26
LEGISLATIVE COUNCIL
Tuesday 23 May 2006 ______
The President (The Hon. Dr Meredith Burgmann) took the chair at 2.30 p.m.
The Clerk of the Parliaments offered the Prayers.
The PRESIDENT: I acknowledge that we are meeting on Eora land.
ASSENT TO BILLS
Assent to the following bills of the previous session reported:
Fisheries Management Amendment Bill Jury Amendment (Verdicts) Bill Protection of the Environment Operations Amendment (Waste Reduction) Bill Air Transport Amendment Bill Appropriation (Budget Variations) Bill Courts Legislation Amendment Bill Education Legislation Amendment (Staff) Bill Workers Compensation Legislation Amendment Bill
RESTORATION OF BUSINESS OF THE PREVIOUS SESSION
Legislative Assembly Bills
The PRESIDENT: I report the receipt of the following message from the Legislative Assembly:
MADAM PRESIDENT
The Legislative Assembly informs the Legislative Council that it has this day agreed to the following resolution:
That the following bills forwarded to the Legislative Council for concurrence during the first session of the present Parliament and not dealt with because of prorogation be restored to the Council's business paper:
Crimes Amendment (Organised Car and Boat Theft) Bill Crimes (Sentencing Procedure) Amendment Bill Electricity Supply Amendment (Protection of Electricity Works) Bill Independent Commission Against Corruption Amendment (Operations Review Committee) Bill Legal Profession Amendment Bill Local Government Amendment (Miscellaneous) Bill Totalizator Legislation Amendment (Inter-jurisdictional Processing of Bets) Bill
Legislative Assembly JOHN AQUILINA 22 May 2006 Speaker
Motion, by leave, by the Hon. John Della Bosca agreed to:
That the bills be restored to the Notice Paper and that the second readings of the bills stand as orders of the day for a later hour of the sitting.
LAW OF EVIDENCE BILL (pro forma)
Bill presented and read a first time.
TEMPORARY CHAIRS OF COMMITTEES
The PRESIDENT: I nominate the following honourable members to act as Temporary Chairs of Committees during the present session: the Hon. Greg Donnelly, the Hon. Patricia Forsythe, the Hon. Jennifer Gardiner, the Hon. Kayee Griffin, Reverend the Hon. Fred Nile, the Hon. Christine Robertson and the Hon. Penny Sharpe. 23 May 2006 LEGISLATIVE COUNCIL 27
DEATH OF THE HONOURABLE BERYL ALICE EVANS, A FORMER MEMBER OF THE LEGISLATIVE COUNCIL
The PRESIDENT: I report the death on 16 May of the Hon. Beryl Alice Evans, aged 84 years, a member of this House from 1984 to 1995. On behalf of members of the House I have extended to her family the deep sympathy of the Legislative Council in the loss sustained.
Members and officers of the House stood in their places.
AUDITOR-GENERAL'S REPORT
The Clerk announced the receipt, pursuant to the Public Finance and Audit Act 1983, of the report entitled "Financial Reports: Volume Two 2006", dated May 2006.
The Clerk announced further that it had been authorised that the report be printed.
LEGISLATION REVIEW COMMITTEE
Report
The Clerk announced the receipt, pursuant to the Legislation Review Act 1987, of the report entitled "Legislation Review Digest No. 7 of 2006", dated 19 May 2006.
The Clerk announced further that it had been authorised that the report be printed.
JOINT SELECT COMMITTEE ON THE CROSS CITY TUNNEL
Report: The Cross City Tunnel and Public Private Partnerships: Second Report
The Clerk announced the receipt, pursuant to the resolution of 15 November 2005, of the report entitled "The Cross City Tunnel and Public Private Partnerships: Second Report", dated May 2006.
The Clerk announced further that, pursuant to the resolution, it had been authorised that the report be printed.
Reverend the Hon. FRED NILE [2.38 p.m.]: I move:
That the House take note of the report.
As members know, the cross city tunnel inquiry included also a reference to public-private partnerships. This report deals mainly with that aspect. As some progress had been made with the cross city tunnel and as the Government had adopted some recommendations with regard to it, the committee reviewed matters that were applicable to the cross city tunnel.
The second report examined the role of New South Wales government agencies in public-private partnerships more generally and expanded upon the recommendations in the first report. We examined cross city tunnel developments since the committee's first report, which have gone some way towards addressing the concerns identified. A number of further recommendations responding to these developments have been made.
