practical difficulties that the Cross Border Commissioner has encountered firsthand in the way the States regulate occupations.
The removal of a requirement to hold two licences in New South Wales to do air-conditioning and refrigeration work means that a barrier for tradespeople is dismantled and their capacity to work and serve consumers is enhanced. The enshrining of the principle that one licence is sufficient regulation for an occupation will reduce costs for tradespeople, especially those in regional communities. The policy will also support a natural disaster response by facilitating licensed tradespeople quickly getting to the location without having to register or take out a duplicative licence issued by the jurisdiction in which the emergency is located. We have seen these disasters in the form of tropical cyclones, floods and bushfires. This initiative will also allow for industry growth and development well into the future. For all these reasons, I commend the bill in its current form 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.
The Hon. ADAM SEARLE (Deputy Leader of the Opposition) [5.36 p.m.]: I move Opposition amendment No. 1 on sheet C2014-067:
No. 1 Page 2, clause 3, lines 10 and 11. Omit ", or another jurisdiction prescribed by the regulations".
As foreshadowed in my second reading contribution, the amendment addresses the definition on page 2 of the bill in clause 3 regarding the meaning of "another jurisdiction". The bill provides:
another jurisdiction means another State or a Territory, or another jurisdiction prescribed by the regulations.
Opposition amendment No. 1 would omit the words "or another jurisdiction prescribed by the regulations". This bill is about mutual recognition within the various States and Territories of Australia. This bill, however, goes beyond that. Those additional words in the clause would open up the mutual recognition scheme to have it extend to jurisdictions outside Australia—to New Zealand and possibly other countries as well. Those are matters that should be the subject of separate legislation. This bill should be confined to what the Minister and the Government have said it is: mutual recognition within the Commonwealth of this country.
Reverend the Hon. FRED NILE [5.38 p.m.]: I am speaking to clause 3 and the question of what the wording "another jurisdiction" means. The Christian Democratic Party shared some of the concerns outlined by the Deputy Leader of the Opposition as to what the term "another jurisdiction" could mean, and whether it could include Fiji and other Pacific nations. I understand the intention was that this legislation would apply only to New Zealand. To make that clear I will move an amendment to omit the wording in the bill and replace that wording with the words "or New Zealand". That will make it absolutely clear that the section refers to another State or Territory of Australia or to New Zealand, and not to any other nation. So we will not support the Opposition's amendment, but we will proceed with the amendment that I have just foreshadowed, inserting the words "or New Zealand".
The Hon. MATTHEW MASON-COX (Minister for Fair Trading) [5.39 p.m.]: I thank Reverend the Hon. Fred Nile for outlining his amendment. It deals with the strong concerns held by the Opposition and other members about how far the provisions of this bill go in terms of recognising other jurisdictions. It was the 30448 LEGISLATIVE COUNCIL 13 August 2014
Government's belief the Opposition's amendment was potentially too restrictive as it did not recognise the application of the Trans-Tasman Mutual Recognition (New South Wales) Act 1996, which provides for mutual recognition of New Zealand occupational licences.
Therefore, the Mutual Recognition (Automatic Licensed Occupations Recognition) Bill 2014 ought to also include a provision to recognise licences issued in New Zealand, where appropriate. Removal of the words "or another jurisdiction prescribed by the regulations" would remove even a possibility of allowing for automatic mutual recognition of certain New Zealand licences. The amendment foreshadowed by the Christian Democratic Party reflects a practical approach and provides clarity about how precisely this bill will operate. Certainly, it never was intended to operate outside the scope of the trans-Tasman agreement. I commend Reverend the Hon. Fred Nile for working constructively with the Government to ensure that clarification is made by his amendment to the Opposition's amendment.
Reverend the Hon. FRED NILE [5.40 p.m.]: To make things clear, I foreshadowed an amendment. I move Christian Democratic Party amendment No. 1 on sheet No. C2014-076:
No. 1 Page 2, clause 3, lines 10 and 11. Omit ", or another jurisdiction prescribed by the regulations". Insert instead "or New Zealand".
This amendment will make things clear, as I expressed in my contribution to the second reading debate. The confusion was the meaning of "other jurisdictions" and whether that could have included Fiji and other places. My concerns were to ensure that this bill's policy applies only to jurisdictions that have sound and high-quality requirements and administration when issuing occupational licences. I understand that the effect of the Opposition amendment will limit the mutual recognition of licences to Australian jurisdictions only—in other words, Australian States or Territories. However, I am advised that the Trans-Tasman Mutual Recognition (New South Wales) Act 1996 provides already for mutual recognition of New Zealand occupational licences. Therefore, it would be desirable to provide a power under the Mutual Recognition (Automatic Licensed Occupations Recognition) Bill 2014 should there be a need to recognise New Zealand licences.
Removing the words "or another jurisdiction prescribed by regulations" would remove even the possibility of allowing for automatic mutual recognition of certain New Zealand licences. The Christian Democratic Party amendment provides the capacity for the automatic mutual recognition of licences issued by New Zealand authorities. Members know that New Zealand has the same high standards in various trades as Australia. We will not be in any danger of weakening New South Wales standards. This amendment provides the opportunity, where desirable, to recognise licences issued by New Zealand authorities. I commend the Christian Democratic Party amendment to the Committee.
The Hon. ADAM SEARLE (Deputy Leader of the Opposition) [5.43 p.m.]: I thank Reverend the Hon. Fred Nile for moving his amendment. Deleting the words "or another jurisdiction prescribed by the regulations" to narrow the provisions is good, but I do not think the Opposition will be able to support the amendment. I understand from Reverend the Hon. Fred Nile's comments that it will probably receive the support of the Government and perhaps other parties.
Dr John Kaye: Not us.
The Hon. ADAM SEARLE: I acknowledge that interjection. The trans-Tasman legislation to which the previous speaker referred provides for automatic recognition of occupations. In that case, the amendment proposed by the Christian Democratic Party actually would add nothing, or it adds something that is not already provided for in law. That something, which is to extend this regime to New Zealand, should be the subject of separate consideration and debate. This bill has always been put forward by the Government, as I understood, to provide mutual recognition within Australia, within the Commonwealth, within the several States and Territories only. The Christian Democratic Party amendment goes beyond that. We should confine the bill to what the Government has claimed it is about. The Opposition will maintain its amendment No. 1 and will not support the Christian Democratic Party amendment. However, I understand what the result might be.
Dr JOHN KAYE [5.44 p.m.]: I am surprised by the remarks of Reverend the Hon. Fred Nile, not that it is in any way a problem for him but it is a huge problem for the Government. Now we are told that it always was the intention that this bill might apply to the trans-Tasman mutual recognition agreement. Nowhere in the second reading speech or in his address in reply does the Minister mention the trans-Tasman mutual recognition agreement. Nowhere in his speech does he mention New Zealand. His speech is about the National Occupation Licensing Scheme [NOLS], which did not include New Zealand. In his second reading speech he talks about 13 August 2014 LEGISLATIVE COUNCIL 30449
mutual recognition between Queensland and New South Wales, between the Australian Capital Territory and New South Wales, and gives a number of interstate examples, but he makes no mention of international examples. Suddenly, now in the Committee stage, having concluded the second reading debate and voted, we are told, "Oh, no, actually it's not just about NOLS; it's not just about recognition between Queanbeyan and The Tweed"—et cetera—it is about New Zealand."
Suddenly, New Zealand is being added to the bill. I believe that changes the entire meaning and intent of the bill as laid out by the Minister's second reading speech. It completely and substantially undermines the second reading speech. Of grave concern to The Greens is that suddenly we are debating an issue about New Zealand when it was not before us previously. The Greens cannot support including the New Zealand jurisdiction because it was not the intent of the bill; it was not discussed and it was not debated. It has been dropped on us suddenly after some kind of deal between the Christian Democratic Party and the Government at the very end of the process. That is an extremely poor process. If we had been aware that New Zealand was to be included in the bill we would have researched the New Zealand occupational licensing standards. The Minister's second reading speech makes no such mention.
In fact, the Minister has come perilously close to misleading the House in his second reading speech by focusing entirely on the National Occupational Licensing Scheme. This raises a serious question as to the leave of the bill. We should examine carefully whether this proposal is within the leave of the bill. The Greens cannot support this amendment. If the Government were interested in a mutual recognition arrangement with New Zealand, it ought to have been up-front about it. The Government ought to have mentioned the interaction between this and existing legislation regarding New Zealand and a debate should have been had about the advisability of those mechanisms. This proposal is an exceptionally poor process, cobbled together in some kind of deal between the Christian Democratic Party and the Government. Therefore, The Greens cannot support the amendment.
The Hon. Amanda Fazio: Point of order: Under "Definitions" the bill states:
In this Act:
another jurisdiction means another State or a Territory, or another jurisdiction prescribed by the regulations.
We have not yet heard how this will work. Adding New Zealand through a Christian Democratic Party amendment means that the amendment is outside the leave of the bill. I ask for a ruling because I believe the amendment does not comply with the requirement that amendments must be within the leave of the bill.
Reverend the Hon. FRED NILE [5.49 p.m.]: To the point of order—and in response to the earlier remarks by Dr John Kaye—the bill has within it the words "or another jurisdiction prescribed by the regulations". It was clear to members. The Opposition moved to delete it. The issue of another jurisdiction is not a surprise; the wording of the bill is "another jurisdiction". The aim of my amendment is to change its impact to specifically one jurisdiction—that is, New Zealand. Clearly it is not only within the leave of the bill, it is within the wording of the bill.
The Hon. MATTHEW MASON-COX (Minister for Fair Trading) [5.50 p.m.]: I support Reverend the Hon. Fred Nile. He has made an obvious point and I do not understand why it was missed by the Opposition and The Greens. This issue was raised in discussion with members before the second reading debate concluded, so it is disingenuous for them to throw this up as a cataclysmic result. The leave of the bill was self-evident from the start. It applied to other jurisdictions, which may have been put in regulation. We have sought to clarify it to ensure that it applies to one jurisdiction—New Zealand—which reflects the fact that we have a trans-Tasman mutual recognition arrangement with New Zealand. There is hardly anything revolutionary about it.
TEMPORARY CHAIR (The Hon. Sarah Mitchell): Order! Following advice from the Clerk, I do not uphold the point of order. The amendment is in order.
Question—That Opposition amendment No. 1 [C2014-067] be agreed to—put and resolved in the affirmative.
Opposition amendment No. 1 [C2014-067] agreed to.
TEMPORARY CHAIR (The Hon. Sarah Mitchell): Order! I will now deal with the Christian Democratic Party amendment No. 1 on sheet C2014-076. 30450 LEGISLATIVE COUNCIL 13 August 2014
Dr JOHN KAYE [5.53 p.m.]: The Committee is unable to deal with amendment No. 1 moved by Reverend the Hon. Fred Nile because the words proposed in his amendment have been deleted. Opposition amendment No. 1, which was agreed to, deleted "or another jurisdiction". Those words cannot be deleted again, so the Christian Democratic Party amendment No. 1 no longer makes sense. It is out of order and therefore lapses.
TEMPORARY CHAIR (The Hon. Sarah Mitchell): Order! I will put the question on the second part of the Christian Democratic Party amendment No. 1, which reads "Insert instead 'or New Zealand'."
Dr JOHN KAYE [5.54 p.m.]: As I understand, there were two amendments before the Committee. The amendment moved by the Hon. Adam Searle was to omit the words "or another jurisdiction prescribed by the regulations". The Committee voted to delete them. The second amendment before the Committee on sheet C2014-076, which has just been circulated, states:
Omit, "or another jurisdiction prescribed by the regulations". Insert instead "or New Zealand".
The Committee cannot now deal with an amendment to a part of the bill that no longer exists.
TEMPORARY CHAIR (The Hon. Sarah Mitchell): Order! The advice that I have been given is that the Christian Democratic Party amendment is essentially in two parts: the first part being the same as the amendment proposed by the Deputy Leader of the Opposition, which has already been agreed to; and the second being to "Insert instead 'or New Zealand'", which can now be voted on.
Question—That Christian Democratic Party amendment No. 1 [C2014-076] that relates to "Insert instead 'or New Zealand'" be agreed to—put.
The Committee divided.
[In division]
Dr John Kaye: Point of order: Section 4 of the Trans-Tasman Mutual Recognition (New South Wales) Act 1996 refers power to the Commonwealth to conclude any arrangement between New South Wales and New Zealand in respect of licensing. Therefore, I question whether having referred the matter to the Commonwealth we can then include the matter in the bill. Having referred the matter, I suspect that we have stepped outside of the residual constitutional capacities of the New South Wales Parliament.
TEMPORARY CHAIR (The Hon. Sarah Mitchell): Order! I have been advised that this is the correct procedure and, if necessary, the issue can be dealt with at a later stage.
Ayes, 21
Mr Ajaka Mr Gay Reverend Nile Mr Blair Mr Green Mrs Pavey Mr Borsak Mr Harwin Mr Pearce Mr Brown Mr Khan Mr Clarke Mr Lynn Ms Cusack Mr MacDonald Tellers, Ms Ficarra Mrs Maclaren-Jones Mr Colless Miss Gardiner Mr Mason-Cox Dr Phelps
Noes, 18
Ms Barham Mr Moselmane Mr Whan Mr Buckingham Mr Primrose Mr Wong Ms Cotsis Mr Searle Mr Donnelly Mr Secord Dr Faruqi Mr Shoebridge Tellers, Mr Foley Mr Veitch Ms Fazio Dr Kaye Ms Westwood Ms Voltz 13 August 2014 LEGISLATIVE COUNCIL 30451
Pair
Mr Gallacher Ms Sharpe
Question resolved in the affirmative.
Christian Democratic Party amendment No. 1 [C2014-076] that relates to "Insert instead 'or New Zealand'" agreed to.
Clause 3 as amended agreed to.
Clause 4 agreed to.
The Hon. ADAM SEARLE (Deputy Leader of the Opposition) [6.02 p.m.]: I move Opposition amendment No. 1 on sheet C2014-075:
No. 1 Page 3. Insert after line 13:
5 Power to refuse mutual recognition if grounds for cancellation exist
(1) The local licensing authority for a deemed local licence that is equivalent to a recognised licence held by a person may, on any grounds that the local licensing authority could cancel the deemed local licence held by the person, refuse mutual recognition of the person's recognised licence.
(2) Despite any other provision of this Act, a person does not hold a deemed local licence if the local licensing authority has refused mutual recognition of the person's recognised licence to which the deemed local licence is equivalent.
(3) A local licensing authority that refuses the mutual recognition of a recognised licence held by a person must give the person notice in writing of the refusal.
(4) The holder of a recognised licence that is refused mutual recognition under this section has the same rights of appeal as the holder of the equivalent deemed local licence would have if the deemed local licence had been cancelled on the grounds on which mutual recognition of the recognised licence was refused.
(5) A local licensing authority may at any time withdraw a refusal of mutual recognition of a recognised licence by notice in writing to the holder of the recognised licence.
This amendment replaces Opposition amendment No. 2 on sheet C2014-067. The Opposition will no longer be proceeding with that amendment. Opposition amendment No. 1 on sheet C2014-075 will provide a power in the local licensing authority for a deemed local licence equivalent to a recognised licence to be cancelled by the licensing authority if grounds for cancellation within New South Wales exist. The bill already gives the local licensing authority power to cancel or suspend a deemed local licence on the same grounds as it can for an actual local licence. This will give the local licensing authority a pre-emptive power to refuse mutual recognition if grounds that would otherwise support cancellation exist. It would be nonsense, if those grounds do exist, to mutually recognise a licence and then institute machinery for its cancellation. The mutual recognition should not have to be granted in the first place. In short, there should be an opt-out provision; this amendment is how that should look. I urge members to support this sensible and reasonable measure to improve the legislation.
The Hon. MATTHEW MASON-COX (Minister for Fair Trading) [6.04 p.m.]: The Government opposes Opposition amendment No. 1.
TEMPORARY CHAIR (The Hon. Sarah Mitchell): Order! There is too much audible conversation in the Chamber. I am finding it difficult to hear the Minister.
The Hon. MATTHEW MASON-COX: This amendment reflects a fundamental misunderstanding of how automatic mutual recognition licences work. It seeks to allow a local licensing authority to refuse mutual recognition of an individual licence holder if grounds to cancel the licence exist. The purpose of the bill is to allow automatic mutual recognition of particular licences to be prescribed in the regulation for the specific purpose of reducing both red tape and licence costs and/or fees for tradespeople. The effect of automatic mutual recognition is to remove an application requirement by a licence holder. 30452 LEGISLATIVE COUNCIL 13 August 2014
There would be no opportunity for a local licensing authority to assess whether grounds for a cancellation exist prior to a licensee working in New South Wales. Under the relevant legislation existing powers are held by a local licensing authority such as NSW Fair Trading to cancel an individual licence as part of disciplinary proceedings. It would be more appropriate for disciplinary action to be taken under the relevant legislation—for example, the Home Building Act 1989—than to refuse mutual recognition of an individual licence per se.
By deeming licences to be an equivalent local licence, they will fall under the relevant New South Wales laws. The local licensing authority has a full range of disciplinary powers which can be brought to bear on a deemed licensee, provided the licence has been mutually recognised. That is the point. All occupational licence holders will continue to be able to rely on the existing Mutual Recognition (New South Wales) Act 1992, which relies on a text-based referral, with no opt-out provision given to NSW Fair Trading or any other New South Wales agency.
The Hon. ADAM SEARLE (Deputy Leader of the Opposition) [6.06 p.m.]: I understand what the Minister has said. However, in the appropriate case where the licensing authority does have matters brought to its attention prior to a person coming from interstate or from New Zealand—now that the legislation has been extended—to practise their occupation in this State, it should have the power to refuse mutual recognition if grounds that would otherwise support a cancellation exist. Obviously the mechanism would work only if it is seized of factual information beforehand. I understand it might well be a rare occasion but, where the occasion does arise, the local licensing authority should have the relevant power.
Dr JOHN KAYE [6.07 p.m.]: The Greens support Opposition amendment No. 1 on sheet C2014-075 and thank it for this significant improvement. We were struggling with the original amendment on sheet C2014-073. This amendment makes it clear that the refusal of mutual recognition of a person's recognised licence can be only on grounds a local licensing authority can use to cancel a deemed local licence held by that person. It puts the capacity to refuse a licence on the same footing as a licence that would be issued in the normal course of events in New South Wales. The amendment proposes to extend the power of clause 5 of the bill. Existing clause 5 does not cover the case of refusal; this amendment will extend it to the case of refusal. The Greens support the amendment.
Question—That Opposition amendment No. 1 [C2014-075] be agreed to—put.
The Committee divided.
Ayes, 18
Ms Barham Mr Moselmane Mr Whan Mr Buckingham Mr Primrose Mr Wong Ms Cotsis Mr Searle Mr Donnelly Mr Secord Dr Faruqi Mr Shoebridge Tellers, Mr Foley Mr Veitch Ms Fazio Dr Kaye Ms Westwood Ms Voltz
Noes, 21
Mr Ajaka Mr Gay Reverend Nile Mr Blair Mr Green Mrs Pavey Mr Borsak Mr Harwin Mr Pearce Mr Brown Mr Khan Mr Clarke Mr Lynn Ms Cusack Mr MacDonald Tellers, Ms Ficarra Mrs Maclaren-Jones Mr Colless Miss Gardiner Mr Mason-Cox Dr Phelps
Pair
Ms Sharpe Mr Gallacher 13 August 2014 LEGISLATIVE COUNCIL 30453
Question resolved in the negative.
Opposition amendment No. 1 [C2014-075] negatived.
Clause 5 agreed to.
Clauses 6 to 13 agreed to.
The Hon. ADAM SEARLE (Deputy Leader of the Opposition) [6.16 p.m.]: I move Opposition amendment No. 3 on sheet C2014-067:
No. 3 Page 5, clause 14, lines 11 and 14. Omit "5 years" wherever occurring. Insert instead "3 years".
This amendment changes the proposed five-year review period to a three-year review period.
The Hon. MATTHEW MASON-COX (Minister for Fair Trading) [6.16 p.m.]: The effect of this amendment would be to reduce the statutory review period, as the member said, from five years to three years. However, by convention the standard statutory review period is five years, not three years. It would be prudent to allow the review period to remain at five years. In that regard, the Government opposes this amendment.
Dr JOHN KAYE [6.17 p.m.]: As outlined in my contribution to the second reading debate, the changes anticipated by this bill are quite significant and could have unintended consequences for both occupational health and safety and consumer safety, as well as for the industries within the regulatory reach. To that extent, three years makes more sense because if a problem emerges it would be far better to know about it in three years rather than in five years. The Greens support the amendment.
Question—That Opposition amendment No. 3 [C2014-067] be agreed to—put and resolved in the negative.