The committee found that public-private partnerships fill a small but significant niche in the provision of public infrastructure in New South Wales, with between 10 per cent and 15 per cent of the State's capital program being delivered through such arrangements. It is crucial that the Government addresses public mistrust of private involvement in the provision of public infrastructure and services. To that end the focus of the recommendations in this report has been on improving the transparency of public-private partnership arrangements. We recommended that documents such as the public sector comparator and the base case financial monitor be publicly available. We put the onus on the Government to make these complex contractual relationships and the rationale for entering into them easily accessible and understood by the community they are intended to serve.
The committee's work is continuing with the expansion of the terms of reference to include the Lane Cove project currently under construction. The committee will report on its finding in relation to the Lane Cove 28 LEGISLATIVE COUNCIL 23 May 2006 tunnel in September 2006. It has advertised for submissions and has already prepared a list of witnesses to be heard on 14, 15 and 16 June—three days of sitting. I would like to thank members of the committee for their continuing efforts during the second part of inquiry. I thank, in particular, the committee secretariat, Laura Milkins, Natasha O'Connor, Annie Marshall, Stephen Frappell, Victoria Pymm and Simon Johnston, and Stewart Smith of the Parliamentary Library Research Service, for their hard work. I take this opportunity to also thank the former committee director, Rachel Simpson, who has moved on to the Attorney General's Department, for her work on this and previous committee inquiries.
Debate adjourned on motion by Reverend the Hon. Fred Nile.
LANE COVE TUNNEL
Production of Documents: Further Return to Order
The Clerk tabled, pursuant to the resolution of 3 May 2006, documents relating to a further order for papers regarding the Lane Cove Tunnel received on 17 May 2006 from the Director General of the Premier's Department, together with an indexed list of documents.
Production of Documents: Claim of Privilege
The Clerk tabled a return identifying those of the documents that are claimed to be privileged and should not be tabled or made public. The Clerk advised that pursuant to standing orders the documents are available for inspection by members of the Legislative Council only.
BROADACRE PROJECT
Productions of Documents: Return to Order
The Clerk tabled, pursuant to the resolution of 3 May 2006, documents relating to the Broadacre project received on 17 May 2006 from the Director General of the Premier's Department, together with an indexed list of documents.
Production of Documents: Claim of Privilege
The Clerk tabled a return identifying those of the documents that are claimed to be privileged and should not be tabled or made public. The Clerk advised that pursuant to standing orders the documents are available for inspection by members of the Legislative Council only.
SYDNEY HARBOUR DIOXIN LEVELS
Production of Documents: Return to Order
The Clerk tabled, pursuant to the resolution of 3 May 2006, documents relating to dioxin levels in Sydney Harbour received on 17 May 2006 from the Director General of the Premier's Department, together with an indexed list of documents.
Production of Documents: Claim of Privilege
The Clerk tabled a return identifying those of the documents that are claimed to be privileged and should not be tabled or made public. The Clerk advised that pursuant to standing orders the documents are available for inspection by members of the Legislative Council only.
POWERCOAL ASSETS SALE
Production of Documents: Return to Order
The Clerk tabled, pursuant to the resolution of 3 May 2006, documents relating to the sale of Powercoal assets received on 17 May 2006 from the Director General of the Premier's Department, together with an indexed list of documents. 23 May 2006 LEGISLATIVE COUNCIL 29
Production of Documents: Claim of Privilege
The Clerk tabled a return identifying those of the documents that are claimed to be privileged and should not be tabled or made public. The Clerk advised that pursuant to standing orders the documents are available for inspection by members of the Legislative Council only.
ACMENA JUVENILE JUSTICE CENTRE INCIDENT
Production of Documents: Return to Order
The Clerk tabled, pursuant to the resolution of 3 May 2006, documents relating to an incident at Acmena Juvenile Justice Centre received on 17 May 2006 from the Director General of the Premier's Department, together with an indexed list of documents.
TARIRO UNIT METRO WEST RESIDENCES, WESTMEAD, CLIENTS ABUSE ALLEGATIONS
Production of Documents: Claim of Privilege
The Clerk tabled, pursuant to the resolution of 4 May 2006, a return identifying documents received on 18 May from the Director General of the Premier's Department that are claimed to be privileged and should not be tabled or made public. The Clerk advised that pursuant to standing orders the documents are available for inspection by members of the Legislative Council only.
YASMAR JUVENILE JUSTICE CENTRE SITE USE
Production of Documents: Return to Order
The Clerk tabled, pursuant to the resolution of 4 May 2006, documents relating to Yasmar, Haberfield, received on 18 May 2006 from the Director General of the Premier's Department, together with an indexed list of documents.