Opposition amendment No. 3 [C2014-067] negatived.
Clause 14 agreed to.
Schedule 1 agreed to.
The Hon. ADAM SEARLE (Deputy Leader of the Opposition) [6.18 p.m.], by leave: I move Opposition amendments Nos 4 and 6 on sheet C2014-067 in globo:
No. 4 Page 7, schedule 2, lines 2–8. Omit all words on those lines.
No. 6 Page 7, schedule 2, lines 11–22. Omit all words on those lines.
These amendments affect page 7 of the bill. Lines 2 to 8 cover the amendments proposed to the Home Building Act—or at least those that affect specialist work, the definitions of "supervisor certificate" and "tradesperson certificate", and unqualified refrigeration or air conditioning work. Lines 11 to 22 deal with electricity, refrigeration and air conditioning and the amendments proposed by the Opposition to the Home Building Regulation in relation to "air conditioning work" and "refrigeration work". In short, these two amendments are directed towards maintaining the integrity of occupational licensing in this State. It is very important not only to the professions but also to consumers, and we think to protecting public safety. These amendments are in the public interest.
The Hon. MATTHEW MASON-COX (Minister for Fair Trading) [6.19 p.m.]: As the member said, the effect of the Opposition amendments is to retain the existing licences for refrigeration and air conditioning work in New South Wales. Currently air conditioning and refrigeration mechanics in New South Wales must hold both a Commonwealth ARCtick Australian Refrigeration Council licence and a New South Wales refrigeration and air conditioning licence. The training is identical under both licences.
This bill seeks to remove the requirement that persons who carry out refrigeration or air conditioning work must hold specific refrigeration or air conditioning authority for specialist work under the Home Building Act 1989. The current New South Wales licence duplicates the applicable Commonwealth licence 30454 LEGISLATIVE COUNCIL 13 August 2014
that a refrigeration mechanic must also hold. The purpose of the bill is to reduce red tape for tradespeople and to reduce costs for building. Apart from New South Wales no other Australian State or Territory has the requirement of a State or Territory based occupational licence for air conditioning and refrigeration mechanics.
All other States and Territories rely on the Commonwealth licensing requirement, work health and safety laws, public health laws, Australian standards, manufacturing guidance material and, of course, the Australian Consumer Law. The holding of a New South Wales licence is no substitute or alternative for these exhaustive requirements. The bill instead creates a new category of specialist electrical wiring work that applies only to the disconnection and reconnection of refrigeration and air conditioning equipment that is fixed. This would make New South Wales consistent with the approach taken in all other Australian jurisdictions. The Opposition amendment seeks to maintain the status quo, the duplication of licensing requirements under both New South Wales and Commonwealth levels. It is for this good policy reason that the Government opposes these amendments.
The Hon. ROBERT BROWN [6.21 p.m.]: The Shooters and Fishers Party supports the status quo; therefore, it will be supporting the Opposition amendments.
Dr JOHN KAYE [6.21 p.m.]: For the reasons outlined in my contribution to the second reading debate The Greens will be supporting these amendments. It is an important matter concerning occupational health and safety, consumer safety and the integrity of the industries involved.
Reverend the Hon. FRED NILE [6.22 p.m.]: I outlined in my contribution to the second reading debate on behalf of the Christian Democratic Party that we have concerns about the scrapping of these licences and we have not heard any real evidence to justify it. Therefore, we will be supporting the amendments to retain the status quo in this State for good governance, safety and the protection of consumers.
Question—That Opposition amendments Nos 4 and 6 [C2014-067] be agreed to—put.
Division called for and Standing Order 114 (4) applied.
The Committee divided.
Ayes, 22
Ms Barham Mr Green Mr Veitch Mr Borsak Dr Kaye Ms Westwood Mr Brown Mr Moselmane Mr Whan Mr Buckingham Reverend Nile Mr Wong Ms Cotsis Mr Primrose Mr Donnelly Mr Searle Tellers, Dr Faruqi Mr Secord Ms Fazio Mr Foley Mr Shoebridge Ms Voltz
Noes, 17
Mr Ajaka Mr Gay Mr Mason-Cox Mr Blair Mr Harwin Mrs Pavey Mr Clarke Mr Khan Mr Pearce Ms Cusack Mr Lynn Tellers, Ms Ficarra Mr MacDonald Mr Colless Miss Gardiner Mrs Maclaren-Jones Dr Phelps
Pair
Ms Sharpe Mr Gallacher
Question resolved in the affirmative.
Opposition amendments Nos 4 and 6 [C2014-067] agreed to. 13 August 2014 LEGISLATIVE COUNCIL 30455
The Hon. ADAM SEARLE (Deputy Leader of the Opposition) [6.25 p.m.]: I move Opposition amendment No. 5 on sheet C2014-067:
No. 5 Page 7, schedule 2, lines 9 and 10. Omit all words on those lines.
This amendment omits lines 9 and 10 on page 7 of the bill that omit the continuing professional development [CPD] requirements that currently exist in the home building legislation. For the reasons I outlined in my second reading contribution we think those CPD requirements should be retained. Again, it ensures that people working in these industries are obliged to keep abreast of the latest developments in practice and techniques and are able to demonstrate that. That not only ensures the integrity of the occupational regulatory regime but also promotes consumer protection and public safety. For those reasons we wish to keep the continuing professional development requirements in the legislation.
The Hon. MATTHEW MASON-COX (Minister for Fair Trading) [6.26 p.m.]: The effect of the Opposition amendment as articulated by the member is to retain the requirement for mandatory continuing education for builders. A decade ago the continuing professional development requirement, or CPD, was introduced partly in response to concerns about the quality of building. It subsequently became evident that these concerns had a basis in the entry standards for a builders licence. Following the Independent Commission Against Corruption inquiry called Operation Ambrosia the Commissioner for Fair Trading promptly responded by removing the pathway for a licence that was based on experience only. That pathway was open to fraud and did not satisfy any objective standard.
Since 2006 the entry standards to obtain a building or other licence have become much stricter. Formal qualifications are required. In most cases two qualifications are necessary for a builders licence as well as proven on-site building experience. The most common applications are made by applicants who achieve both a certificate III in carpentry and a certificate IV in building and construction or a certificate IV in building and construction and a diploma of building and construction. All applications for a building licence are carefully examined and verified.
In the 10 years since CPD commenced licensees have had more training than their predecessors and this better-educated builder is more than able to keep abreast of change. Sixty per cent of builders today have entered the industry since 2006 under the higher qualification requirement. Targeted Fair Trading information programs also keep builders up to date. This includes email newsletters, material on our website and educational seminars run throughout the State. Many tradespeople are also kept up to date through their associations such as the Master Builders Association [MBA] or the Housing Industry Association [HIA].
New South Wales is alone in Australia in having the CPD requirement for builders and there is no evidence that our buildings are any different from buildings in Victoria or Queensland. Nor is there any data to demonstrate that CPD raises conduct standards. This is the evidence. The Housing Industry Association supports the removal of CPD requirements for tradespeople. On 1 January 2011 the Australian Consumer Law commenced, and it provides for consumer guarantees about the quality of service and product. A mandatory education requirement does not provide for a different outcome.
The CPD requirement is an expensive and unnecessary cost burden on all businesses. It is an inflexible requirement without any proven benefits. Again, that is the stated evidence. The Independent Pricing and Regulatory Tribunal [IPART] estimated this reform may produce net benefits of approximately $8.1 million per year in 2012 dollars. IPART quoted the Housing Industry Association, which stated that it costs between $100 and $500 to complete the general CPD annual requirement.
The removal of that cost would be welcomed by industry. This is one less matter with which builders need to concern themselves. They no longer have to set aside time before renewing a licence or certificate to undertake continuing professional development [CPD]. Builders can instead focus their efforts on providing a good customer service and growing their business. Accordingly, the Government opposes this amendment.
The Hon. ROBERT BROWN [6.29 p.m.]: Having been involved for nearly 50 years, man and boy, in heavy industry and the building trades, I value the concept of continuing professional development and as a consumer I value that concept in the tradespersons I may or may not employ in the future. The Minister's arguments are good ones, but I am afraid that the Opposition's arguments are better. The Shooters and Fishers Party will support the amendment. 30456 LEGISLATIVE COUNCIL 13 August 2014
Dr JOHN KAYE [6.30 p.m.]: The Government is keen on quoting figures about how much continuing professional development [CPD] costs various industries. Those figures are always easy to create, but what they do not do is balance that cost against the benefits not just to the industries but also to consumers and the workforce. This is a century of dynamic economic and technical change. To remove the requirement that professions are updated and are aware of changes in their profession, not just in relation to purely technical matters but also in relation to regulatory and economic matters that surround their industry, is to condemn us to a second-rate industrial environment. In a highly competitive world that would be a really foolish move. I strongly support the amendment to maintain CPD in these industries.
The Hon. ADAM SEARLE (Deputy Leader of the Opposition) [6.31 p.m.]: I thank members for their contributions to the debate. The Government's argument seems to come down to a single point, which is that it does not seem to work and it does not seem to make much of a difference. I say two things to that: first, if that is true, it is an indictment on the Government's regulatory function and really calls upon the Government to lift its game and ensure it makes a difference; secondly, that is not the feedback that the Opposition has received, which is that it plays a useful and vital role in ensuring public safety and consumer protection and in maintaining that those working in the industry keep abreast of the latest developments. The Opposition strongly presses the amendment.
Question—That Opposition amendment No. 5 [C2014-067] be agreed to—put and resolved in the affirmative.
Opposition amendment No. 5 [C2014-067] agreed to.
Schedule 2 as amended agreed to.
Title agreed to.
Bill reported from Committee with amendments.
Adoption of Report
Motion by the Hon. Matthew Mason-Cox agreed to:
That the report be adopted.
Report adopted.
Third Reading
Motion by the Hon. Matthew Mason-Cox agreed to:
That this bill be now read a third time.
Bill read a third time and transmitted to the Legislative Assembly with a message seeking its concurrence in the bill.
[Deputy-President (The Hon. Natasha Maclaren-Jones) left the chair at 6.34 p.m. The House resumed at 8.00 p.m.]
STATE REVENUE LEGISLATION FURTHER AMENDMENT BILL 2014
MINING AMENDMENT (SMALL-SCALE TITLE COMPENSATION) BILL 2014
Bills received from the Legislative Assembly.
Leave granted for procedural matters to be dealt with on one motion without formality.
Motion by the Hon. John Ajaka agreed to:
That the bills be read a first time and printed, standing orders be suspended on contingent notice for remaining stages and the second readings of the bills be set down as orders of the day for a later hour.
Bills read a first time and ordered to be printed.
Second readings set down as orders of the day for a later hour. 13 August 2014 LEGISLATIVE COUNCIL 30457
BUSINESS OF THE HOUSE
Postponement of Business
Government Business Order of the Day No. 3 postponed on motion by the Hon. John Ajaka and set down as an order of the day for a later hour.
UNIVERSITIES LEGISLATION AMENDMENT (REGULATORY REFORMS) BILL 2014
Second Reading
The Hon. CATHERINE CUSACK [8.03 p.m.], on behalf of the Hon. John Ajaka: 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.
Introduction
The Universities Legislation (Regulatory Reforms) Bill 2014 continues the process of updating university legislation that was begun by the Government with the Universities Governing Bodies Act in 2011.
In introducing that Act in 2011, the Minister for Education made the important point that New South Wales universities are both major public institutions of great strategic value to the State and very significant businesses.
He indicated that university governance arrangements needed to reflect that reality and that our universities should be supported to maintain their current strengths and to continue to develop in ways that properly equip them to thrive into the future.
The 2011 Act was an affirmation of the New South Wales Coalition Government's commitment to universities' autonomy and independence, while also ensuring that proper governance arrangements are in place.
In that same spirit, the current bill will reduce the degree of direct regulation of universities by the Government regarding key aspects of financial management, land dealings and governing body election procedures.
The changes are necessary to bring university legislation in this State into the 21st century and allow universities to function in a fully-fledged way as statutory corporations in demanding commercial environments.
The bill provides universities with increased freedom to enter into commercial arrangements that support their core functions of teaching, learning, research and scholarship.
This bill recognises that university governing bodies have statutory responsibility over their own institutions. Accordingly, it reduces the amount of external regulation on universities and gives governing bodies a greater say in key aspects of university management.
Background and rationale for the changes
The purpose of the bill is to reduce red tape by removing unnecessary regulation of our universities. This is in accordance with the Government's Better Regulation Principles which require that regulation be periodically reviewed and, if necessary, reformed to ensure its continued efficiency and effectiveness.
Universities are currently subject to a level of regulation that impacts on their capacity to operate efficiently in an increasingly competitive higher education market. These amendments will give universities greater flexibility and reduce administrative costs.
The amendments proposed will reduce the regulatory burden on New South Wales universities, largely in the areas of financial management and commercial activities more generally.
New South Wales universities and the Government have been in dialogue for some time on removal of the range of specific regulatory requirements from university Acts that are contained in this bill.
A review of State university regulation was conducted at Minister Piccoli's request to the Hon. Gabrielle Upton MP, Minister for Sport and Recreation, in her former role as Parliamentary Secretary for Tertiary Education and Skills.
The Minister for Education accepted the advice provided by Ms Upton following her review.
The changes proposed in this bill have resulted from close consultation with New South Wales universities led by the New South Wales Vice Chancellors Committee. They dovetail neatly with amendments made in 2011 in the Universities Governing Bodies Act, which provided universities with the option of streamlining the size of their governing bodies and making the operation of governing bodies more flexible and efficient.
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Consultations in relation to the major changes introduced by this bill have been held with the Treasurer, Auditor-General, Deputy Premier, New South Wales Trade and Investment, Crown Lands Division, University Chancellors and the New South Wales Vice Chancellors Committee. The Crown Solicitor has provided advice on some key matters.
The changes made by this bill
This bill will remove a number of restrictions on university decision-making in areas that will now be solely the responsibility of the governing body of each university. The bill will also clarify some matters that will assist universities in their operations and decision-making.
This is a timely and appropriate development, given the broad responsibility each university Act confers on the governing body for the control and management of the affairs of the university.
The bill acknowledges that governing bodies have robust financial and commercial expertise amongst their membership that is brought to bear on their decision-making processes.
Financial and commercial matters
To better support universities, the objects and functions provisions in the university Acts are amended by this bill to give more abundant certainty to a university's legal capacity to engage in activities to raise revenue.
Universities have become increasingly entrepreneurial. They need to continue to develop their ability to generate income from non-traditional sources.
Existing sections in all the Acts outline the university's objects and functions. These include exercising "commercial functions comprising the commercial exploitation or development … of any facility, resource or property … in which the University has a right or interest …"
The amendment in this bill to the Objects and Functions section of the Acts clarifies that universities are able to engage in activities including commercial ventures involving property and other resources in order to generate revenue that supports their core purposes.
The bill removes the following current requirements regarding financial and commercial matters:
1. That the Governor on the recommendation of the Treasurer approves borrowings by the university.
The current requirement is that university governing bodies may "borrow money within such limits, to such extent and on such conditions as to security or otherwise as the Governor on the recommendation of the Treasurer may approve."
2. That the Minister, with the concurrence of the Treasurer, approves university investment powers.
This requirement states that "The (governing body) may invest the funds of the University in any manner approved by the Minister from time to time by order in writing with the concurrence of the Treasurer." There are currently a variety of arrangements depending on transitional provisions from the former coverage of universities under the Public Authorities (Financial Arrangements) Act 1987.
3. That university funds managers are approved by the Treasurer on the recommendation of the Minister for Education.
The current section in the legislation provides, "The (governing body) may, with the written approval of the Treasurer and in accordance with that approval, engage an approved funds manager to act in relation to the management of the funds of the University." It further provides, "The Treasurer's approval may be given only on the recommendation of the Minister and may be given subject to terms and conditions."
4. That university Guidelines for Commercial Activities are approved by the Minister on the advice of the Treasurer.
The reform provided by this bill will mean university governing bodies approve their own commercial guidelines within the existing framework. They would also retain responsibility for implementing and enforcing the guidelines. Existing checks and balances on this issue in the university Acts remain in place.
Each of these regulatory requirements has involved a series of time consuming interactions between the universities, the Department of Education and Communities and Treasury.
Their removal goes a long way to giving universities greater flexibility and capacity to respond more immediately to market dynamics in managing their own financial and commercial arrangements.
The removal of the highlighted State Government financial approval requirements is consistent with the Government's acknowledgement that universities are essentially independent corporate bodies.
Having university governing bodies fully responsible for these decisions brings greater efficiency and puts accountability squarely where it belongs.
University land matters
The bill modifies the following current requirements in each university's enabling Act:
1. That the Minister for Education approves the sale, encumbrance or long-term lease of all parcels of land that a university has control of (other than Crown land).
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The bill will preserve the requirement for the Minister to approve the sale, encumbrance or lease for more than 21 years of university land that was originally owned by the State and subsequently granted, transferred or sold at nominal or less than market value to a university by the State.
In many cases universities have been given land at nominal or no cost by the State and it is important the State retains an interest in any subsequent sale.
The amendment will correspondingly allow universities to deal as they see fit with land they have acquired that did not previously belong to the State.
2. That land vested in the Crown under the control and management of the university can only be leased for a maximum of 21 years.
This bill removes the limit of 21 years on leases of Crown lands vested in universities but requires that leases over 21 years need approval by the Minister for Education.
In summation, greater flexibility is proposed by this bill in the area of university land dealings, regarding both freehold land and Crown land.
A further clarification in this area provided by the bill is the amendment of a clause in the university Acts regarding the powers of the governing body relating to property. This amendment makes clear that universities in their own right may purchase property as well as acquiring it by gift, grant, bequest, devise or otherwise, for the purposes of their enabling Acts, and may agree to carry out the conditions of any such acquisition.
Election procedures
In relation to each university's enabling Act, the bill removes the following current requirement:
That procedures for elections to the governing body of the university must be prescribed in by-laws rather than in rules made by the governing body.
The detail of university governing body election procedures (including timing, notification methods and method of voting) is required to be contained in by-laws approved by the Governor and subject to parliamentary oversight.
The current requirement is contained in the sections of the university Acts dealing with election to the governing body. They provide that the relevant members are to be "elected in the manner prescribed by the 8 by-laws". There are also specific requirements relating to casual vacancies.
Currently, any by-law amendment is drafted by Parliamentary Counsel, with an Executive Council minute prepared by the Department of Education and Communities to be submitted to the Governor and Executive Council. Amendments involve significant amounts of time for senior officers, both in government agencies and in universities.
This bill proposes instead that universities themselves can in future make rules to set out election procedures about the governing body rather than including them in by-laws.
The rules would not be about the categories of people who are eligible for election, such as staff and student representatives, but the procedures by which they are elected. The categories of people who are elected are provided for by the Act itself.
There will be an additional provision in each university's Act to effect protection of the important basic principle around fairness and democratic processes in rule-making for election procedures. This will be consistent for all universities. The terms of the provision are that "Election rules must be consistent with sound and democratic electoral practices, procedures and methods of voting".
It will be the responsibility of university governing bodies to ensure that any rules made in this area comply with this principle.
The exemption for election procedures in the rule-making power of each Act will be removed by this bill.
Specific amendment of three university Acts
The bill also amends three university Acts—the University of Wollongong Act, the University of Newcastle Act and the Macquarie University Act—in specific ways concerned with updating administrative arrangements and correcting anomalies.
University of Wollongong Act: The specific additional amendments to the University of Wollongong Act remove references to "convocation", which is a redundant concept in the university's Act and governance structure, and allow the vice-chancellor to sub-delegate functions delegated to the vice-chancellor by the University Council, when authorised to do so by the council.
University of Newcastle Act: The bill will correct an anomaly in the University of Newcastle Act that means the President of the Academic Senate elected by the university's academic staff cannot actually become a member of the Academic Senate unless the University Council appoints them. The bill provides that the president will automatically be a member and the chair of the Academic Senate. It will also allow the vice-chancellor to sub-delegate functions delegated to the vice-chancellor by the University Council, when authorised to do so by the council.
Macquarie University Act: One inaccurate cross-reference in the Act is corrected by the minor amendment proposed in the bill.
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Accountabilities
While this bill will remove the regulatory requirements on universities that I have outlined, it is important to maintain appropriate accountabilities that recognise the public investment and the State's economic and social interest in its universities.
Our universities are State institutions of long standing that contribute a great deal to our lives in educational, economic, social and cultural terms.
Alongside the regulatory reforms contained in this bill, public accountability arrangements will remain in place through the annual university audits and related requirements under the Public Finance and Audit Act, 1983.
Under the Annual Reports (Statutory Bodies) Act 1984, universities are also required to submit annual reports to the Minister by the end of April each year for tabling in Parliament. The reports are public documents after tabling in Parliament and must include the audited financial statements of each institution and its controlled entities.
Importantly, universities also report to the Commonwealth Government and are subject to a range of accountability requirements from the Commonwealth relating to public funding and national higher education priorities.
Conclusion
The changes proposed by this bill will enable our universities to function more effectively in commercial environments as the significant statutory corporations they manifestly are.
As a result of these amendments, universities will have more flexibility and freedom in dealing with other parties to support their key missions focused on teaching, scholarship, research and community engagement.
The flexibility granted to universities by these changes is not without responsibility or appropriate checks and balances.
Important levels of oversight and accountability remain.
I commend the bill to the House.
The Hon. STEVE WHAN [8.03 p.m.]: The Opposition will not be opposing the Universities Legislation Amendment (Regulatory Reform) Bill 2014. The bill makes a number of reasonably sensible changes to regulations of the State governing universities. Deregulation and regulatory reform of universities is a topical subject in Australia at the moment. Some proposals for deregulation of universities are certainly less sensible than those in this bill. These proposals remove the requirement for the Governor, on the recommendation of the Treasurer, to approve borrowings by the university; remove the requirement for the Minister for Education, with the concurrence of the Treasurer, to approve university investment powers; and specifically authorise the university to generate revenue for the purpose of funding the promotion of its object and the carrying out of its principal functions.
In addition, these proposals remove the requirement for the Treasurer, on the recommendation of the Minister for Education, to approve fund managers; remove the requirement for the Minister for Education to approve the sale, encumbrance or lease for more than 21 years of university land, and replace it with a requirement for such approval to be obtained if the State granted, transferred or sold such land at less than market value; allow, subject to the approval of the Minister for Education, universities to lease land vested in the Crown for more than 21 years; and allow the university to delegate to the governing body the power to make rules concerning procedures for elections to that body, instead of them being prescribed by by-laws.
We know that in New South Wales and in other States there has been quite a long history of involvement with universities, and that at one stage New South Wales governments had a much greater role in universities in New South Wales. Over time, many of those functions have been rolled back. The Federal Government obviously now is the primary regulator and funder of universities in Australia, and it is sensible that the State's role and its regulations and laws reflect effectively the fairly minimal role that States now have in universities. When I first came to Parliament the State Government directly appointed representatives to the boards of universities. That was rolled back, along with a number of other involvements with universities in New South Wales. So this bill makes some reasonably sensible regulatory reforms that will free up some of the requirements on universities, and sensibly give them more power over their own financial transactions particularly.
But I have to say that these regulatory reforms are some of the only regulatory reforms on higher education which we are seeing at the moment which are sensible and helpful to the people of New South Wales and the people of Australia. At the Federal level we are seeing an attack on universities which is an appalling blow to those people right around New South Wales, particularly people in country and regional areas, who aspire to getting a tertiary education. At the national level we see proposals from the Federal Government for 13 August 2014 LEGISLATIVE COUNCIL 30461
regulatory reform which involves deregulating fees for university undergraduate places and opening the door to degrees which would cost anything up to $100,000. That is an appalling barrier to education for people in Australia, particularly people who are not cash rich, many of whom are in country New South Wales.
We are also seeing from the Federal Government proposals to change regulation of Higher Education Contribution Scheme [HECS] debts which would see those debts, rather than having a real interest rate which kept the debt level up with inflation, having an interest rate which would mean that people who were not able to pay off their debts quickly would see those debts growing at real levels over time. Again, this would cause a massive disincentive to families who want to send their children off to receive a tertiary education. That is particularly so for people in regional New South Wales, where often it is a far more expensive business to send their kids off, find accommodation for them and pay the various fees that go with that education. It is disgraceful that we see the prospect of elitism returning to our tertiary sector. Labor, of course, has a proud history of making tertiary education available to the people of Australia, with the Whitlam Government's moves to make tertiary education free, and with moves by the Hawke and Keating governments to broaden—
The Hon. Catherine Cusack: Point of order: I have been scouring the short and long titles of the bill and do not see any mention of the Whitlam Government. I understand that the member is allowed some latitude in the debate, but at this point he has not even begun to refer to the bill, which clearly relates to State legislation regulating universities.
The Hon. STEVE WHAN: To the point of order: The long title of the bill states:
An Act to amend various Acts establishing universities with respect to government regulation of the financial management, certain land dealings and governing body election procedures of the universities; and for other purposes.
That gives scope to talk about tertiary education and universities fairly broadly. I ask for the latitude normally given to a debate of this type.
DEPUTY-PRESIDENT (The Hon. Trevor Khan): Order! We are only 6¼ minutes into the member's time. At this stage the member is being generally relevant, although stretching the friendship somewhat. The member may proceed.
The Hon. STEVE WHAN: Placing universities in New South Wales is critical for our State's future. I certainly hope that all members would like our State and country to retain its position as having one of the world's highest standards of living and tertiary education is an absolute key of access by the Australian population to achieve that. Over past decades access to tertiary education in Australia has expanded in a positive manner, mostly in regional New South Wales with fantastic institutions being developed to provide better access to tertiary education and, importantly, to provide training for local people so that communities can retain those skills. That positive development commenced in the 1970s when colleges of advanced education were established and later turned into universities with deregulation and other changes during the 1980s. That gave us fantastic universities such as Charles Sturt, New England and Canberra, which, of course, services much of south-eastern New South Wales with many courses. Great opportunities occurred and during the 1980s and 1990s the number of available tertiary places for people to access expanded massively.
The Higher Education Contribution Scheme was introduced but, unfortunately, the Abbott Federal Government proposes changing it so that those debts become a disincentive for people to undertake a university education. I speak with some degree of self-interest as both my children currently live away at universities—one at the University of Newcastle and one in Melbourne; it certainly brings home the costs of children being away from home to undertake study. One thinks carefully about how people in rural areas do this. While many may have assets, at times they find they are fairly short on cash flow and arranging for their children to access university can be quite difficult. It will become much more difficult for them if university degrees cost $60,000 or $70,000, funding for undergraduate places is reduced by the Federal Government and interest rates that now see real growth start to disadvantage people from lower income backgrounds.
The Hon. Catherine Cusack: Point of order: The member is yet to refer to the bill. I ask for some guidance as to how long this latitude can continue.
The Hon. Lynda Voltz: To the point of order: The member is referring to the long title of the bill, which he read previously when the last point of order was taken. It is impossible to talk about the overview of that long title without referring to funding and the role of universities. The member is within the scope of the bill. 30462 LEGISLATIVE COUNCIL 13 August 2014
The Hon. Catherine Cusack: To the point of order: The long title of the bill refers to New South Wales legislation. It is too broad to say that would encompass the Federal budget. I find that claim by the Opposition somewhat ludicrous.
The Hon. Lynda Voltz: Further to the point of order: The overview of the bill refers specifically to university funding. Talking about university funding is specifically what this bill is all about. In fact, the bill refers to the removal of university investment powers, loans and a whole range of funding. It is quite within the long title of the bill for the member to address.
DEPUTY-PRESIDENT (The Hon. Trevor Khan): Order! There has been a wide-ranging discussion on the point of order. I refer members to the ruling of former President Primrose of 20 October 2009:
The contribution of members must be relevant to the question before the House. However, by tradition debate in this House may be broad ranging.
I accept that debate will be broad ranging and that this debate has now proceeded for 10 minutes. On this occasion I will not uphold the point of order. However, I certainly encourage the member to have due regard to the long title of the bill at this stage.
The Hon. STEVE WHAN: For the benefit of the Parliamentary Secretary, I went through the objects of this bill at the commencement of my contribution and talked about the difference between sensible regulatory reform and regulatory reform that will impact negatively on people in country and regional New South Wales. In illustrating that, it is important to note the actions of the Federal Coalition Government, which certainly will make access to tertiary education difficult and therefore put in jeopardy the future of our country and our place in the world as suppliers of a highly skilled workforce. It is an important broad question because if we want Australia to compete with the rest of the world and retain high standards of living for its people, universities must compete not on the basis of a contest for lower wages but on the basis of being highly skilled. That is what tertiary education and, indeed, further education is all about. Another example of bad deregulation and regulation changes is what this State Government is doing with TAFE, but I recognise that that is outside the long title of the bill and will refrain from going further at this stage.
The Hon. Catherine Cusack: You are focusing on it, not restraining from it.
The Hon. STEVE WHAN: I acknowledge the interjection that I should be focusing on it and not restraining from it, and shall return to that later in my contribution at the invitation of the Parliamentary Secretary. To conclude my point on the Federal changes proposed to regulation of universities, the Liberal plan is for Australian universities to become a United States-style system with greater inequality, higher fees and bigger debts for students. I repeat the message of Labor's Federal leader, Bill Shorten, who has said consistently, "A degree should not be a debt sentence." No-one can deny that the Abbott Government's changes will make life more difficult for regional students heading off to university.
Everyone in this place should be concerned about that. Doubling and tripling the cost of degrees will force young Australians to choose between their university degree and their debt. It is a real choice. If a family or student is looking at the size of the debt—remember that that debt, which, if the Federal Government has its way, will grow over time—and then looks to the future and whether they will be able to borrow money to buy a house or establish a business, they certainly will find this a disincentive. A dream of undertaking a university education, something I believe many people want for their children, will be pushed beyond their reach. It is not something that Labor can agree to.
DEPUTY-PRESIDENT (The Hon. Trevor Khan): Order! I advise the member that I am now looking closely at the long title of the bill.
The Hon. STEVE WHAN: The point is clear about good deregulation and bad deregulation that would disadvantage people. I am pleased to say that, in general, the bill seems to be sensible deregulation in that it continues to acknowledge that the State Government no longer plays a role in the regulation of universities. It is therefore sensible for the State Government to move out of that space, where practicable, so that it does not cause a disadvantage to the universities or the people of New South Wales. It does not mean that it should move away from being involved in universities in the future.
The Victorian Labor Government, during its time in office, introduced an impressive plan for regional Victoria which included substantial State investment in regional universities for accommodation. The objective 13 August 2014 LEGISLATIVE COUNCIL 30463
was to remove the disincentive experienced by many parents who want to send their children to university, which is the availability and affordability of university accommodation. The New South Wales Government would probably not be able to spend a huge amount of money in this area but in the longer term this issue should be considered in a targeted way, such as implementing measures to ensure that regional universities are an attractive option for people who may not be able to afford higher accommodation costs. A strategy to attract overseas students to regional universities could be implemented to boost revenue for the university or to enhance the contact between regional New South Wales and potential trading partners in Asia.
It is reasonable for the State Government to be involved in objectives of that kind. It is also reasonable for the State Government to be involved in attempts by Charles Sturt University to add a medical school, which is a laudable objective with which many people in this place would agree. The State Government should not step away from an involvement in advocating and lobbying for financial assistance where applicable circumstances occur. There are many issues surrounding tertiary education that should engage our planning for the future but perhaps approval for the university to borrow is not one. In that sense, this is reasonable legislation. At the invitation of the Parliamentary Secretary, I will deal briefly with the appalling examples of what this Government is doing with TAFE facilities in New South Wales.
The Hon. Dr Peter Phelps: Point of order: The member has now strayed a long way from the title of the bill. This bill refers specifically to universities entrusted by the various universities Acts under the State Government auspices. To start talking about TAFE facilities is completely ultra vires of the bill before us.
The Hon. STEVE WHAN: To the point of order: I was responding to an interjection from the Parliamentary Secretary, who is present in the Chamber, who introduced TAFE into the leave of this debate. I seek to continue that discussion.
DEPUTY-PRESIDENT (The Hon. Trevor Khan): Order! Members are extended a great degree of latitude during the second reading debate. However, the majority of a member's speech should address the bill before the House. I refer to a ruling of former President Primrose on 22 October 2009 in which he stated:
Although by tradition debates in this House may be wideranging, because the bill before the Chair has in its title the words—
and this is coincidental with the current bill—
—education, school and attendance does not mean that members are free to range over anything to do with education, school and attendance.
In the circumstances, as the Hon. Steve Whan has spoken for almost 20 minutes I uphold the point of order and ask him to direct his attention to the bill before the House. His comments have been wideranging up to this point.
The Hon. STEVE WHAN: I will refrain from discussing that topic. At another time I will be able to talk about the appalling proposals being put forward for TAFEs, which will see the closure of these facilities in coming years in places such as Cooma.
The Hon. Dr Peter Phelps: Point of order: The member is deliberately flouting your ruling. I ask that he be called to order.
DEPUTY-PRESIDENT (The Hon. Trevor Khan): Order! The member will not continue to stray from the leave of the bill.
The Hon. STEVE WHAN: As I said at the start, the Opposition does not oppose the bill. The Greens have amendments and at the Committee stage I will respond on behalf of the Opposition to those amendments.
The Hon. Catherine Cusack: Do you promise to speak about the amendments?
DEPUTY-PRESIDENT (The Hon. Trevor Khan): Order! Interjections are disorderly at all times, as is responding to them.
The Hon. STEVE WHAN: I was attempting to say that The Greens have amendments. At the appropriate time I will state the Opposition's position on those amendments. 30464 LEGISLATIVE COUNCIL 13 August 2014
Dr JOHN KAYE [8.25 p.m.]: On behalf The Greens I address the Universities Legislation Amendment (Regulatory Reforms) Bill 2014.
The Hon. John Ajaka: That would be so refreshing after the last speaker.
Dr JOHN KAYE: I am not sure you will think that by the time I am finished. On The Greens analysis, the legislation deregulates a number of functions that relate to universities borrowing money, their investment of funds, and any form of new revenue generation, and any resolution to determine, amend or replace guidelines with respect to the commercial activities of universities, the engagement of fund managers, the sale, encumbrance or lease for more than 21 years of university land, and the leasing of land vested in the Crown under the university's control and management for more than 21 years. Until now, if a university wanted to make a change within those seven functions, it was required to do so by gaining the permission of the Minister and, in some cases, the concurrence of the Treasurer. The O'Farrell-Baird Government perceived that permission and concurrence to involve unnecessary red tape. The bill seeks to remove the requirement of universities to seek that permission so that it creates a more financially autonomous university.
I have misgivings about the removal of that requirement. Although some universities do an excellent job of managing themselves in the best interests of their students and the communities they serve, others are being managed like large multinational corporations. The Greens and I are not convinced that it is in best interests of New South Wales to have universities managed that way. Nonetheless, The Greens appreciate that there is an administrative cost associated with these regulated functions and also appreciate that that imposes a cost on universities, which is money that could otherwise be spent on educational, research and scholarly functions. It imposes a cost on the Department of Education and Communities and it imposes a cost on the Minister.
The question is whether that cost is justified by the benefit of the oversight. I suspect we will only be able to tell once we have gone down this path. For that reason, The Greens will move amendments to the legislation that will require universities to report to the Minister whenever such a deregulated function is exercised without the approval of the Minister or the concurrence of the Treasurer. The Minister will then collate those reports and table them once a year in Parliament. That would be far less onerous on universities, and particularly on the department and ministry, than the current requirement of seeking permission. It is simply a reporting function and would not be particularly onerous. On the contrary, it would be a sensible check and balance. For example, a university would report back to its governing body to be included in the annual report. It would give this Chamber a sunset period of five years in which to see how it works.
I am concerned that deregulation may see some universities become even more corporate than they have been in the past. The Greens do not want universities to become more like businesses and less like public service institutions. As there are 10 universities in New South Wales, a single change in principle will require 10 individual amendments to be made to the legislation. The amendments proposed by The Greens will give the Parliament an opportunity to assess the deregulated functions and their long-term consequences. Under this bill a university also will be empowered to delegate to its governing body the power to make rules concerning procedures for elections to that body instead of them being prescribed by the by-laws. As I understand it—no doubt I will be corrected if I am wrong—by-laws are instruments of the Minister whereas the delegated power goes directly to the university governing body.
Most universities will behave responsibly in implementing the power to determine how elections are held. However, we are concerned that some vice-chancellors might see this as an opportunity to increase his or her power and influence over a university. Some universities may also seek to reduce the size of the college and increase the qualifications for election of the various constituencies who make up the governing body. In 2011 this Parliament changed the number of different kinds of representatives required to be on governing bodies, but when we did that we did not create protections so that each would be elected. One can foresee a situation where a vice-chancellor who has a particularly poisonous relationship with his or her staff may choose to restrict the qualifications of the people voting. For example, they may say a person can only vote in such an election if he or she has been a staff member for more than 20 years, which would create a much older and conservative voting constituency for that position.
A vice-chancellor might even choose to appoint individual representatives. For example, I heard one vice-chancellor say he would prefer to appoint alumni representatives rather than alumni representatives being elected. The Greens are concerned for three reasons: it violates the fundamental principles of democracy; it would sever the university from its connection to its alumni; and it would increase opportunities for a 13 August 2014 LEGISLATIVE COUNCIL 30465
power-seeking vice-chancellor to manipulate the system to his or her own benefit. But the Greens do not make that allegation against all vice-chancellors. Indeed, the vast majority of them behave in a responsible and highly democratic fashion. However, we have to write laws against the worst case scenario. In this State we have had some chancellors and vice-chancellors who were not necessarily dedicated to the principles of democracy and, accordingly, The Greens will be moving a second amendment.
This amendment will provide that anyone who is qualified for election may stand for election, anyone entitled to vote for a category of member has a right to vote for that category of member, and all votes are of equal value. We contend that is a simple and accurate statement of what constitutes democracy in a university election. It may well be argued that the amendment is unnecessary because those powers already exist. However, I have looked through a number of university Acts and could not find specifically those protections for democratic elections. Indeed, it would be unwise for this Parliament to pass off the capacity to make rules about those elections without enshrining into this legislation the "one person, one vote" and the right to participate. We will have more to say about this during the Committee stage.
The Greens have some concerns in principle about this bill. I note the comments of the Hon. Steve Whan about good deregulation and bad deregulation. The Greens enthusiastically have no disagreement with his analysis of the Federal situation. The Abbott Government's deregulation of university fees and numbers will have an appalling impact on people, particularly those from low socio-economic backgrounds. With the indulgence of the House, I was one of the first students to enjoy a free university education. When I attended the University of Melbourne the Law School had only one student who came from a public school. Because of the culture and fee barriers of that university it was a class-based institution. I am pleased to report that by the time I left—and I pay tribute to former Prime Minister Gough Whitlam and his education Ministers, in particular Kim Beazley Senior—it had changed. Free university education massively increased access and participation for people from a diverse range of backgrounds.
Mr Scot MacDonald: That is not what I have read.
Dr JOHN KAYE: I note the interjection of Mr Scot MacDonald. I invite him to read some of the material issued in 1996 by the Federal education department—in those days called the Department of Employment, Education, Training and Youth Affairs [DEETYA]—and then education and training Minister Kemp—
The Hon. Dr Peter Phelps: Point of order: I once again draw the Deputy-President's attention to the content of the member's speech and its relevance to the bill before the House. Whilst a wideranging overview of the history of free education in Australia may be interesting from a general historical point of view, it is of no relevance to this bill.
Dr JOHN KAYE: To the point of order: Unfortunately the Government Whip did not wait until I completed my sentence, which is understandable because the sentence was very long and contained a number of parenthetic insertions. I will summarise my sentence. It is critically important that any deregulation of universities does not discriminate against people from low socio-economic backgrounds. Indeed, such deregulation should not have unintended consequences which detract from the mission of the university. That takes us directly back to the matter before the House.
DEPUTY-PRESIDENT (The Hon. Trevor Khan): Order! There is no point of order. The member will desist from responding to interjections from Government members.
Dr JOHN KAYE: I appreciate your ruling, Mr Deputy-President, and I will endeavour to the greatest of my abilities to conform to it. I am saying that sometimes deregulation has consequences. I have pointed to the Federal deregulation and illustrated the ways in which fees can have huge impacts on university participation rates. To the point directly before the House tonight, it is critically important that deregulation is undertaken cautiously and carefully if it is to be done at all. That is why we are asking members to agree with us to require universities to at least report back.
We are not trying to restrict their exercise of their deregulated functions but we are seeking to make sure that this House knows how they are exercised. We are not seeking to stop universities from exercising their right as it would be under the delegation of authority to the governing body to determine the rules under which elections are held, but we seek to put in place a principle of one person, one vote. It is simply a protective principle to secure the right of everybody to participate and secure the connection between universities and their governing bodies. It will also ensure that vice-chancellors are held in check to some extent. 30466 LEGISLATIVE COUNCIL 13 August 2014
I fear this bill represents a further step towards the corporate university. It will be a step away from the university that serves the community and a step towards the university that is run for management prerogative. The Greens have grave concerns that this legislation may be yet another step towards running universities as businesses. We have already mentioned the Federal change, which will be a big step towards that outcome. I do not believe for one minute that any of our amendments are unnecessarily burdensome on universities in the case of reporting requirements. Nor do I believe that the first set of amendments is otiose in terms of the principle of one person, one vote. The Greens will not be opposing this legislation but we will be concerned if it is not amended along the lines that we have suggested.