Production of Documents: Claim of Privilege
The Clerk tabled a return identifying those of the documents that are claimed to be privileged and should not be tabled or made public. The Clerk advised that pursuant to standing orders the documents are available for inspection by members of the Legislative Council only.
STRATHALLEN SITE SALE
Production of Documents: Return to Order
The Clerk tabled, pursuant to the resolution of 4 May 2006, documents relating to Strathallen, Goulburn, received on 18 May from the Director General of the Premier's Department, together with an indexed list of documents.
LANE COVE TUNNEL
Production of Documents: Dispute of Claim of Privilege and Report of Independent Legal Arbiter
The PRESIDENT: I inform the House that on Thursday 20 April 2006 I received from the Hon. Duncan Gay a written dispute as to the validity of a claim of privilege on documents lodged with the Clerk on Wednesday 22 March 2006 relating to a further order for papers regarding the Lane Cove tunnel. According to standing orders Sir Laurence Street, being a retired Supreme Court Judge, was appointed as an independent arbiter to evaluate and report as to the validity of the claims of privilege. The Clerk released the disputed documents to Sir Laurence Street, who has now provided his report to the Clerk. The report is available for inspection by members of the Legislative Council only. 30 LEGISLATIVE COUNCIL 23 May 2006
PETITIONS
Batemans and Port Stephens Marine Parks
Petition opposing the creation of the Batemans and Port Stephens marine parks until the fishing industry and the community are adequately consulted, a socio-economic study is undertaken, and real data on endangered species is made available, received from the Hon. Robyn Parker.
Snowy Hydro Limited Sale
Petitions calling for a plebiscite to be held at the same time as the State election in March 2007 to gauge public opinion on the sale of Snowy Hydro Limited, received from Ms Sylvia Hale and the Hon. Melinda Pavey.
NOTICES OF MOTIONS
Motion by the Hon. John Della Bosca, by leave, agreed to:
That for today's sitting of the House members may give notices of motions by delivering a signed copy to the Clerks at the table and that such notices will be entered by the Clerks on the Notice Paper in random order.
The PRESIDENT: For the information of honourable members, I advise that I intend to follow the procedure adopted last session—that is, when members seek the call for notices, to allow only one General Business Notice of Motion to be given by a member on each call from the Chair. This practice will not apply to Ministers or to members giving contingent notices of motion. The Chair will continue to recognise the Leader of the Opposition first after Ministers, but will then give the call to Government, Opposition and crossbench members until all notices have been given.
SESSIONAL ORDERS
The Hon. JOHN DELLA BOSCA (Minister for Finance, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, and Vice-President of the Executive Council) [2.53 p.m.], by leave: I move:
That the following sessional orders be adopted:
(1) Sitting Days
That, during the present session and unless otherwise ordered, this House meet for the despatch of business each week as follows:
Monday 11.00 am Tuesday 2.30 pm Wednesday 11.00 am Thursday 11.00 am Friday 11.00 am.
(2) Precedence of Business
That, during the present session and unless otherwise ordered:
1. Government Business is to take precedence of General Business on Monday, Tuesday, Wednesday and Friday, and after 5.00 pm on Thursday each week.
2. General Business is to take precedence until 5.00 pm on Thursday each week.
(3) Questions—Time for Questions without Notice
That, during the present session and unless otherwise ordered:
1. Questions are to commence at 4.00 pm on Monday and Tuesday, and at 12.00 noon on Wednesday, Thursday and Friday.
2. Whenever the House adjourns to a day and time later than the time appointed in paragraph 1, Questions are to commence 30 minutes after the time appointed for the meeting of the House.
3. If, at the time for interruption: 23 May 2006 LEGISLATIVE COUNCIL 31
(a) a division is in progress, the division is to be completed and the result announced,
(b) the House is in Committee of the Whole, the Chairman is to leave the Chair and report progress,
and any business then under discussion, if not disposed of, is to be set down on the Notice Paper for a later hour of the sitting.
(4) Motion for Adjournment
That, during the present session and unless otherwise ordered:
1. On any motion for adjournment to terminate a sitting:
(a) the question is to be put not later than 30 minutes after the motion has been moved or, when a Minister desires to speak or is then speaking, at the conclusion of the Minister’s remarks,
(b) any member may speak for 5 minutes on matters not relevant to the Motion, but must not refer to matters which are otherwise not in order.
2. Proceedings must be interrupted at 5.00 pm on Thursday and 3.45 pm on Friday to permit a Motion for adjournment to be moved to terminate the sitting if a Minister thinks fit.
3. If, at the time of interruption:
(a) a division is in progress, the division is to be completed and the result announced,
(b) the House is in Committee of the Whole, the Chairman must leave the Chair, report progress and seek leave to sit again.