The Hon. PAUL GREEN [8.42 p.m.]: At the heart of the Universities Legislation Amendment (Regulatory Reforms) Bill 2014 is the cutting of more red tape and the reformation of outdated regulations governing the financial management of public universities. The bill will allow for important reforms which will let university governing bodies approve their own commercial guidelines within existing frameworks and manage their financial and commercial activities as self-reliant institutions.
I understand that the bill is based on recommendations from a review of State university regulation by Ms Gabrielle Upton, MP, who was the then Parliamentary Secretary for Tertiary Education and Skills. I take this opportunity to congratulate the Hon. Gabrielle Upton on her recent appointment to the portfolio of Family and Community Services. Minister Piccoli initiated the review following a request by the New South Wales Vice-Chancellors Committee and I understand that universities have been consulted about the changes. In particular, I understand these amendments follow a review of State university regulation and consultation with universities led by the Vice-Chancellors Committee.
This bill follows a previous bill when the Government introduced the Universities Governing Bodies Act 2011, which commenced a process of updating legislation governing universities. This bill continues that process by reducing the amount of regulation regarding financial management, land dealings and governing body election procedures. The object of this bill is to amend various Acts establishing universities, known as the University Acts, and to remove certain regulatory requirements relating to financial management, land dealings and governing body election procedures of the universities and to put beyond doubt the capacity of the universities to generate revenue to fund the objects and principal functions of the university. In relation to each university the bill states:
(a) the requirement for the Governor on the recommendation of the Treasurer to approve borrowings by the university is removed, and
(b) the requirement for the Minister for Education with the concurrence of the Treasurer to approve university investment powers is removed, and
(c) the university is specifically authorised to generate revenue for the purpose of funding the promotion of its object and the carrying out of its principal functions, and
(d) the requirement for the Treasurer on the recommendation of the Minister for Education to approve fund managers is removed, and
(e) the requirement for the Minister for Education on the advice of the Treasurer to approve guidelines for commercial activities carried on by the university is removed, and
(f) the requirement for the Minister for Education to approve the sale, encumbrance or lease for more than 21 years of university land is removed and is replaced with a requirement for such approval where the land concerned was granted, transferred or sold at nominal or less than market value to the university by the State or is the lease of any land acquired from the State for a term of more than 21 years, and
(g) the limitation preventing the university from leasing certain land vested in the Crown which is under the university's control and management for more than 21 years is removed and replaced with a requirement permitting leases for more than 21 years with the approval of the Minister for Education, and
(h) the university is empowered to delegate to the governing body of the university the power to make rules concerning procedures for elections to that body instead of them being prescribed by the by-laws.
The bill also makes a number of further consequential amendments. The value of universities to the New South Wales economy cannot be understated. In 2008 some 333,000 persons were enrolled in universities in New South Wales. Of these, 77,000, which is 23 per cent or almost one-quarter, were overseas students. International education activity contributed $16.3 billion in export income to the Australian economy in 2010-11.
On a side note, many educational institutions rely on the income from full fee paying international students to assist in the provision of quality education to all students both international and domestic. As 13 August 2014 LEGISLATIVE COUNCIL 30467
custodians of the New South Wales economy and legislators we should do all that we can to streamline processes for business so that the standard of living can be lifted for our citizens. At the moment universities need all the help they can get—especially in the current global climate. I note that in the Australian on 10 May 2014 Greg Sheridan made comments to this effect:
We assume that Asian economic growth will be a never-ending bonanza for us. In some ways, it will. But we will also face intense competition from Asia, especially in services.
Already our universities, rendered less competitive by the high dollar, find they are not only competing for Asian students with European and North American universities, but with ever-better Asian universities.
Melbourne and Sydney universities needn't worry too much about Harvard or Oxford; they are in a different category. But the National University of Singapore, or the University of Hong Kong are now in the same category as the best Australian universities.
They work in English and are cheaper. We will not compete well in Asia, or be an attractive destination for Asian investment, if we are a high-cost, high-tax, high-regulation country along the European lines that we have been heading for during the past decade.
The forthcoming Abbott budget is an attempt to reject the European model and find something more sustainable.
This bill is good economic policy. The Christian Democratic Party stands firmly behind our world-class higher education system in New South Wales and we are here to do our part to ensure that our universities thrive and remain world class. The Christian Democratic Party commends the bill to the House.
The Hon. ERNEST WONG [8.49 p.m.]: I join my colleagues in contributing to debate on the Universities Legislation Amendment (Regulatory Reforms) Bill 2014. We do so because it supports the rights of our universities to support themselves. Labor reached this position after consultation with universities and seeing their support of this bill. The purpose of the bill is to amend various Acts that regulate the governance of universities and remove red tape on their financial management, administration and commercial dealings. Our universities have been caught between a rock and a hard place. On the one hand, they are under increasing financial pressure to deliver high-quality education and to pursue commercial revenue streams to support that delivery and, on the other hand, they are artificially constrained by various antiquated governance and trading restrictions. This bill aims to put beyond doubt the capacity of universities to generate revenue to fund their objects and principal functions.
The provisions of the bill include amendments in regard to borrowings by a university, investment by a university, generating revenue, fund management, real property dealings and other ancillary matters. Those are matters of great importance to the Sydney community—indeed to all New South Wales communities. After all, there are now more than 1.2 million students enrolled at Australia's 39 universities. Around 880,000 of these are domestic students and more than 330,000 are international students. University education is now a major contributor to New South Wales' export economy and a major starting point for building the technological capital with which New South Wales engages in the commercial world. Quite rightly, the Government likes to point to the blue chip attraction of New South Wales to global companies. Quite rightly, the Government promotes the intellectual and knowledge capital of our diverse and educated New South Wales communities. These things are indeed assets we should be proud of and, if I may say so, they are due in no small measure to the progressive foresight of successive Labor Federal governments.
But while universities are still highly specialised in education, they are no longer solely specialised in education. They have developed a diverse range of successful services in consulting, management, engineering, research and marketing—indeed, in almost every commercial discipline—which they successfully trade to both boost their financial success and those of the businesses and communities they service. In this sense, our universities are not just educational or cultural focuses of our communities and regions. They are commercial centres that are generating significant exchanges within local and regional economies. The provisions in this bill will only enhance that by supporting our universities to engage with small and medium business operators to develop and enhance their own businesses. This bill will unshackle universities to allow them to operate commercially but, I emphasise, to do so in support of their primary educational purpose.
I want to emphasise that the initiatives we discuss today have a very different flavour from those announced by the Abbott Government in the recent budget. It is interesting that both in this place and in Canberra the word "deregulation" is the key term. Both this House and the Federal education Minister argue that the changes they are proposing are about modernising and freeing up our university systems. But the difference in intention and effect is a great one. The deregulation that this House proposes is a genuine attempt at 30468 LEGISLATIVE COUNCIL 13 August 2014
supporting our universities to fund themselves as providers of education. Our universities want to teach—that is what they live for—and they want this to remain accessible to the widest range of students. Therefore, they are embracing commercial initiatives to avoid the need for exclusionary fee levels, among other benefits. That is what this House aims for. That is the Government's aim with this bill and that is why Labor supports it.
The contrast could not be greater with the Abbott Government proposal, which is to simply deregulate fees and usher in the age of the six-figure degree while offering none of the constructive support that we see in these initiatives. Indeed, the entire proposal seems completely unconsidered. Even Mr Abbott conceded that asking students to start a six-year degree when they have no knowledge of what the fees will be along the way is an unfair and, frankly, a completely uncommercial prospect. Like Mr Abbott, I benefited from a university education that was properly supported by the government of the day as an investment in Australia's economic future. Having seen the reward of that educational lift, I can only wish it to be sustained for the next generation of New South Wales citizens. Mr Abbott and Mr Pyne seem to want to close the door behind them.
The approach of this Government is a much more balanced and positive one. It works with the universities to support them and in turn to support the prospects of young New South Wales students who wish to build a better start to their life and career. This is something that I am passionate about. It is something that Labor is passionate about. Of course, Labor will always propose more sensible amendments. My colleague the Hon. Steve Whan will move amendments that will make this bill more adaptable for universities. Hence the Opposition will not oppose the bill.
The Hon. CATHERINE CUSACK (Parliamentary Secretary) [8.55 p.m.], on behalf of the Hon. John Ajaka, in reply: I thank all members who contributed to the debate. 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.
Dr JOHN KAYE [8.58 p.m.], by leave: I move The Greens amendment Nos 1, 4, 7, 10, 13, 16, 19, 22, 25 and 27 on sheet C2014-029B in globo:
No. 1 Page 4, schedule 1.1 [14], line 23. Insert "(including the principles that anyone qualified for election may stand for election, everyone entitled to vote for a category of member has a right to vote for that category of member and all votes are equal)" after "voting".
No. 4 Page 7, schedule 1.2 [13], line 2. Insert "(including the principles that anyone qualified for election may stand for election, everyone entitled to vote for a category of member has a right to vote for that category of member and all votes are equal)" after "voting".
No. 7 Page 9, schedule 1.3 [13], line 21. Insert "(including the principles that anyone qualified for election may stand for election, everyone entitled to vote for a category of member has a right to vote for that category of member and all votes are equal)" after "voting".
No. 10 Page 12, schedule 1.4 [13], line 4. Insert "(including the principles that anyone qualified for election may stand for election, everyone entitled to vote for a category of member has a right to vote for that category of member and all votes are equal)" after "voting".
No. 13 Page 14, schedule 1.5 [13], line 23. Insert "(including the principles that anyone qualified for election may stand for election, everyone entitled to vote for a category of member has a right to vote for that category of member and all votes are equal)" after "voting".
No. 16 Page 17, schedule 1.6 [16], line 8. Insert "(including the principles that anyone qualified for election may stand for election, everyone entitled to vote for a category of member has a right to vote for that category of member and all votes are equal)" after "voting".
No. 19 Page 19, schedule 1.7 [13], line 33. Insert "(including the principles that anyone qualified for election may stand for election, everyone entitled to vote for a category of member has a right to vote for that category of member and all votes are equal)" after "voting".
13 August 2014 LEGISLATIVE COUNCIL 30469
No. 22 Page 22, schedule 1.8 [14], line 13. Insert "(including the principles that anyone qualified for election may stand for election, everyone entitled to vote for a category of member has a right to vote for that category of member and all votes are equal)" after "voting".
No. 25 Page 24, schedule 1.9 [13], line 33. Insert "(including the principles that anyone qualified for election may stand for election, everyone entitled to vote for a category of member has a right to vote for that category of member and all votes are equal)" after "voting".
No. 27 Page 27, schedule 1.10 [17], line 28. Insert "(including the principles that anyone qualified for election may stand for election, everyone entitled to vote for a category of member has a right to vote for that category of member and all votes are equal)" after "voting".
The Committee will be pleased to note that I have not moved all of my amendments seriatim. As discussed in the second reading debate, the purpose of these amendments is to insert into the deregulation the right of university governing bodies to make their own rules with respect to elections, to insert a principle that anyone who is qualified for election may stand for election, that everyone entitled to vote for a category of members has a right to vote for that category of members, and all votes are of equal value. The purpose is to make sure that, in rewriting rules which previously were required to be agreed to by the Minister, no vice-chancellor can get away with disenfranchising any member of any particular electorate voting for representatives on the university council.
As I said, there are three reasons for enshrining that principle. The first is just a basic commitment to democracy. It ought to be that we have no shame about inserting into any Act that talks about any kind of election a one person, one vote principle for that election. Secondly, the act of voting for, for example, alumni, is part of the membership of those alumni of the university body, of the university family—likewise with general staff, and likewise with students. It is part of the innate connection between those constituent bodies of the university and the university itself. It makes universities much more than just corporations; it makes them large, scholarly institutions with a large and diverse body of membership that has that university's future at heart.
The third reason for doing this is simply to stop vice-chancellors aggregating control within their governing bodies. The vast majority of vice-chancellors would always seek to do the right thing. I have no question in my mind about that at all. There are many vice-chancellors who would shudder at the thought of reducing the democracy within their institution. However, we have to write laws that work for the most maligned, not the most benign. And in this particular case the most maligned would be those vice-chancellors who sought to change the voting system to secure their power over the governing body. Governing bodies have to act as a check and balance on the vice-chancellors. They have to be able to set the strategic direction of the university—certainly with the input of the vice-chancellors but not at the beck and call of the vice-chancellors.
Inserting this provision into each of the university Acts will secure a power balance between the vice-chancellor and the governing body that will make sure that the vice-chancellor does not become an autocrat; that the vice-chancellor does not seize control of the university. This is not about any implication of malign intent by the Minister or his office or the department. They are acting out of the best interests of universities. But this is about guarding against university vice-chancellors who will seek to use their power over the electoral system to enshrine their own position and enshrine their own capacity to direct the university council.
That is not how universities operate at their best; it is not in the best interests of universities; it is not in the best interests of the people of New South Wales. It is essential therefore that there be some statement of democracy. I will finish on this point. It might be said, "Oh, we don't need to do this. There is already security in the legislation for democratic election." It is true that in 2011 we passed amendments to university Acts which secured positions. But I could not find anywhere in the legislation—and I am prepared to be corrected—any legislative power that secures one person, one vote. I commend the 10 amendments to the Committee.
The Hon. CATHERINE CUSACK [9.04 p.m.]: The Government submits that the amendments moved by Dr John Kaye are superfluous and overkill. The bill already makes clear that rules for the election of staff, students and other members as required of a university governing body have to be "consistent with sound and democratic electoral practices, procedures and methods of voting". Each university Act, and the related by-laws working together, already provide that those who are qualified may vote and stand for election, and they make the necessary qualifications clear. They also imply clearly that all votes are equal.
I amplify that point by saying that the scenario painted by The Greens, in which a university vice-chancellor will suddenly seize control of a university and destroy democracy, is unreasonable because these 30470 LEGISLATIVE COUNCIL 13 August 2014
by-laws are not invented or changed by the stroke of a pen by the vice-chancellor. The by-laws that govern these matters are the responsibility of the governing council. I feel an unfair slur has been cast on our hardworking vice-chancellors. But I make the point that these voting rules are determined by the governing bodies. Taken in context, no other common-sense reading of these legislative sections is possible. Section 8E of the Charles Sturt University Act, dealing with elected staff and student members, is an example. It clearly sets out the key qualifications for election, and who can vote for the different candidates. I quote from the Act:
(2) Of the members elected under this section:
(a) at least one must be a member of the academic staff of the University elected by members of the academic staff, and
(b) at least one must be a member of the general staff of the University elected by members of the general staff, and
(c) at least one must be a student of the University who:
(i) is not employed on a full-time basis (or on such other basis as the by-laws may prescribe) as a member of the academic or general staff of the University, and
(ii) is elected by the students of the University.
The Government opposes the amendments.
The Hon. STEVE WHAN [9.07 p.m.]: The Opposition supports these amendments. The principles that The Greens are seeking to enshrine seem quite reasonable. I take some of the points that the Government has raised. Yes, it might be fair to say that The Greens are being a bit suspicious and perhaps are taking a negative view of what might happen. But as Dr John Kaye said, this place often makes rules for the very few people who do not do the right thing. In this case, enshrining this principle into the legislation seems reasonable and not unduly restrictive on the ways that universities operate. The Labor Party will support the amendments.
Dr JOHN KAYE [9.08 p.m.]: I thank members for their contributions. I thank the Opposition for its support. The Parliamentary Secretary quoted section 8E of the Charles Sturt University Act—and it will be a different number in the other university Acts, but will provide more or less the same thing across each of the 10 Acts. The Parliamentary Secretary said that The Greens' amendments are unnecessary because of section 8E. But 8E talks purely about the numbers. Members will recall that in 2011 we amended the university Acts. That was a fairly hard-fought battle. I am not sure whether Labor joined The Greens, but certainly we were concerned about the numbers. The battle was all about the numbers; there were not adequate numbers of students and not adequate numbers of staff on the board. However, nothing in that section talks about the method of election. The Parliamentary Secretary—I think it was a slip of the tongue—talked about by-laws being the by-laws of the university governing bodies. That is not true.
The by-laws under this bill would remain the property of the Minister. This bill empowers university governing bodies to make rules about elections and is more about specific rules. For example, the rules might include who gets mailed a ballot paper, how people can vote and which people can vote. Any reading of section 8E does not create a reason that one person has one value vote. It is all about what might or might not happen; it is all about numbers and how many representatives. Our amendment says that section 8E is fine but elections have to be held on the basis of fundamental democratic principles. The amendment is not about numbers because we had that debate in 2011. This amendment is about enshrining into legislation one person one vote. Everybody gets a vote; everybody in that category is entitled to vote. The Parliamentary Secretary correctly says that I am being suspicious. I spent 22 years in Australian universities and five years in universities in other countries.
The Hon. Rick Colless: What countries?
Dr JOHN KAYE: Those countries were America and to a lesser extent Scotland.
The Hon. Greg Pearce: Did you eventually pass?
Dr JOHN KAYE: I will acknowledge that interjection: it is the funniest thing the member has ever said, apart from when he was a Minister and was perpetually amusing—and I say that in the nicest possible way. I have good reason to be suspicious: we now are talking about institutions turning over multimillions of dollars. Human beings are human beings and these institutions employ tens of thousands of individuals and have multiples of tens of thousands of students. These large institutions need sensible rules of governance to keep them on the straight and narrow. 13 August 2014 LEGISLATIVE COUNCIL 30471
We write laws in this place not for the best of people but for the worst. If everybody was good and behaved the right way, there would be no need for most of what we do, but we have to take into account that some people will seek to exploit situations. For example, some universities in New South Wales have sought to do away with any election involving the alumni. Evidence was produced before a general purpose standing committee chaired by the Hon. Robyn Parker, who was then a member of the Legislative Council, inquiring into university governance that two university vice-chancellors said explicitly that they did not want to hold elections for the alumni, preferring instead to appoint them.
If that is their wish and they are given the rule power to do so, our grave concern is that they will do just that. As I said previously, that is not in the best interests of the university. It will sever the relationship between the alumni and the university and the good feedback from people who have been through the university system. It puts too much power in the hands of the vice-chancellor. A modern university requires the checks and balances of a diverse constituency electing people to their governing bodies. Otherwise they become narrowly focused institutions that forget their scholarly and public service missions. To that extent, The Greens believe that these 10 amendments, which are identical, are essential to protecting the democratic values of universities. I commend these amendments to the Committee.
Mr DAVID SHOEBRIDGE [9.13 p.m.]: I support the amendments moved by my colleague Dr John Kaye. The title "Dr John Kaye" should answer the Hon. Greg Pearce's earlier question. I note that the Government simply says that the amendment is not necessary: "Don't worry, the spirit of one person one vote and that great democratic spirit that informs the Government we certainly will protect. We'll protect these institutions from some kind of undemocratic gerrymander."
The Hon. Catherine Cusack: And rapacious vice-chancellors.
Mr DAVID SHOEBRIDGE: Or indeed from rapacious vice-chancellors. But of course this week this same Government seeks to dilute the very principle of one person one vote in local government. Indeed, it wants to give corporations multiple votes in local government elections. On one hand this Government says it supports the principle of one person one vote and says, "Don't you worry about it, nothing to be suspicious about here", yet on the other hand it would entitle property owners to have multiple votes across the State under the Local Government Act. If a person were a director of multiple corporations with multiple property holdings, he could have a hundred or more votes across New South Wales under this Government's wonderful vision of democracy in local government.
Mr Scot MacDonald: Hear, hear!
Mr DAVID SHOEBRIDGE: I note the "Hear, hear!" from Mr Scot MacDonald sitting at the back. When the Government says, "Don't you worry. Don't be suspicious. There's nothing to look at here and we don't need these amendments to protect genuine democracy within the university sector", I am deeply suspicious. I become more suspicious the more I hear the Government say, "Don't you worry, we believe this." This Government has a history of saying one thing one day and then saying another thing another day. In this Chamber the Government says that it supports universities and democracies—I do not doubt that the Parliamentary Secretary genuinely supports democracy within the higher education sector—but, of course, a large Right wing Cabinet controls this Government and it has little interest with these niceties of democracy. One day they say to the public, "We support democracy in the university sector" and we pass this bill, then on another day they will be perfectly happy to see democratic rights within universities removed. The Government has a history of this kind of backtracking tergiversation. To that extent I support this amendment.
The Hon. Dr PETER PHELPS [9.16 p.m.]: The member has done his usual complete absence of thorough research with a simple look at the by-laws of the University of Sydney as amended. I draw his attention to section 17, which deals with rolls. It states:
The returning officer must, for the purposes of elections, establish and maintain separate Rolls for each of the following categories:
It then goes through all the categories, including academic staff, non-academic staff, undergraduate students, postgraduate students and graduates. When one reads that in conjunction with section 35, which mandates that the returning officer must supply ballot papers to every person whose name appears on the roll, his assertions that there is no guarantee that people receive their democratic right to vote is completely destroyed. It is a good thing he never completed his law degree because a lawyer who cannot read a basic piece of legislation such as the University of Sydney by-laws does not deserve— 30472 LEGISLATIVE COUNCIL 13 August 2014
Dr John Kaye: Point of order: The Hon. Dr Peter Phelps has made a personal aspersion against me that I was doing a law degree. I make it clear to the Chamber that I have never commenced or completed a law degree in my life.
The Hon. Dr PETER PHELPS: I withdraw the assertion that he has ever studied a law degree. I refer him to section 35 (2) of the relevant by-laws, which contains the following passage:
The returning officer must—
not "might", not "has the option" and not "can be directed not to by the vice-chancellor"—
send the following to each voter on the relevant Roll …
Section 17 is a compulsion to keep an up-to-date roll for every available cohort of electors and section 35 mandates that ballot papers must be sent to every person of that cohort. This is an unnecessary amendment and the mere fact that it has come about is that the member opposite cannot read a basic set of university by-laws.
The Hon. CATHERINE CUSACK [9.19 p.m.]: I have a sense that within the spirit of the debate everyone has been transferred back to the university and it has become an student representative council [SRC] debate where students stand up and completely and utterly misrepresent the substance of the case before them. I thank the Hon. Dr Peter Phelps for pointing out the by-laws that specifically address the issues raised by The Greens. No vice-chancellor has the power that Dr John Kaye and Mr David Shoebridge are asserting exists in this bill. They will not be given that power by this bill. That is not what it does. The rules of these elections are set by the governing bodies; they are not set by the vice-chancellors. Everything The Greens have said is based on that false proposition. I urge more members to consider this reasonable proposal. I am not expecting to convince Dr John Kaye; I am trying to stop members of the Labor Party from making fools of themselves.
Dr JOHN KAYE [9.21 p.m.]: I address the rather interesting contribution by the Hon. Dr Peter Phelps. The problem is that the member read the by-laws but not the bill before the Committee. I direct the member to page 19 of the Universities Legislation Amendment (Regulatory Reforms) Bill 2014 which reads:
[13] Section 37 (1A)–(1C)
Insert after section 37 (1):
(1A) Despite subsection (1)—
I ask members to hold that thought. Subsection (1) of section 37 of the bill states, "The by-laws may empower any authority or officer to make rules...". The by-laws are empowered by section 37 (1). Despite the by-laws and the subsection this bill will insert a clause that states, "… only the Senate may be empowered to make rules...". The Hon. Dr Peter Phelps is entirely wrong in his interpretation of the bill. The election rules override the by-laws in this bill. The by-laws are no longer relevant to the election in as much as they are in conflict with the rules that are made by the governing body. It is clear that the Hon. Dr Peter Phelps has found a nice little issue but he has not read the whole bill in order to understand the powers that will be granted by this bill.
I will now address the Parliamentary Secretary's comments. In theory she is correct; it is the governing body and not the vice-chancellor that has the power. I invite the Parliamentary Secretary to have a close look at the history of what has happened to governing bodies around New South Wales and the way in which certain vice-chancellors have seized control of the governing bodies and run them to their own interest. That is precisely the difficulty we are facing today and that we are trying to avoid.
Question—That The Greens amendments Nos 1, 4, 7, 10, 13, 16, 19, 22, 25 and 27 [C2014-029B] be agreed to—put.
The Committee divided.
Ayes, 18
Ms Barham Mr Moselmane Mr Whan Mr Buckingham Mr Primrose Mr Wong Ms Cotsis Mr Searle Mr Donnelly Mr Secord Ms Fazio Mr Veitch Tellers, Mr Foley Ms Voltz Dr Faruqi Dr Kaye Ms Westwood Mr Shoebridge 13 August 2014 LEGISLATIVE COUNCIL 30473
Noes, 21
Mr Ajaka Mr Green Reverend Nile Mr Blair Mr Harwin Mrs Pavey Mr Borsak Mr Khan Mr Pearce Mr Brown Mr Lynn Mr Clarke Mr MacDonald Ms Cusack Mrs Maclaren-Jones Tellers, Ms Ficarra Mr Mason-Cox Mr Colless Mr Gay Mrs Mitchell Dr Phelps
Pair
Ms Sharpe Mr Gallacher
Question resolved in the negative.
The Greens amendments Nos 1, 4, 7, 10, 13, 16, 19, 22, 25 and 27 [C2014-029B] negatived.
Dr JOHN KAYE [9.30 p.m.], by leave: I move The Greens amendments Nos 2, 3, 5, 6, 8, 9, 11, 12, 14, 15, 17, 18, 20, 21, 23, 24, 26, 28 and 29 on sheet C2014-029B in globo:
No. 2 Page 4, schedule 1.1. Insert after line 36:
[17] Schedule 4, heading
Omit "and transitional". Insert instead ", transitional and other".
No. 3 Page 5, schedule 1.1 [18]. Insert after line 21:
52 Reports relating to financial management and land dealings
(1) As soon as practicable after the end of each year during the period of 5 years after the date of assent to the amending Act, the Council is to report to the Minister on each instance in which a deregulated function was exercised by the Council during the preceding year.
(2) The Minister is to prepare an annual report detailing all instances reported to the Minister for a year under subclause (1).
(3) The annual report is to be tabled in each House of Parliament within 6 months after the end of the year to which it relates.
(4) The Minister may amalgamate the annual report with, or present it together with, any report of a similar nature required by an Act to be given by the governing body of another university.
(5) In this clause:
deregulated function means the following:
(a) the borrowing of money,
(b) the investment of university funds,
(c) any new form of revenue generation,
(d) any resolution to determine, amend or replace guidelines with respect to University commercial activities,
(e) engagement of a fund manager,
(f) the sale, encumbrance or lease for more than 21 years of university land,
(g) the leasing of land vested in the Crown under the university's control and management for more than 21 years.
No. 5 Page 7, schedule 1.2. Insert after line 18:
[17] Schedule 3, heading
Omit "and transitional". Insert instead ", transitional and other".
30474 LEGISLATIVE COUNCIL 13 August 2014
No. 6 Page 7, schedule 1.2 [18]. Insert after line 39:
17 Reports relating to financial management and land dealings
(1) As soon as practicable after the end of each year during the period of 5 years after the date of assent to the Universities Legislation Amendment (Regulatory Reforms) Act 2014, the Council is to report to the Minister on each instance in which a deregulated function was exercised by the Council during the preceding year.
(2) The Minister is to prepare an annual report detailing all instances reported to the Minister for a year under subclause (1).
(3) The annual report is to be tabled in each House of Parliament within 6 months after the end of the year to which it relates.
(4) The Minister may amalgamate the annual report with, or present it together with, any report of a similar nature required by an Act to be given by the governing body of another university.
(5) In this clause:
deregulated function means the following:
(a) the borrowing of money,
(b) the investment of university funds,
(c) any new form of revenue generation,
(d) any resolution to determine, amend or replace guidelines with respect to University commercial activities,
(e) engagement of a fund manager,
(f) the sale, encumbrance or lease for more than 21 years of university land,
(g) the leasing of land vested in the Crown under the university's control and management for more than 21 years.
No. 8 Page 9, schedule 1.3. Insert after line 34:
[16] Schedule 3, heading
Omit "and transitional". Insert instead ", transitional and other".
No. 9 Page 10, schedule 1.3 [17]. Insert after line 21:
43 Reports relating to financial management and land dealings
(1) As soon as practicable after the end of each year during the period of 5 years after the date of assent to the amending Act, the Council is to report to the Minister on each instance in which a deregulated function was exercised by the Council during the preceding year.
(2) The Minister is to prepare an annual report detailing all instances reported to the Minister for a year under subclause (1).
(3) The annual report is to be tabled in each House of Parliament within 6 months after the end of the year to which it relates.
(4) The Minister may amalgamate the annual report with, or present it together with, any report of a similar nature required by an Act to be given by the governing body of another university.
(5) In this clause:
deregulated function means the following:
(a) the borrowing of money,
(b) the investment of university funds,
(c) any new form of revenue generation,
(d) any resolution to determine, amend or replace guidelines with respect to University commercial activities,
(e) engagement of a fund manager,
13 August 2014 LEGISLATIVE COUNCIL 30475
(f) the sale, encumbrance or lease for more than 21 years of university land,
(g) the leasing of land vested in the Crown under the university's control and management for more than 21 years.
No. 11 Page 12, schedule 1.4. Insert after line 17:
[16] Schedule 3, heading
Omit "and transitional". Insert instead ", transitional and other".
No. 12 Page 13, schedule 1.4 [17]. Insert after line 3:
47 Reports relating to financial management and land dealings
(1) As soon as practicable after the end of each year during the period of 5 years after the date of assent to the amending Act, the Council is to report to the Minister on each instance in which a deregulated function was exercised by the Council during the preceding year.
(2) The Minister is to prepare an annual report detailing all instances reported to the Minister for a year under subclause (1).
(3) The annual report is to be tabled in each House of Parliament within 6 months after the end of the year to which it relates.
(4) The Minister may amalgamate the annual report with, or present it together with, any report of a similar nature required by an Act to be given by the governing body of another university.
(5) In this clause:
deregulated function means the following:
(a) the borrowing of money,
(b) the investment of university funds,
(c) any new form of revenue generation,
(d) any resolution to determine, amend or replace guidelines with respect to University commercial activities,
(e) engagement of a fund manager,
(f) the sale, encumbrance or lease for more than 21 years of university land,
(g) the leasing of land vested in the Crown under the university's control and management for more than 21 years.
No. 14 Page 14, schedule 1.5. Insert after line 36:
[16] Schedule 3, heading
Omit "and transitional". Insert instead ", transitional and other".
No. 15 Page 15, schedule 1.5 [17]. Insert after line 17:
17 Reports relating to financial management and land dealings
(1) As soon as practicable after the end of each year during the period of 5 years after the date of assent to the Universities Legislation Amendment (Regulatory Reforms) Act 2014, the Council is to report to the Minister on each instance in which a deregulated function was exercised by the Council during the preceding year.
(2) The Minister is to prepare an annual report detailing all instances reported to the Minister for a year under subclause (1).
(3) The annual report is to be tabled in each House of Parliament within 6 months after the end of the year to which it relates.
(4) The Minister may amalgamate the annual report with, or present it together with, any report of a similar nature required by an Act to be given by the governing body of another university.
30476 LEGISLATIVE COUNCIL 13 August 2014
(5) In this clause:
deregulated function means the following:
(a) the borrowing of money,
(b) the investment of university funds,
(c) any new form of revenue generation,
(d) any resolution to determine, amend or replace guidelines with respect to University commercial activities,
(e) engagement of a fund manager,
(f) the sale, encumbrance or lease for more than 21 years of university land,
(g) the leasing of land vested in the Crown under the university's control and management for more than 21 years.
No. 17 Page 17, schedule 1.6. Insert after line 21:
[18] Schedule 3, heading
Omit "and transitional". Insert instead ", transitional and other".
No. 18 Page 18, schedule 1.6 [20]. Insert after line 9:
27 Reports relating to financial management and land dealings
(1) As soon as practicable after the end of each year during the period of 5 years after the date of assent to the amending Act, the Council is to report to the Minister on each instance in which a deregulated function was exercised by the Council during the preceding year.
(2) The Minister is to prepare an annual report detailing all instances reported to the Minister for a year under subclause (1).
(3) The annual report is to be tabled in each House of Parliament within 6 months after the end of the year to which it relates.
(4) The Minister may amalgamate the annual report with, or present it together with, any report of a similar nature required by an Act to be given by the governing body of another university.
(5) In this clause:
deregulated function means the following:
(a) the borrowing of money,
(b) the investment of university funds,
(c) any new form of revenue generation,
(d) any resolution to determine, amend or replace guidelines with respect to University commercial activities,
(e) engagement of a fund manager,
(f) the sale, encumbrance or lease for more than 21 years of university land,
(g) the leasing of land vested in the Crown under the university's control and management for more than 21 years.
No. 20 Page 20, schedule 1.7. Insert after line 8:
[16] Schedule 3, heading
Omit "and transitional". Insert instead ", transitional and other".
No. 21 Page 20, schedule 1.7 [17]. Insert after line 29:
18 Reports relating to financial management and land dealings
(1) As soon as practicable after the end of each year during the period of 5 years after the date of assent to the Universities Legislation Amendment (Regulatory Reforms) Act 2014, the Senate is to report to the Minister on each instance in which a deregulated function was exercised by the Senate during the preceding year.
13 August 2014 LEGISLATIVE COUNCIL 30477
(2) The Minister is to prepare an annual report detailing all instances reported to the Minister for a year under subclause (1).
(3) The annual report is to be tabled in each House of Parliament within 6 months after the end of the year to which it relates.
(4) The Minister may amalgamate the annual report with, or present it together with, any report of a similar nature required by an Act to be given by the governing body of another university.
(5) In this clause:
deregulated function means the following:
(a) the borrowing of money,
(b) the investment of university funds,
(c) any new form of revenue generation,
(d) any resolution to determine, amend or replace guidelines with respect to University commercial activities,
(e) engagement of a fund manager,
(f) the sale, encumbrance or lease for more than 21 years of university land,
(g) the leasing of land vested in the Crown under the university's control and management for more than 21 years.
No. 23 Page 22, schedule 1.8. Insert after line 26:
[17] Schedule 3, heading
Omit "and transitional". Insert instead ", transitional and other".
No. 24 Page 23, schedule 1.8 [18]. Insert after line 12:
26 Reports relating to financial management and land dealings
(1) As soon as practicable after the end of each year during the period of 5 years after the date of assent to the amending Act, the Council is to report to the Minister on each instance in which a deregulated function was exercised by the Council during the preceding year.
(2) The Minister is to prepare an annual report detailing all instances reported to the Minister for a year under subclause (1).
(3) The annual report is to be tabled in each House of Parliament within 6 months after the end of the year to which it relates.
(4) The Minister may amalgamate the annual report with, or present it together with, any report of a similar nature required by an Act to be given by the governing body of another university.
(5) In this clause:
deregulated function means the following:
(a) the borrowing of money,
(b) the investment of university funds,
(c) any new form of revenue generation,
(d) any resolution to determine, amend or replace guidelines with respect to University commercial activities,
(e) engagement of a fund manager,
(f) the sale, encumbrance or lease for more than 21 years of university land,
(g) the leasing of land vested in the Crown under the university's control and management for more than 21 years.
30478 LEGISLATIVE COUNCIL 13 August 2014
No. 26 Page 25, schedule 1.9 [17]. Insert after line 33:
36 Reports relating to financial management and land dealings
(1) As soon as practicable after the end of each year during the period of 5 years after the date of assent to the amending Act, the Board is to report to the Minister on each instance in which a deregulated function was exercised by the Board during the preceding year.
(2) The Minister is to prepare an annual report detailing all instances reported to the Minister for a year under subclause (1).
(3) The annual report is to be tabled in each House of Parliament within 6 months after the end of the year to which it relates.
(4) The Minister may amalgamate the annual report with, or present it together with, any report of a similar nature required by an Act to be given by the governing body of another university.
(5) In this clause:
deregulated function means the following:
(a) the borrowing of money,
(b) the investment of university funds,
(c) any new form of revenue generation,
(d) any resolution to determine, amend or replace guidelines with respect to University commercial activities,
(e) engagement of a fund manager,
(f) the sale, encumbrance or lease for more than 21 years of university land,
(g) the leasing of land vested in the Crown under the university's control and management for more than 21 years.
No. 28 Page 28, schedule 1.10. Insert after line 3:
[20] Schedule 3, heading
Omit "and transitional". Insert instead ", transitional and other".
No. 29 Page 28, schedule 1.10 [21]. Insert after line 28:
19 Reports relating to financial management and land dealings
(1) As soon as practicable after the end of each year during the period of 5 years after the date of assent to the Universities Legislation Amendment (Regulatory Reforms) Act 2014, the Council is to report to the Minister on each instance in which a deregulated function was exercised by the Council during the preceding year.
(2) The Minister is to prepare an annual report detailing all instances reported to the Minister for a year under subclause (1).
(3) The annual report is to be tabled in each House of Parliament within 6 months after the end of the year to which it relates.
(4) The Minister may amalgamate the annual report with, or present it together with, any report of a similar nature required by an Act to be given by the governing body of another university.
(5) In this clause:
deregulated function means the following:
(a) the borrowing of money,
(b) the investment of university funds,
(c) any new form of revenue generation,
(d) any resolution to determine, amend or replace guidelines with respect to University commercial activities,
(e) engagement of a fund manager,
13 August 2014 LEGISLATIVE COUNCIL 30479
(f) the sale, encumbrance or lease for more than 21 years of university land,
(g) the leasing of land vested in the Crown under the university's control and management for more than 21 years.
I discussed these matters at great length in my contribution to debate on the second reading. For five years universities will be required to report to the Minister each time they exercise a deregulated function. A deregulated function is one of the financial functions that is being deregulated by the legislation, including the borrowing of money of university funds, any new form of revenue generation, any change to the guidelines with respect to commercial activities, engagement of a new funds manager, the sale, encumbrance or lease of university land for more than 21 years, and the leasing of land that was vested in the Crown under the university's control or management for more than 21 years.
The CHAIR (The Hon. Jennifer Gardiner): Order! I call the Hon. Jeremy Buckingham to order for the first time.
Dr JOHN KAYE: If a university exercised one of those functions it could do so without the permission of the Minister but it would be required to report that function to the Minister. At the end of the year the reports prepared by the Minister will be amalgamated into an annual report, which will be tabled in Parliament. The purpose of this is to give members and the public knowledge of what has been deregulated. It will be possible to monitor the actions of universities for five years with respect to the functions that have been deregulated by this legislation. It is a relatively minor matter and not a huge red tape impost as has been suggested. It is simply a matter of reporting back on those functions so that the consequences of this substantial deregulation of universities can be monitored by this Government. I commend the amendments to the Committee.
The Hon. CATHERINE CUSACK [9.36 p.m.]: The Government opposes The Greens amendments. They are unnecessary because universities will continue to be subject to independent oversight of their financial matters, including an annual financial audit and they will also be subject to normal annual reporting requirements. The aim of the bill is to remove unnecessary regulation—not replace it with new requirements— so that our universities can function in a fully fledged way as statutory corporations in demanding commercial environments.
The Hon. STEVE WHAN [9.37 p.m.]: I mentioned in my contribution to debate on the second reading that, given that the New South Wales Government did not have a role in the funding of universities, it was reasonable that some of those controls on regulation be removed. These amendments seem unnecessary. As the Parliamentary Secretary said, universities will continue to be audited and required to report publicly to their relevant funding authorities such as the Federal Government. Labor does not support these amendments.
Question—That The Greens amendments Nos 2, 3, 5, 6, 8, 9, 11, 12, 14, 15, 17, 18, 20, 21, 23, 24, 26, 28 and 29 [C2014-029B] be agreed to—put and resolved in the negative.
The Greens amendments Nos 2, 3, 5, 6, 8, 9, 11, 12, 14, 15, 17, 18, 20, 21, 23, 24, 26, 28 and 29 [C2014-029B] negatived.
Schedule 1 agreed to.
Title agreed to.
Bill reported from Committee without amendment.
Adoption of Report
Motion by the Hon. Catherine Cusack, on behalf of the Hon. John Ajaka, agreed to:
That the report be adopted.
Report adopted. 30480 LEGISLATIVE COUNCIL 13 August 2014
Third Reading
Motion by the Hon. Catherine Cusack, on behalf of the Hon. John Ajaka, agreed to:
That this bill be now read a third time.
Bill read a third time and returned to the Legislative Assembly without amendment.
BUSINESS OF THE HOUSE
Postponement of Business
Government Business Orders of the Day Nos 5 to 7 postponed on motion by the Hon. Duncan Gay and set down as an order of the day for a later hour.
ROAD TRANSPORT AMENDMENT (MANDATORY ALCOHOL INTERLOCK PROGRAM) BILL 2014
Second Reading
The Hon. DUNCAN GAY (Minister for Roads and Freight, and Vice-President of the Executive Council) [9.41 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 main purpose of this bill is to improve road safety by introducing a mandatory alcohol interlock program for offenders convicted of repeat and serious drink-driving offences. The bill also enables additional licensing requirements to be applied to licence holders who repeatedly exceed their demerit point threshold and repeat drink-drive offenders. This legislation, which I will outline in detail, represents the next step in combating drink-driving and repeat traffic offenders in New South Wales, and has been developed following extensive road safety research and consultation with key agencies including the NSW Police Force, the Department of Police and Justice, and NSW Health.
The measures proposed today were outlined in the Government's 10-year road safety strategy, which was released in March 2013. They have the support of NRMA Motoring and Services, and are consistent with the spirit of the NRMA's 3 Point Plan to Tackle Bad Drivers. This bill proposes very significant changes to the way New South Wales addresses drink-driving, and it is important to understand the context for the proposed amendments. New South Wales currently has in place a range of coordinated measures to deter and address drink-driving, including intensive police random breath test enforcement, with more than five million tests conducted each year. This enforcement action is supported by public education and awareness campaigns by the New South Wales Government, such as Plan B and Paranoia, and is reinforced by tough penalties including fines and licence disqualification periods, as well as imprisonment for serious offences.
Since the introduction more than 30 years ago of random breath testing in New South Wales, these measures have, collectively, contributed to a massive reduction in alcohol-related trauma on New South Wales roads. Importantly, the community now understands, and no longer accepts, the risk that drink-driving behaviour poses to other road users. However, well over 20,000 drivers are still charged each year with a drink-driving offence, and alcohol remains a factor in around 20 per cent of fatalities on New South Wales roads. In the past five years more than 340 people have been killed and more than 5,700 people have been injured in alcohol-related crashes. Most offenders charged by police each year face court, accept the consequences of their actions and do not re-offend. But we also know that some offenders are not heeding the road safety message or are not deterred from re-offending by traditional penalties or risk of detection. Analysis shows that one in six offenders in New South Wales will be convicted of a further drink-driving offence within five years.
Additionally, around 18 per cent of all drink-drive offenders annually are convicted of a high-range first offence, where the blood alcohol detected is 0.15 or above, or refuse to submit to a police test. A driver with a blood alcohol reading of 0.15 is 25 times more likely to be involved in a crash than is a sober driver. These repeat and high-risk drink-driving offenders are the target group for this proposed alcohol interlock initiative. This type of behaviour must be tackled and deterred if New South Wales is to achieve reductions in alcohol-related trauma. Alcohol interlocks are devices that are connected to the ignition of an offender's vehicle; they prevent the engine from starting if a breath sample provided by the driver is above a set limit. Drivers who participate in interlock programs are restricted to driving only vehicles with these devices installed.
Interlock programs help offenders to learn how to separate their drinking from their driving, while enabling them to continue to access employment and essential services for their families. By providing a strictly monitored way back into licensing, interlock programs reduce the chance that offenders will drive unlicensed, and potentially under the influence, while disqualified. This is particularly important for rural and remote offenders, who have a strong reliance upon their licence. The expansion of alcohol interlock programs to more offenders is a key action of the National Road Safety Strategy. All jurisdictions in Australia have now taken action to develop or expand offender alcohol interlock programs.
13 August 2014 LEGISLATIVE COUNCIL 30481
The introduction of a mandatory alcohol interlock program in New South Wales will work alongside existing drink-driving countermeasures to further reduce alcohol-related offences and trauma on New South Wales roads. Under the Road Transport Act 2013 the court can make an order enabling an offender convicted of certain drink-driving offences to participate in a New South Wales interlock program, but participation is currently voluntary. The offender has a choice to enter the program, which is administered by Roads and Maritime Services, or serve a lengthy licence disqualification period. This voluntary program has been in place since 2003. While the program has helped many individuals to address their drink-driving, participation in the program has been limited to fewer than 5 per cent of high-risk offenders.
The low participation rate has limited the ability of the program to achieve broader road safety benefits. This bill will make it mandatory for the court to issue interlock orders to all repeat and serious offenders convicted of an eligible alcohol-related major offence. Eligible offences include any high-range prescribed concentration of alcohol [PCA] or refuse to submit to a breath analysis offence that is a first offence, and any PCA, including novice, low, mid or high-range offence, or refuse to submit to a breath analysis offence that is a second or subsequent alcohol-related offence within a five-year period.
The bill also allows, but does not require, the court to issue interlock orders to persons convicted of dangerous driving offences under section 52A of the Crimes Act. The issue of interlock orders in these circumstances is left to the discretion of the court, as offences under section 52A do not necessarily involve alcohol. The court is in the best position to consider the circumstances of these serious offences and issue an interlock order only if it is relevant and appropriate. All interlock orders will require the offender to serve an initial licence disqualification period where no licence will be available, and then complete a period of interlock participation. The initial licence disqualification period, where the offender cannot apply for any type of licence, will be shorter than current automatic disqualification periods outlined in the Act.
However, when the initial disqualification and interlock periods are combined, the total period is comparable to, and in most cases longer than, the current licence disqualification period under the Act. Shorter upfront disqualification periods are a key feature of best practice interlock programs internationally, as offenders are enrolled in an interlock program as soon as possible after an offence. These offenders are then prevented from any further offending or unauthorised driving, and there is a timely connection between their offence and the learning process to separate drinking and driving. An offender who is subject to an interlock order may, after completing their initial disqualification, be issued an interlock licence by Roads and Maritime Services. Interlock licence holders may only drive a vehicle with an interlock device installed and are subject to strict interlock program requirements.
Interlock periods outlined in the bill increase in accordance with the severity of the drink-driving offence. Minimum interlock periods prescribed in the bill range from 12 months for low-range and novice-range repeat offences to 48 months for serious repeat high-range offences. A 12-month minimum period is required to ensure all offenders have time to learn how to change their drinking and driving behaviour, which may be entrenched. They must demonstrate this change over a sustained period before moving to a standard licence without the interlock requirement.
The court will have the discretion to order a longer interlock period than the prescribed minimum if warranted by the circumstances of the case. If an offender, following their initial licence disqualification, does not enrol in the interlock program and complete the interlock period ordered by the court they will remain disqualified from holding a licence other than an interlock licence until five years has passed from their conviction. This underlying five-year disqualification is in place to encourage the largest number of offenders to participate in the interlock program and ensure the maximum road safety benefits are achieved for the community.
The bill allows offenders convicted of eligible offences to be exempted from participation in the interlock program in two limited circumstances only. The onus is on the offender to prove to the court's satisfaction at the time of sentencing that an exemption is required. The first circumstance is where the offender has a serious medical condition that means they cannot provide a sufficient breath sample to operate the device and it is not reasonably practicable to alter the device to accommodate use by the offender. Due to the flexible nature of interlock breath test technology, which can operate with very small breath samples, and the experience of other jurisdictions in administering mandatory interlock programs, it is anticipated that very few offenders will have a medical condition severe enough to warrant exemption by the court on medical grounds.
The second circumstance is where the offender does not own or have access to a vehicle in which to install the device. The wording of this provision is important. To seek this exemption an offender should demonstrate not only that they do not own a vehicle but also that they do not have regular access to a shared, family or work vehicle in which the device may be installed. As most offenders have access to the vehicle in which they committed their offence, and analysis by Roads and Maritime Services shows that around two-thirds of licensed offenders have a vehicle registered in their name at the time of their offence, the number of offenders that are granted this exemption is expected to be comparatively low.
These exemptions are not in place to introduce a way out for offenders, but are intended to allow the court to issue an alternative order in the limited circumstances where it would be clearly and manifestly unfair to order an interlock period. The bill provides that no offender is to be exempted solely because they would find it difficult to pay for interlock services, would be prevented from driving in the course of their employment if the order is made, or the registered operator of the vehicle that the offender has access to objects to the installation of the device. Offenders that are exempted will be subject to the existing, lengthy licence disqualification periods under the Act for their offence, in addition to any other penalty the court may impose.
Additionally, Roads and Maritime Services will require any offender that is exempted and does not demonstrate their separation of drinking and driving through participation in the interlock program to complete a drink-driving awareness and rehabilitation course such as the Sober Driver Program. The bill also enables offenders who are initially exempted from the interlock program, but are subsequently able to participate due to a change in circumstances, to apply to Roads and Maritime Services to enter the interlock program. This is intended to ensure the benefits of the program are extended to the greatest possible number of offenders and road safety benefits are maximised under this program.
In these circumstances, Roads and Maritime Services has the authority to convert the disqualification period into the interlock period that the bill imposes for the offence. The provisions have been structured in such a way that no offender will receive 30482 LEGISLATIVE COUNCIL 13 August 2014
advantage in terms of the interlock period required if they enter the interlock program through this avenue. They will be, at best, in the same position as they would have been if they received an interlock order at court. I understand that there may be some concern in the community that offenders who formerly would have been disqualified from holding any licence for a lengthy period will now be able to hold an interlock licence and be back on the road comparatively soon after their offence. This is not about being soft on drink-drivers.
I stress that any driver who holds an interlock licence will be monitored by Roads and Maritime Services for the duration of their interlock program. All attempts to start the vehicle and any attempts to interfere with the proper operation of the device are logged by the interlock device, and that data will be monitored by Roads and Maritime Services. Warning letters and referrals for health interventions will be sent to drivers who frequently try to start their vehicle while under the influence. The vehicle itself will not start if alcohol is present. Interlock licence holders will, like novice drivers, be subject to a zero blood alcohol requirement to ensure the complete separation of drinking and driving.
The bill includes amendments to the definition of novice driver to include drivers who hold an interlock drivers licence. In most circumstances the interlock device will prevent drink-driving. However these changes mean that any interlock licence holder who foolishly attempts to drive a vehicle with any alcohol in their system will be charged with a PCA offence and sent straight back to court. Statutory rule-making powers within the Act that were established to implement the voluntary interlock program and relate to the installation and maintenance of interlock devices, interlock licence conditions, data provision and program requirements, vehicle inspection by the authority and the NSW Police Force, as well as offences related to unauthorised use or tampering with devices, are largely unaffected by the bill.
These provisions will remain in place to enable the development of detailed statutory rules around the mandatory interlock program. Regulatory amendments will be made later in 2014, prior to anticipated commencement of the provisions in February 2015. In addition to ongoing monitoring and strict program requirements, offenders will not automatically qualify for an unrestricted or provisional licence without the interlock condition at the end of their interlock period if they have not demonstrated compliance with program requirements. The bill expressly allows Roads and Maritime Services to refer a driver for a fitness-to-drive assessment at the end of their court-ordered interlock period if the driver has failed to demonstrate the sustained behaviour of separating drinking and driving during the interlock period.
Based on the fitness-to-drive assessment conducted by a medical practitioner, Roads and Maritime Services may decide that it is appropriate for the interlock condition to remain on the driver's licence until such time as any underlying health conditions, such as alcohol dependency, are addressed. This provision is in place to ensure those drivers who are unable to separate drinking and driving, even after a long interlock program, and who may pose a risk to the community are allowed to drive only with the safeguard of an interlock device. Frankly, the community needs to be protected from the trauma and loss caused by drink-driving. The mandatory interlock program will, like the voluntary program, operate on a user-pays basis and be delivered by third party service providers.
The bill enables Roads and Maritime Services to enter into agreements with third party providers to deliver interlock services, including the installation, maintenance and removal of devices. While it is important that offenders are held responsible for any costs arising as a result of their interlock period and their offence, the costs of maintaining a device could be significant, particularly for low-income offenders. It is important that no offender is excluded from the behavioural change benefit of an interlock program purely because of cost, particularly as the alternative to participation is a lengthy five-year disqualification. For this reason, the Act will continue to include provision for a financial assistance scheme to support program participants who have difficulty paying for interlock services. Financial assistance will include both concession rate fees for eligible card holders and additional limited duration fee subsidy for offenders in severe financial hardship.
As outlined, all Australian jurisdictions have been taking action to introduce or enhance their interlock programs to tackle drink-driving. While these schemes have been developed independently and with considerable variation, it is important that any offender who is subject to an interlock requirement in another State remains subject to that requirement if they move to New South Wales and seek a New South Wales driving licence. The bill enables Roads and Maritime Services to transfer interstate interlock licence holders to the New South Wales mandatory program and to set an appropriate interlock period based on the time ordered and already served in their original home jurisdiction. This is intended to ensure drink-drivers from other jurisdictions are managed strictly but treated fairly if they move to New South Wales, and to enable Roads and Maritime Services to manage effectively the expected increase in interlock licence transfers as programs grow nationally.
The other provisions of this bill relate to repeat traffic offenders. The Government has heard the call from NRMA Motoring and Services on behalf of its members and all motorists to implement tougher penalties for bad drivers. Persistent risky driving is not acceptable on New South Wales roads and will result in tough penalties. Any unrestricted licence holder who receives a licence suspension under the legislation because they have exceeded their demerit point threshold twice in five years will be required to complete a driver knowledge test before their licence suspension will be lifted. These offenders will also be required to complete a driving awareness course to improve their understanding of traffic law and the road safety implications of their behaviour. It is anticipated that this course will be delivered by not-for-profit community organisations approved by the Department of Police and Justice to deliver the Traffic Offender Intervention Program.
Traffic offender intervention programs have demonstrated their value in reducing re-offending, and are regularly ordered by courts across New South Wales in pre-sentencing for traffic offenders. The cost of the course and testing requirements will be borne by offenders. The measures proposed target offenders who refuse to acknowledge the dangers of drink-driving and other traffic offences to the community. This bill sends a clear road safety message that dangerous driving behaviour is not tolerated on this State's roads. Any drink-driver convicted of a high-risk offence must demonstrate that they are capable of separating drinking and driving through an interlock or rehabilitation program before they will be trusted with a standard New South Wales licence. Similarly, repeat traffic offenders must demonstrate knowledge of the road rules before they will be permitted back on the road. I trust that members will lend their support to the bill and I commend it to the House
The Hon. WALT SECORD [9.42 p.m.]: As shadow Minister for Roads I lead for Labor on the Road Transport Amendment (Mandatory Alcohol Interlock Program) Bill 2014. For those who are not familiar with these devices, alcohol interlocks are electronic breath-testing devices connected to the ignition of a vehicle's 13 August 2014 LEGISLATIVE COUNCIL 30483
engine. If the driver has any alcohol in their system, the vehicle will not start. Presently they are a voluntary option in New South Wales to reduce the incidence of repeat drink-driving. However, they are increasingly becoming mandatory in many common law jurisdictions. Interlock devices are used in the United States, Canada and New Zealand. All Australian States and Territories have mandatory alcohol interlock device programs or are considering them. Tasmania and Western Australia are the most recent jurisdictions to introduce them.
Labor will be supporting the Road Transport Amendment (Mandatory Alcohol Interlock Program) Bill 2014 as combating drink-driving is a bipartisan issue. I note that this bill contemplates a targeted, as opposed to a broad, deployment of this technology. The bill makes it possible for a court to issue an interlock order to repeat and serious offenders convicted of a major alcohol-related offence. These offences include a high-range prescribed concentration of alcohol, refusal to submit to a breath analysis, and any prescribed concentration of alcohol for a second offence or a subsequent alcohol-related offence within a five-year period.
This seems an appropriate balance between enforcement and individual liberty—particularly when one considers the tremendous cost of drink-driving. In the past five years, more than 340 people have been killed and more than 5,700 people have been injured in alcohol-related crashes. Alcohol was a factor in about 20 per cent of all New South Wales deaths. In New South Wales, about 18 per cent of those convicted of drink-driving have had a previous drink-driving conviction. Furthermore, drink-driving is associated with driving while disqualified. Currently, New South Wales police conduct five million random breath tests a year and each year more than 20,000 drivers are charged with a drink-driving offence. Unfortunately, of the 20,000 who are charged each year, one in six offenders in New South Wales will be convicted of a second drink-driving offence within five years. It is this recidivism that this bill seeks to target and Labor clearly supports that.
However, as indicated on 6 August by my colleague in the other place Ron Hoenig, we will be moving an amendment to improve the bill. This will relate to a loophole that has been brought to our attention. Currently, it is a breach of the licence condition as a driver on an interlock device to try to circumvent the device. Surprisingly, it is not an offence to help someone else circumvent the device, so we will be proposing a single amendment that will carry a penalty of $2,200. Despite assurances by the office of the Minister for Roads and Freight that he can fix up his mistake by regulation, Labor believes that the improvement would be best addressed as an amendment in the legislation—rather than slipped into a regulation and quietly gazetted on a Friday afternoon.
Labor has a proud history on initiatives to reduce drink-driving stretching back to 1982 when the Wran Government introduced random breath testing [RBT] on New South Wales roads. It has been estimated that some 7,000 lives have been saved as a result of RBT. In 2003 the then roads Minister, Carl Scully, introduced the interlock device into New South Wales as a court-based penalty for drink-drivers on a voluntary basis. At the time the Carr Labor Government provided that if convicted drink-drivers volunteered to obtain an interlock driver licence and took part in the program they were allowed to continue to drive after a reduced disqualification period. Those who did not volunteer to be part of the program had to serve their full disqualification period.
This legislation not only builds on Labor's achievements in this area, but is itself a Labor initiative. In August 2013 my predecessor, the member for Keira, wrote to the Chair of the Joint Standing Committee on Road Safety—Staysafe—the member for Albury, Greg Aplin, suggesting that the Liberal-Nationals Government expand the interlock devices program. At the time the member for Keira requested an examination of legislative and operational requirements to introduce mandatory installation of alcohol interlocks in the cars of drivers who applied for a probationary licence following a second offence of driving under the influence of alcohol within five years, or if they had committed any offence relating to a blood alcohol content of 0.15 per cent, which is three times the legal limit, or higher. On 30 October 2013 Minister Duncan Gay announced that he would be pursuing a slightly watered-down version of a proposal as advocated by the member for Keira.
I return to the bill before the House. The Road Transport Amendment (Mandatory Alcohol Interlock Program) Bill 2014 seeks to amend the Road Transport Act 2013. The amendments aim to give a court the discretion to order the use of breath alcohol interlock devices fitted to motor vehicles with a mandatory period of disqualification for drivers convicted of certain alcohol-related driving offences. It also provides for the accreditation of persons installing, removing, maintaining and carrying out other functions in relation to such devices and for Roads and Maritime Services to enter into agreements concerning the exercise of such functions. Furthermore, it enables Roads and Maritime Services to require certain holders of licences who repeatedly exceed specified demerit point thresholds to undertake driver education courses and driver knowledge tests; and to make provisions of a consequential and transitional nature. 30484 LEGISLATIVE COUNCIL 13 August 2014
The bill outlines minimum interlocking periods, ranging from 12 months for low-range and novice driver repeat offenders to 48 months for serious, repeat high-range offenders. I note that judicial discretion is retained through the bill, despite claims by the Government that it would be mandatory. A 12-month minimum period will be put in place to ensure that offenders have enough time to learn how to change their drinking and driving habits. Before participating in the interlocking program all offenders will have to serve a licence disqualification period when no licence will be available. Although this period is shorter than the current period outlined in the Act, the combined period of disqualification and interlocking participation will, in most cases, be longer than that currently spelled out in the Act. The bill will give the court discretion to order a longer interlocking period than the minimum, if needed. If an offender does not take part in the interlocking program, as ordered by the court, they will be disqualified from holding a licence for five years.
Convicted offenders can be exempt from taking part in the interlocking program in two circumstances: First, if the offender has a serious medical condition that prevents them from using the device; and, secondly, where the offender does not own or have access to a vehicle in which they can use the device. However, any offender exempt from the interlocking program must complete a drink-driving awareness and rehabilitation course. Roads and Maritime Services will monitor all drivers who participate in the interlocking program by using data captured by the devices. Roads and Maritime Services will also send warning letters and referrals for health interventions to drivers who frequently try to start their vehicles whilst under the influence of alcohol. Under the provisions of the bill a court can also issue an interlock order to a person convicted of a dangerous driving offence in breach of section 52A of the Crimes Act, provided the offence deals with the consumption of alcohol beyond the statutory level.
Section 52A of the Crimes Act provides for a range of different driver behaviours. That section carries penalties of imprisonment, but it is only the alcohol-related offence under section 52A to which this bill purports to apply. Further, the punishment for the offender will include a period of licence disqualification prior to the interlock device being fitted to the vehicle. In conclusion, there has been a significant change in our culture to alcohol and driving since Labor first introduced random breath testing. There is also clear community support for both sides of politics to continue to vigorously tackle drink-driving. I have lived in Australia since 1988 and it has been quite remarkable to observe the change in attitude to alcohol and driving.
Before the introduction of widespread breath testing, one was only permitted to be breath tested if police had observed a driver doing something wrong or if they had been involved in a car accident. Now we expect to be breath tested on a holiday weekend on New South Wales roads as part of our mutual responsibility as a safe community. Furthermore, it is reassuring to hear young people talk about who will be the designated driver, making plans to use public transport or pooling to get a taxi rather than drink-drive. I am pleased to be part of a political party and a community that adopts a considered approach to the safety of others, and I welcome the Government's efforts to continue to strengthen the laws in this regard. I commend the bill to the House.
Mr DAVID SHOEBRIDGE [9.51 p.m.]: I make a contribution to debate on the Road Transport Amendment (Mandatory Alcohol Interlock Program) Bill 2014 and state at the outset that The Greens support the bill. This is the second alcohol- and drug-related driving bill to come before the House this week. I refer to the comments I made in debate on behalf of The Greens in relation to the need for legislative provisions that deter drivers from consuming alcohol and/or drugs before getting behind the wheel of a vehicle and by reason of intoxication turn that vehicle into a lethal weapon. Indeed, the Minister in his second reading speech referred to statistics which show that if a person driving a vehicle has a prescribed content of alcohol in their bloodstream of 1.5 or above they are 25 times more likely to cause an accident than they would if they were sober.
Unfortunately, a number of people, despite being found guilty of an offence of driving with a prescribed content of alcohol in their bloodstream, will continue to offend. Others are dependent upon a motor vehicle for their transport, particularly in regional New South Wales where the loss of a licence can be devastating to a person's career and their ability to access services that people in the city, with access to public transport, take for granted. The bill moves the law from a voluntary engagement with the interlock program to a mandatory engagement. The bill provides that an interlock device will be mandatory for a person who has a motor vehicle or has access to a motor vehicle and is convicted of a second or subsequent offence of driving with the prescribed content of alcohol in their bloodstream, or if that person is convicted of a first offence of driving with a high prescribed content of alcohol.
The bill puts in place two stage licence conditions. At the lower end, the range runs from a minimum disqualification period of one month to a maximum disqualification of three months. At the higher end, where 13 August 2014 LEGISLATIVE COUNCIL 30485
someone is convicted of a second or subsequent offence for driving with a high-range prescribed content of alcohol in their bloodstream, the range runs from a minimum disqualification period of nine months to a maximum disqualification of 12 months. The bill also puts in minimum interlock periods to be imposed by the courts.
The minimum interlock period for an offender who is caught driving with a low-range prescribed content of alcohol on his or her second or subsequent offence is 12 months and it rises to a maximum interlock period of 48 months if the offender is convicted of a second or subsequent offence where the offender has a high-range prescribed content of alcohol. At the higher end of the range an offender can be 12 months without a licence, a complete disqualification, and then another four years with an interlock device fitted to his or her vehicle or a vehicle the offender has access to.
It will be the responsibility of the offender to pay for, install and maintain the interlock device. This would have raised substantial concerns as to the equity of this arrangement were it not for the fact that the Minister advised in his second reading speech that the Act will continue to include provision for a financial assistance scheme to support program participants who have difficulty paying for interlock services. The financial assistance will include both concession rate fees for eligible cardholders and an additional limited duration fee subsidy for offenders in severe financial hardship. With those checks and balances, which ensure that it will not be an utterly inequitable and complete removal of an offender's licence if he or she has very limited financial means, and consistent with an excellent policy direction in seeking to deter people from repeat drink-driving, The Greens support the bill.
Reverend the Hon. FRED NILE [9.56 p.m.]: On behalf of the Christian Democratic Party I am pleased to speak in support of the Road Transport Amendment (Mandatory Alcohol Interlock Program) Bill 2014. Earlier this week this House dealt with a related bill and the Christian Democratic Party strongly supported that bill as well. This is the second stage of the Government's plan to reduce accidents on New South Wales roads caused through the consumption of alcohol and/or drugs. In the 12 months prior to February this year 12.7 per cent of fatal accidents on New South Wales roads involved alcohol and 43 people died in those accidents. That is 43 immediate families, not to mention extended families and friends, who experienced the loss of a loved one as a result of drink-driving. Others drive under the influence of drugs, including drivers of long-distance freight trucks and those using so-called recreational drugs. I do not like the term "recreational drugs"; I prefer the term "illegal drugs". All these people put lives at risk.
I refer to the tragedy of Brodie Donegan, whose daughter the Crimes Amendment (Zoe's Law) Bill 2013 was named after. That bill was based on an original bill that I introduced into this House. On Christmas Day 2009 Brodie was hit by a drug-affected driver and as a result her daughter, Zoe, was killed. During my 33 years in this place I have been relentless in campaigning against the harmful impact of alcohol. Over the years I have introduced a series of bills dealing with alcohol advertising, the labelling of liquor and so on. Sadly, in spite of the harm alcohol causes, I have been unable to gain the support of Labor or Liberal governments in the prohibition of alcohol advertising. One day it will happen. We did get a bill passed to prohibit cigarette advertising and people thought that was impossible, so I am always hopeful.
This bill is a big step in the right direction. It will introduce a mandatory alcohol interlock program for serious and repeat drink-driving offenders in New South Wales. It will also implement increased penalties for repeat traffic offenders in New South Wales. It is my recommendation to the Government that individuals involved in serious and repeat drink-driving offences should not be allowed to drive, full stop, that they should have their driver licence permanently cancelled and that if they are caught behind the wheel of a car without a licence they go to jail. In October 2013 the New South Wales Government announced the introduction of the NSW Mandatory Alcohol Interlock Program [MAIP] to target serious and repeat drink-drivers.
Pursuant to sessional orders business interrupted to permit a motion to adjourn the House if desired.
The House continued to sit.
Reverend the Hon. FRED NILE: The program will replace the voluntary interlock program that has been operating in New South Wales since 2003 and will target serious and repeat drink-drive offenders who are facing licence disqualification for drink-driving. Drivers convicted of drink-driving offences pose a particularly high risk to the community. Research has found that drivers previously convicted of driving while intoxicated are around four times more likely to be involved in a fatal drink-driving crash than the average driver. Most States in Australia have either adopted or are soon to adopt the mandatory alcohol interlock program. 30486 LEGISLATIVE COUNCIL 13 August 2014
An interlock is an electronic device connected to the ignition of a vehicle that prevents the vehicle from starting unless the driver completes an alcohol breath test and has a reading below a specified alcohol limit. This bill introduces a new sentencing regime in New South Wales for drink-drivers with a mandatory alcohol interlock order for all serious and repeat drink-drive offenders. The new mandatory alcohol interlock order will include a judicially determined period of disqualification followed by a period of participation in the New South Wales mandatory interlock program. All interlock program participants will be subject to licence conditions that restrict driving to vehicles with an alcohol interlock device fitted.
The new New South Wales mandatory interlock program will also include a zero blood alcohol content limit for all interlock licence holders; measures to provide early interventions regarding alcohol dependency based on interlock data to monitor drink-driving attempts during the program; an administrative component to transfer those who are not ready to exit the judicial interlock program to be managed under the New South Wales licensing system; a market-based, user-pays model for accredited alcohol interlock providers to install and service alcohol interlocks, absorb reduced costs for concession cardholders and provide program performance data to Roads and Maritime Services; and exemption and hardship provisions for extenuating circumstances. In my opinion, circumstances would have to be pretty extenuating to provide for exemptions. I believe that provision should be kept under close supervision for future consideration as to whether it should be repealed.
The bill also provides support for the costs of program participation. A three-tiered cost structure will be introduced to assist with the costs of interlock program participation. This will include a full fee to be market driven, a reduced rate of 35 per cent to be offered to eligible concession cardholders that is absorbed by interlock service providers, and a subsidy for those in severe financial hardship paid from the Community Road Safety Fund. I believe those are very generous provisions for drivers who drive and drink and who do not deserve those concessions and subsidies.
When implemented, the mandatory program is expected to reduce the reoffending rate of high-risk drink-drivers from the current one in six to one in 12. This equates to a reduction of around 500 offences per year. The bill also implements new penalties for repeat traffic offenders in New South Wales. Specifically, the bill amends the current demerit point system in New South Wales to accommodate the following additional penalties. Unrestricted licence holders who exceed their demerit point limit twice in five years will be required to re-sit the Driver Knowledge Test and complete a driver education course prior to having their demerit point suspension lifted; and provisional P1 and P2 licence holders who twice exceed their demerit point limit will be required to sit the Driver Knowledge Test prior to having their demerit point suspension lifted. We support those additional penalties.
In addition, Roads and Maritime Services will update its current licensing policy and procedures to ensure all drink-drivers who are convicted of a second or subsequent offence in a five-year period sit a specially created drink-driving knowledge test prior to returning to driving. As I said earlier, I believe those are very generous concessions and, after a reasonable trial, consideration should be given as to whether there should be a further provision that drivers who come under these provisions will have their driver licence permanently cancelled and will never again be allowed to be behind the wheel of a car.
Following the legislative changes, regulatory amendments will be finalised later this year to ensure that the new interlock program is implemented in February 2015. We again commend the Hon. Duncan Gay, the Minister for Roads and Freight, for his initiative with this legislation. It will save lives in New South Wales and many families will be very happy to have all the members of their family alive and well.
The Hon. DUNCAN GAY (Minister for Roads and Freight, and Vice-President of the Executive Council) [10.06 p.m.], in reply: I thank members for their contributions to debate on the Road Transport Amendment (Mandatory Alcohol Interlock Program) Bill 2014. I thank Reverend the Hon. Fred Nile for his worthy contribution, and Mr David Shoebridge. For two nights in a row we have had a heated agreement on legislation and I commend him for his contribution.
Mr David Shoebridge: It won't last.
The Hon. DUNCAN GAY: It probably won't last. I also thank the Opposition spokesman, the Hon. Walt Secord for his comments and for his great alacrity and brevity—two outstanding traits to be found in the same speech. The source of the fatherhood of this great piece of legislation is in some doubt when one compares his comments with mine. The Hon. Walt Secord thinks that the legislation was suddenly generated 13 August 2014 LEGISLATIVE COUNCIL 30487
after an Opposition spokesman made a statement. If he had experience in the real world of government where people actually do things he would have discovered that it takes many months to get to the stage where a Minister makes an announcement.
He probably will not accept this but I will tell him anyway: the initial push for this legislation probably lies with the NRMA. The then Premier Barry O'Farrell saw an article in the Open Road. He ripped the page out and shoved it in front of me—I was sitting across the table from him in Cabinet—and said, "Why can't we do this?" I said, "Premier, is that something that you feel strongly about?" He said, "Yes". I said, "I will talk to the Centre for Road Safety". That is where the legislation started and it came back through Transport as a program.
I have to say it made it a lot easier when we heard the then Opposition spokesman saying that he supports the same thing. A degree of kudos should go to the previous shadow Minister because it is a good idea. Like all good ideas, it has many fathers. I am aware that the Opposition will be moving an amendment and I have indicated to the shadow Minister that the Government will oppose it. A number of tampering offences for alcohol interlock devices currently exist in the Road Transport (Driver Licensing) Regulation 2008. We will be making consequential amendments to that regulation, including making it an offence for a person to assist a participant to get around the interlock device. I thank members for their contributions to this debate and commend the bill to the House.
Question—That this bill be now read a second time—put and resolved in the affirmative.
Bill read a second time.
In Committee
Clauses 1 and 2 agreed to.
The Hon. WALT SECORD [10.12 p.m.]: I move Opposition amendment No. 1 on sheet C2014-066A:
No. 1 Page 6, schedule 1. Insert after line 2:
[18] Section 47A
Insert after section 47:
47A Assisting holder of interlock driver licence to contravene licence conditions
A person must not assist the holder of an interlock driver licence to start or operate a motor vehicle in contravention of a condition of the licence imposed in relation to the holder. Maximum penalty: 20 penalty units.
I said in my speech during the second reading debate and my colleague Ron Hoenig indicated in the other place on 6 August that the Opposition will move an amendment to improve the bill and address a loophole. I closely examined the bill with Parliamentary Counsel and they confirmed that a legislative gap exists. This is a simple and straightforward amendment. By way of background, currently it is a breach of interlock licence conditions for a driver to try to circumvent the device. Roads and Maritime Services has advised that it will contact a driver who has an interlock if it appears that they tampered with or attempted to use the device after the device prevented them from using the vehicle. That is appropriate.
Unfortunately, drink-drivers will find a way to get around devices. That is why we are moving this amendment: to add another layer to the armoury to combat drink-driving. Drink-drivers are resourceful. Police say that they are often apprehended on back streets trying to avoid random breath testing. Therefore, it does not require a leap of imagination to realise a drink-driver will get someone to help them activate an interlock device. Surprisingly, it is not an offence to help someone circumvent an interlock device. This amendment goes towards addressing that situation. For example, a passenger seated next to the driver can breathe into the device, which activates the engine. The alcohol interlock device in New South Wales requires a blood alcohol level of zero, so a driver having consumed a single drink cannot activate the device but a sober passenger can. Unfortunately, I have been advised of anecdotal incidents where people have claimed that they were able to get others to operate the device.
There will be instances when a young person who is unable to drive or someone who is too old to drive will be in the vehicle and able to activate the interlock device. Furthermore, there are now internet sites and YouTube 30488 LEGISLATIVE COUNCIL 13 August 2014
videos that advise people in North America how to get around alcohol interlock devices. Members will be interested to know that alcohol interlock devices need to be activated regularly during a journey to make the vehicle operate, so circumventing the device takes planning and effort. But for safety reasons an interlock device will not stop a vehicle immediately. Members will also be interested to know that the Opposition amendment will carry a maximum penalty of 20 penalty units, which currently translates to a fine of $2,200. This is in line with similar and comparable offences. For example, a person who is found to have unlawfully removed an interlock device will face a penalty of $2,200. We therefore believe our amendment carries a reasonable and sensible penalty.
This amendment is simple and effective, and the Opposition would like the Government to accept it. It aims to deter others from assisting repeat drink-drivers from operating a motor vehicle on our State's roads while they are affected by alcohol. While it is hard to circumvent the alcohol interlock device because the driver must provide a regular sample during a journey, it is not impossible. Despite assurances from Susannah from the Minister's office that the Minister can fix this by way of regulation, we disagree. Labor believes the issue would be best resolved in the legislation and passed as one package. Labor believes this measure should be introduced in the bill rather than by regulation. For the aforementioned reasons, I commend the amendment to the Committee.
The Hon. DUNCAN GAY (Minister for Roads and Freight, and Vice-President of the Executive Council) [10.16 p.m.]: As I indicated in my speech in reply, the Government opposes Opposition amendment No. 1. We have identified the importance of ensuring that the person who is driving a vehicle fitted with an interlock device is the same person who has provided the breath sample into the device. As part of a range of measures to achieve that the Government will include a new offence in the Road Transport (Driver Licensing) Regulation 2008 for assisting an interlock licence holder to circumvent an interlock device. Under the current structure of the law all interlock offences are set out in one place. This assists the community to see clearly the full set of offences relating to interlock devices. Section 47 of the Road Transport Act 2013 already provides regulatory authority to create a range of offences relating to the alcohol interlock program. These offences include unauthorised device installation and removal, device tampering and breach of licence conditions, which sit in the regulations.
It is important that the new offence specifically targets any person assisting an interlock licence holder to drive a vehicle by bypassing the interlock device. The Opposition's proposed offence as drafted is frankly too broad and could apply heavy penalties to a range of actions that are unrelated to the use of an interlock device. This could include assisting an interlock licence holder to start or operate a motor vehicle in contravention of any condition attached to their licence even though some of the conditions may be unrelated to the use of an interlock device. In fact, the amendment makes no reference to any action taken in relation to the interlock device. The Government opposes the amendment.
Mr DAVID SHOEBRIDGE [10.19 p.m.]: On behalf of The Greens I indicate that we will not support Opposition amendment No. 1 principally for the reason the Minister made clear at the end of his contribution. I think the drafting is well intentioned and I do not criticise the Opposition for putting this amendment forward. I also think the Government implicitly acknowledges that there is a gap that needs to be filled, so everyone is on the same page. The amendment reads:
A person must not assist the holder of an interlock driver licence to start or operate a motor vehicle in contravention of a condition of the licence imposed in relation to the holder.
That is extremely broad. If the amendment were limited to assisting someone to circumvent the interlock device, I think The Greens would support it. But, arguably, the amendment as drafted would catch someone who jump-started a car or who used their car to provide a battery to jump-start the car, even if they did not know that the driver would be in some way breaching an interlock condition. The amendment should be focused on people seeking to circumvent the interlock device. If that is fixed in the regulations, hopefully everyone will be happy—except of course those who seek to contravene or circumvent an interlock device.
Question—That Opposition amendment No. 1 [C2014-066A] be agreed to—put and resolved in the negative.
Opposition amendment No. 1 [C2014-066A] negatived.
Schedule 1 agreed to.
Title agreed to.
Bill reported from Committee without amendment. 13 August 2014 LEGISLATIVE COUNCIL 30489
Adoption of Report
Motion by the Hon. Duncan Gay agreed to:
That the report be adopted.
Report adopted.
Third Reading
Motion by the Hon. Duncan Gay 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. DUNCAN GAY (Minister for Roads and Freight, and Vice-President of the Executive Council) [10.23 p.m.]: I move:
That this House do now adjourn.
CENTRAL WEST JOBS
The Hon. MICK VEITCH [10.23 p.m.]: Tonight I raise again the ongoing job crises in the Central West of New South Wales. As members will be aware, I have raised this issue on several occasions in the Chamber. A structural adjustment to the economy in that part of the State has had a significant impact on the manufacturing sector—about 1,500 jobs have been lost in that part of New South Wales. Everyone wants this issue addressed. No-one in the Chamber to whom I have spoken wants to absolve our responsibilities to the people of the Central West. We all agree that something must be done. The argument is about the path to get there; we are all taking a different road to get to the same end result. The impact on the families is significant.
I have had the opportunity to talk to a couple of workers in Bathurst who lost their jobs as a result of the downsizing of one facility in Bathurst. I was saddened to hear about the impact on their children. One family was considering moving away from the Central West to find other employment. If all families do that it will have an impact on schools and create a domino effect: We will lose teachers, police officers and nurses. So this structural adjustment is having a significant and detrimental impact on the economy. The Government proposed the Payroll Tax Rebate Scheme (Jobs Actions Plan) Amendment (Fresh Start Support) Bill 2014 as its method to address the issue. I raise a couple of issues in that regard. On 13 May 2014 Deputy Premier Stoner responded to a question asked by the member for Orange, Andrew Gee, about the matter and how the Government was supporting jobs in the Central West. I quote the Hansard from the other place, in which Minister Stoner said:
… to assist the industries that have been going through some tough times and are perhaps downsizing or even closing, the Government has implemented a range of strategies to encourage new jobs for affected staff including the Fresh Start Support scheme—
that is the Payroll Tax Rebate Scheme—
as part of the Jobs Action Plan.
He continued:
The Central West is a part of our State that has faced more than its fair share of the pain associated with the job losses to which I referred. These losses include those from the planned closure of the Electrolux plant in Orange in 2016, a downsizing of Simplot, in the electorate of the member for Bathurst, and the closure of Downer EDI in Bathurst. Today—
that was 13 May—
I announced that the Government is introducing a Central West jobs action plan to support jobs growth in that region. We have been working for many years on structural adjustment strategies with the aforementioned companies including Simplot and Electrolux. The adjustment packages that we had discussed include a multimillion dollar package for Electrolux that was sadly not taken up by the board in Sweden last year.
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During the second reading debate on the bill in this place on 13 May I quoted a private member's statement made by the member for Orange, Andrew Gee, on 7 May. He said:
The issue of payroll tax rebates, which was referred to recently in this House, remains. The matter needs to be resolved sooner rather than later, but at least there is ongoing dialogue about it. That is a positive, and I will be following this issue very closely until it is resolved. The Electrolux wind-down commences in September 2015 and the earlier businesses can be given some direction as to the amount of the rebates available the better.
No-one would disagree with the member for Orange. He made a significant statement about the Payroll Tax Rebate Scheme when the bill was second read in the lower House. Members will be aware that when the bill came to this place we proposed an amendment to it. However, the Government adjourned debate on that bill, which continues to lie on the table. Why do I raise that issue today? It is because exactly three months ago to the day the Government adjourned debate on that bill in this House. If this was such an important and significant part of the Central West Jobs Action Plan, I ask Government members why debate on that bill has not been brought back on.
The Government told members in both Chambers that it was a significant part of the Central West Jobs Action Plan. For some reason, the Government will not accept our amendment and it will not put the bill before the House. We have had one sitting week in this session and the bill has still not been debated. I say to Government members: Bring the bill on. Let us get it done. We all agree that it must be done. The people of Orange and the Electrolux workers deserve to have it done. Let us get it done.
"CHAT WITH A NAT" BUS TOUR
The Hon. SARAH MITCHELL [10.27 p.m.]: In July this year the New South Wales Nationals parliamentary team conducted an almost 900-kilometre bus tour from Tweed to Tamworth in order to further engage with our communities, invite constituents to have a "Chat with a Nat" and give us honest feedback about our first term in government. Members on the trip included the Deputy Premier, Andrew Stoner; the Minister for Roads and Freight; the Minister for Natural Resources, Land and Water, Kevin Humphries; the Minister for Gaming, Racing and Hospitality and the Arts, Troy Grant; the Minister for Local Government, Paul Toole; and parliamentary secretaries the Hon. Melinda Pavey, Leslie Williams and Geoff Provest, as well as the Hon. Trevor Khan, Kevin Anderson, Stephen Bromhead, Andrew Fraser, Andrew Gee, Thomas George, Adam Marshall, Don Page, George Souris and me.
Our primary focus of the trip was to allow local The Nationals members of Parliament to show their colleagues firsthand what residents in their communities want from The Nationals in government, both now and after the next election. As the only party wholly and solely committed to representing regional New South Wales, The Nationals frequently provide opportunities for those living in regional areas to have their say. The bus tour began in Tweed Heads on Monday 21 June, with members of Parliament from across the State coming together to hear the issues and concerns affecting communities in northern New South Wales. On Monday night the member for Tweed, Geoff Provest, held an informal dinner for constituents and community leaders, with the following morning consisting of a visit to the Small Business Bus with the Deputy Premier, Andrew Stoner.
Giving local residents, businesses and community groups access to the Ministers with relevant portfolios was a key purpose of the bus tour. The New South Wales Nationals understand that government extends beyond the outskirts of metropolitan areas and that regional people deserve the same voice and influence as those in the city. We know that it is often difficult for people in regional New South Wales to get to Sydney or to a major town to meet with the relevant Minister. That is why it is important that our party brings Ministers and other members of Parliament to the people. I thank the Ministers who made themselves available for the bus trip. It was extremely appreciated by community members to have the opportunity to talk directly to those Ministers.
On Tuesday the bus tour moved into Thomas George's Lismore electorate and brought with it announcements of $1.63 million for Clifford Park to upgrade a range of community, recreational and sporting activities, including walking tracks, and exercise and playground equipment. This will address community needs for safe and open spaces for children and youth, with the expectation that it will also foster an increase in participation amongst the Aboriginal community. While in the Lismore electorate, we also visited the Stone and Wood Brewery in Murwillumbah that recently received funding from the NSW Regional Industries Investment Fund. It has constructed a second facility in the region, creating valuable new jobs for the community. It was fantastic to meet the employees at the site and see firsthand how the investment fund is creating strong business models in regional New South Wales. We made a quick stop at the Margaret Olley Centre at the Tweed River Art Gallery, which was just remarkable and well worth the visit. 13 August 2014 LEGISLATIVE COUNCIL 30491
The Ballina electorate of Don Page was next on the tour, with an evening function held for community leaders and organisations to acknowledge their important work. The Minister for Natural Resources, Lands and Water, and Minister for Western NSW, the Hon. Kevin Humphries, committed $140,000 to upgrade showgrounds and to control weed infestations in the Ballina region. Following that, the bus made its way down the coast to Coffs Harbour, which is the home of the local member, Andrew Fraser. The Volunteer Marine Rescue team put on a fantastic community barbecue. We then headed to the Oxley electorate and visited both the Akubra factory and the Slim Dusty Centre in Kempsey with our Deputy Premier and local member of Parliament, Andrew Stoner. It was then on to Port Macquarie, where Leslie Williams and Andrew Stoner hosted a well-received breakfast with community leaders on Thursday morning. Our final coastal stop was in Taree for morning tea.
The bus then headed up Thunderbolts Way to Tamworth, where we hosted community leaders from across the region on Thursday night. On Friday morning our team, which included the Minister for Roads and Freight, the Hon. Duncan Gay, the Deputy Premier, Andrew Stoner, and the local member of Parliament, Kevin Anderson, inspected the Manilla Road upgrade, which is on track to be completed by late August. Our final stop of the tour was to inspect the hospital redevelopment of the Tamworth hospital, which was a worthwhile visit. The project will be fantastic when it is completed and it will be a huge benefit to the whole Tamworth region. I thank all those involved in the tour, particularly the members of Parliament and those involved in the organisation of the tour. Most importantly I thank the people of our regional communities, who came out in droves in each and every community to meet with us.
The bus tour is just one example of how the New South Wales Nationals continue to listen to and engage with communities across regional New South Wales. The party may be at a historic high, representing more than 92 per cent of the State, but not a single village, town, or city will ever be taken for granted.
MOTOR VEHICLE ROOF-MOUNTED SPOTLIGHTS
The Hon. ROBERT BORSAK [10.32 p.m.]: Tonight I will speak about an issue affecting hunters, particularly those in the Hunter Valley area, it seems. It is an issue that tends to give rise to suggestions that hunters are often unfairly put upon by some authorities. I am still seeking clarification of the legal situation, but on the surface it is hard to argue with the hunters who feel put upon. Vehicles with roof-mounted spotlights are apparently being deemed illegal by some officers in the Hunter, and not by others. I have written to the police Minister on behalf of a number of concerned hunters seeking clarification of the laws relating to roof-mounted spotlights, which have handles attached that are inside the cab of the vehicle. I know that recently there have been a number of complaints from drivers who claim some Hunter Valley Highway Patrol officers have been issuing infringement notices that may not be valid under the road rules.
Apparently notices are being issued because roof-mounted spotlights are deemed by those officers to be a "non-essential item on a vehicle". However, the installation of searchlights on that same vehicle is legal. I must admit that, on the facts as presented to me, urgent clarification is needed. Perhaps there is a need for the police to liaise with traffic authorities to resolve this matter. In my letter to the police Minister I asked for his assistance in coordinating such meetings. At best I think we are looking at a difference in the interpretation of the road rules or at worst—as the hunters claim—it could be a case of victimisation by particular officers in the Hunter area. Either way, I have given an undertaking to the drivers who have complained to me that I will urgently seek clarification of the issue so they can at least be comfortable that they either have, or have not, done the wrong thing by putting spotlights on the roof of their cars.
From my limited understanding of the traffic laws relating to roof-mounted spotlights, they come under the regime of the Australian Design Rules. I am told that roads and ports engineers in Newcastle and Sydney confirmed several points. Firstly, they have declared that remote handles could be an issue if they are in the head impact zone. That is covered by section LK, which relates to seating and occupant protection in version 2.0 dated 1 January 2011, and by section LK8 at paragraph 2.4 on page 42/LK76, which covers head space and applies mainly to the use of roll bars in cars but essentially still offers advice for testing to make sure the head impact zone of the vehicle is not compromised. Secondly, in regard to spotlights on roofs, the traffic engineers say they are essentially a searchlight and as per ADR42/04 are totally legal.
My suggestion would be for the relevant officers within the police department to meet with the relevant traffic authorities to clarify the situation regarding roof-mounted spotlights. I have written to the police Minister to seek clarification so that the issue can be dealt with once and for all. I am told that the fines for the so-called illegal spotlights are about $100, so it is no small matter. If the hunters are in the wrong—and I am sure they have not meant to be—they can address the issue. However, if they are in the right and it is the police who are misinterpreting the Australian Design Rules, we need clarification as a matter of urgency. 30492 LEGISLATIVE COUNCIL 13 August 2014
POLITICAL DONATIONS LEGAL CHALLENGE
The Hon. ADAM SEARLE (Deputy Leader of the Opposition) [10.37 p.m.]: I wish to address a matter of current political controversy and some legal debate. The recent ICAC inquiries and Operation Spicer have given rise to some other interesting matters. One of the central personalities now involved in that proceeding has perhaps not coincidentally launched a challenge in the High Court to the validity of parts of the Electoral Funding, Expenditure and Disclosures Act relating to the prohibition of developer donations. There has been some speculation among constitutional lawyers and others as to whether such a challenge may be likely to succeed. Of course, it would be a statement of the obvious that if it were to succeed it would undermine much of the efficacy of current and previous inquiries. Although any declaration of invalidity would affect only the law going forward, it would rob the findings of the ICAC of a lot of their moral force. However, speculating on the outcome of High Court cases is really just like betting on the races.
The Hon. Dr Peter Phelps: Unions NSW is pretty clear.
The Hon. ADAM SEARLE: I acknowledge that, and it is. But it is important to understand why the High Court made the findings it did in that case. If we follow the High Court's reasoning, I do not think the developer donation ban is in fact at real risk of being overturned.
The Hon. Dr Peter Phelps: Really? A big call.
The Hon. ADAM SEARLE: Everyone is entitled to their view. The aim of the electoral funding laws is to regulate the making of political donations to parties, candidates and elected members. The general purpose is to secure and promote the integrity of the Parliament of this State, the Government of the State and local government bodies within the State. In particular, it identifies the potential risk to integrity arising from the exercise of undue, corrupt or hidden influences over those institutions, their members or their processes. It has been determined by the Parliament that the risks to integrity are significantly increased where there is a need to raise large amounts of money to effectively compete with rivals in connection with election campaigns.
The two provisions that were central in the Unions NSW case were section 96D and 95G. The first effectively denied the making of a political donation by anyone other than an elector by prohibiting acceptance of a donation from any source other than an elector on the electoral roll. Section 95G created the aggregation scheme where it assumed that the objectives of all expenditure made by a political party on the one hand and any affiliated organisation on the other—which in practice really meant unions affiliated with the New South Wales Labor Party—are coincident, but it did not reveal how or why they should be treated as being for the one and same purpose. Ultimately the High Court found that both of those provisions were invalid because they unreasonably or impermissibly burdened the implied freedom of political communication.
What is that? In Lange it confirmed that the implied freedom was an indispensable incident of the system of representative government. But it also said it was limited to what was necessary for the effective operation of the system of representative and responsible government provided for in the Constitution. The freedom was not absolute. In APLA Ltd v Legal Services Commissioner the court observed that the freedom was not a general freedom of the kind, for example, found in the United States of America. The point made in both of those cases is that legislation which restricts that freedom will be invalid only where it so burdens freedom that it may be taken to affect the system of government for which the Constitution provides and which depends for its existence upon that freedom. Lange confirmed that if certain conditions were met laws that did provide a burden may nevertheless be valid. The question is: What is that test?
Justice Gaudron in Muldowney proposed that where a curtailment was reasonably capable of being viewed as appropriate and adapted to furthering or enhancing the democratic processes of the States, at least insofar as it did not interfere with the democratic processes of the Commonwealth, that that would be a way to judge whether a law was invalid. The first question posed by Lange is whether the provision effectively burdens the freedom either in its terms, operation or effect. Secondly, if it does, whether the provision is reasonably appropriate and adapted, or proportionate, to serve a legitimate end in a manner which is compatible with the maintenance of the prescribed system of representative government. In that case the government of the day in the High Court was not able to explain to the judges why either of those provisions were reasonably necessary or adapted to addressing the possibility of undue or corrupt influence from being exerted. [Time expired.] 13 August 2014 LEGISLATIVE COUNCIL 30493
STATE CONSERVATION AREAS FORESTRY MANAGEMENT
The Hon. ROBERT BROWN [10.42 p.m.]: The Deputy Leader of the Opposition delivered a riveting speech. I am almost ashamed to butt in on it, but that is what happens when major political parties get into what is, I think in parliamentary terms, a urinating contest.
I refer to the June 2014 Natural Resources Commission Draft Report on Active and Adaptive Cypress Management in the Brigalow and Nandewar State Conservation Areas. This report is the result of the previous Premier asking the commission to undertake the study into an area of about 7.9 million hectares in the north-west of New South Wales, known as the Brigalow and Nandewar Community Conservation Area. This area includes the regional centres of Moree, Narrabri, Tamworth, Gunnedah and Dubbo. Of the total study area, 90 per cent is private land, which is instructive. The commission rightly points out that State conservation areas provide native vegetation habitat for threatened species and support Aboriginal values, certain types of recreation, apiary, and mineral and petroleum exploration and extraction.
It also points out, however, that visitor numbers to State conservation areas are low, and the area available for forestry in the region has declined over time. Several members of this House are well aware of those statistics. The report highlights that the towns of Baradine and Gwabegar are heavily dependent on white cypress pine forestry and are sensitive to changes in this sector. Interestingly, under current New South Wales native vegetation laws, white cypress pine is recognised as an invasive native species and can be cleared or thinned on private and leasehold land to maintain or improve environmental outcomes. Based on its analysis of the area, the commission concludes that about 70 per cent of the State Conservation area is not impacted by large areas of dense white cypress pine, and the remaining 30 per cent has large areas of relatively dense white pine that are potentially impacting on environmental values. That is what happens when cypress pine forests are allowed to lock up, as is the term.
We know that recent studies suggest the extent and density of white pine in the Pilliga region is likely to increase in the future—like hairs on a dog's back—if it is not managed. The commission has suggested active management interventions such as ecological thinning and targeted grazing, in combination with controlled burning and pest management, to maintain and enhance environmental outcomes of these forests. I do not think even The Greens could argue with that—but I bet they will. The outcomes envisaged by the commission include promoting regeneration and growth of trees and shrubs, improving habitat for fauna and promoting viable populations of native fauna and flora species, and promoting diversity by controlling dominant species such as weeds.
Consistent with the principles of adaptive management, the commission has recommended active management be applied in the first instance to four priority State conservation areas—Pilliga, Pilliga West, Goonoo and Trinkey—which contain large areas of white cypress pine. Adaptive management in that case means selective logging. Based on the commission's modelling, ecological thinning in an adaptive management framework could generate thinning residues of up to 14,000 cubic metres of sawlogs per year and up to 23,000 cubic metres of landscaping products per year. The commission sensibly proposes a mix of cost-recovery mechanisms associated with active management, including a "goods for service" approach which is commonly used in America. In addition to providing significant long-term ecological benefits, such a scheme of cost recovery is likely to provide benefits to local timber businesses, households and families, particularly in the communities of Baradine and Gwabegar. Many members of this House have spoken to those people and know what has happened to them.
I welcome the commission's report and urge the Government to adopt its recommendations as a matter of urgency. I give the assurance that the Shooters and Fishers Party will enthusiastically support any legislative measures required. I further suggest that the Government now give the commission a similar brief to look at the River Red Gum forests in the Southern Riverina, as those forests have similar ecological needs of management. If they are not managed an ecological and fire disaster occurs, and already they have proven to be an economic disaster. Those communities, like the Brigalow communities, were severely impacted by legislation that has nothing to do with environmental goals.
DEATH OF SISTER PHILOMENE TIERNAN, RSCJ
The Hon. CATHERINE CUSACK [10.46 p.m.]: As fate would have it, Thursday 17 July fell squarely in the middle of the Netherlands long school summer holidays and at the opposite end of the world marked the second last day of Australia's winter school holidays. That is why so many of the 298 innocent souls 30494 LEGISLATIVE COUNCIL 13 August 2014
who perished with Malaysian Airlines MH17 were children for whom the full richness of life lay ahead: 83 cherished children perished. When the Malaysian plane's journey met an abrupt and tragic end in the skies above the Ukraine, new and dreadful journeys began for those left behind, especially for those who loved them. As each day passed, the number of those aboard became names and nationalities, their shining personal stories emerged and drew us closer to them, and drew Australians closer to each other in collective grief as a nation.
I wish to acknowledge the life of a precious woman aboard that flight, Sister Philomene Tiernan, rscj— which stands for Religieuses du Sacré-Coeur de Jésus, a French order that was founded by St Madeleine Sophie Barat in 1800. There are three Sacré Coeur schools in Australia—Stuartholme in Brisbane, which Sister Tiernan attended as a young boarders in high school; Sacré Coeur in Melbourne, which I always knew as Burke Road; and Kincoppal Rose Bay in Sydney, which my sisters, cousins and I attended in the 1970s as boarders and whose good fortune saw us fall under the care and guidance of Sister Tiernan, who ran the boarding school.
I can only say, together with our school friends from those days, "thank you" to Sister Tiernan for her remarkable influence, the unmistakable mark she made upon each of us and the special memories we have of her, particularly on those nights we found ourselves stricken and homesick, especially in those early weeks and years separated from our parents and unused to communal life. She got us through those very difficult moments, cared for our physical and emotional wellbeing, and maintained a very structured, safe way of life where each student knew they could go to her—even though it was not much fun when she was the one who called for you.
I did some very silly things during those six years, and Sister Tiernan was always very fair. She had the complete respect and trust of every child. Indeed, the only other person I have known to inspire such unambiguous regard is our much-loved Governor, Marie Bashir. Both are extraordinary women in their instinct for compassion and social justice, the clarity of their vision, the way they make each of us feel special—in spite of the fact their example seems so perfect we cannot hope to emulate it, but rather be inspired by it.
I attended the mass for Sister Tiernan at Randwick. Like the others held at Rose Bay, St Mary's Cathedral and in Canberra, it drew a huge congregation—more than 600 on a cold, wet day in Randwick. More events are to be held at the school. Sister Tiernan's family and fellow religious colleagues find themselves ministering to the widespread grief of thousands of young women and their families that she touched, especially in Sydney and rural New South Wales but also across Australia and the world. Sacré Coeur is a very tight-knit family, yet it is strongly international in its focus. It is a privilege to be counted amongst the Sacré Coeur alumnae.
At the conclusion of the mass, the church organ heralded our great hymn, Coeur de Jésus, which unites us all and moves us all to tears as the years vanish and suddenly we are children again, with Sister Tiernan, and everything is going to be alright. She has left behind a large and devastated family, and I thank them for their generosity in sharing their stories of her, particularly as a child and a young novice in the semi-enclosed order at Rose Bay Convent. I cannot imagine the shock and sense of loss being experienced by her fellow religious nuns, who have all been her family and strength for the seven decades of her life. Our thoughts and concerns are especially with them. These women, the like of whom we will never see again, lead exemplary lives, married to God, having renounced all worldly chattels and instead committing themselves to the wellbeing and development of young Catholic girls. It is deeply painful to contemplate the awful loss which they bear with such amazing grace and dignity.
I have not said a great deal about Sister Tiernan's biography. Others who knew her longer and better have spoken so beautifully of a life well lived. Sister Aideen Kinlen, an Irish nun who shared time with Sister Tiernan during her retreat in Joigny, read to her a poem called What Will Matter, by Michael Josephson. She loved it so much she wanted to bring it back to Australia from Amsterdam. To honour Sister Tiernan, I seek leave of the House to incorporate in Hansard the words in that lovely message that she was almost certainly carrying with her on that fateful flight back to Australia.
Leave granted.
What Will Matter
There will be no more sunrises, no minutes, hours or days.
All the things you collected, whether treasured or forgotten, will pass to someone else.
Your wealth, fame and temporal power will shrivel to irrelevance.
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It will not matter what you owned or what you were owed.
Your grudges, resentments, frustrations and jealousies will finally disappear.
So too, your hopes, ambitions, plans and to-do lists will expire.
The wins and losses that once seemed so important will fade away.
It will not matter where you came from or what side of the tracks you lived on at the end.
It will not matter whether you were beautiful or brilliant.
Even your gender and skin colour will be irrelevant.
So what will matter? How will the value of your days be measured?
What will matter is not what you bought but what you built, not what you got but what you gave.
What will matter is not your success but your significance.
What will matter is not what you learned but what you taught.
What will matter is every act of integrity, compassion, courage or sacrifice that enriched, empowered or encouraged others to emulate your example.
What will matter is not your competence but your character.
What will matter is not how many people you knew, but how many will feel a lasting loss when you are gone.
What will matter is not your memories but the memories of those who loved you.
What will matter is how long you will be remembered, by whom and for what.
Living a life that matters does not happen by accident.
It is not a matter of circumstance but of choice.
Choose to live a life that matters.
POLITICAL DONATIONS LEGAL CHALLENGE
The Hon. Dr PETER PHELPS [10.51 p.m.]: In the remaining 82 seconds, I would like to respond to what was said in the speech by the Deputy Leader of the Opposition earlier in this adjournment debate. I think it was a very brave assertion for the member to make that the case before the High Court is likely to go down. I do not make any such assertion or comment on likelihood, but I direct his attention to the ratio particularly in relation to the 96D judgement, which appeared to indicate that the High Court considered that a blanket ban on a cohort of people or potential donors would be found unconstitutional because there are existing provisions in terms of anti-corruption rules in relation to the cap on donations. I go to the judgement itself where it says, in relation to the validity of an anti-corruption measure:
The same cannot be said of section 96D with its wide-ranging prohibition on the sources of donations.
I think that would give fairly clear encouragement to the idea that the likelihood of a blanket ban on cohorts is found invalid.
[Time for debate expired.]
Question—That this House do now adjourn—put and resolved in the affirmative.
Motion agreed to.
The House adjourned at 10.53 p.m. until Thursday 14 August 2014 at 9.30 a.m.
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