4. When any business under discussion, if not disposed of, is interrupted under this sessional order, the debate is to stand adjourned and be made an Order of the Day for the next sitting day at the end of Government or General Business, as the case may be fixed for that day, but so as not to preclude the operation of Standing Order 67, unless a motion is moved without amendment or debate for the adjournment of the debate to a day to be stated.
(5) Debate on Committee Reports
That, during the present session and unless otherwise ordered, debate on Committee reports is to take precedence after questions on Wednesdays.
These sessional orders are the same in substance as those adopted last session, and copies have been circulated to members.
Motion agreed to.
RESTORATION OF BUSINESS OF THE PREVIOUS SESSION
Questions On Notice
The Hon. DON HARWIN [2.54 p.m.], by leave: I move:
That notwithstanding anything contained in the standing orders or the prorogation of the House on Friday 19 May 2006:
(a) All written questions remaining unanswered as at the prorogation of the House on Friday 19 May 2006 be restored to the Questions and Answers paper, and
(b) Answers to questions on notice be provided within 35 calendar days after the question was first published as if prorogation had not intervened.
Briefly, the sole purpose of the prorogation of the Parliament was to allow us to mark the sesquicentenary of responsible government in a fashion in this Chamber yesterday. I do not believe that action has set a precedent; the reason for the prorogation was limited. Therefore, I think this motion is appropriate, and is widely supported by honourable members.
Motion agreed to. 32 LEGISLATIVE COUNCIL 23 May 2006
ELECTRICITY SUPPLY AMENDMENT (PROTECTION OF ELECTRICITY WORKS) BILL
Second Reading
The Hon. MICHAEL COSTA (Treasurer, Minister for Infrastructure, and Minister for the Hunter) [2.56 p.m.]: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
The amendments in this Bill arise from the need to protect existing electricity infrastructure.
Electricity works in New South Wales are owned by the three electricity network operators: Country Energy, Energy Australia and Integral Energy.
Around 44 per cent of the electricity network in New South Wales was built decades ago on land over which network operators now do not have a formal easement or ownership.
During this time electricity distribution was undertaken by county councils, under local government control.
Under the local government laws in place at the time, these councils had the power to undertake works on private land with the consent of the owner, without having an easement or other interest over the property.
These laws were widely relied upon by councils to construct electricity works on private land at a reduced cost, to benefit local communities.
The rapid extension of the electricity network throughout this time delivered enormous benefits to residents and businesses across the state.
Landholders generally welcomed the extension of electricity infrastructure over their land, as it allowed the area to be powered for the first time.
Easements were rarely negotiated or registered as this would have added time and cost to the process of providing new electricity supplies. At the time, it seemed unthinkable that a landholder would object to the benefits of electricity connection.
Generally speaking, the existing infrastructure was constructed with the original landholders' consent, and has remained visible to the subsequent purchasers of that land.
Owner consent to the presence, operation and use of electricity works on private land does not, however, legally bind subsequent purchasers of the property, despite the fact that they have paid a reduced price for the property.
Today we live in a more litigious society, and the former legal regime has been forgotten.
There is a real risk that opportunistic individuals may jeopardise the future of electricity infrastructure by taking legal action in relation to the presence of electricity infrastructure on their land.
Such actions may be commenced, even where the original landholder gave consent to the installation of the equipment.
Other States in Australia have passed legislation in the past 10 years to protect electricity works on land over which network operators hold no formal interest. It is appropriate that New South Wales does the same.
Electricity is an essential service. Electricity infrastructure requires the benefit of solid legal protection to ensure that power can be practically and affordably provided to homes and businesses across New South Wales.
Without such protection investments in electricity infrastructure could be put at risk.
In most cases, network operators have been operating these electricity works for decades. The long-term use of these works, combined with the statutory rights and responsibilities of network operators to operate, maintain and repair essential electricity infrastructure, may provide a defence to any legal action.
This, however, is by no means certain.
There is no clear provision in the Electricity Supply Act to protect the presence, operation and use of electricity works on land not owned by the network operator.
This ongoing uncertainty needs to be addressed in order to protect the public interest in a safe and reliable supply of electricity at affordable prices.
Section 53 amends the Electricity Supply Act so that no legal proceedings may be taken against network operators due to the presence, operation or use of pre-existing electricity works on land not owned by the network operator. 23 May 2006 LEGISLATIVE COUNCIL 33
This provision will prevent actions in trespass or nuisance being taken against network operators for the presence, operation or 'use of electricity works on land that they do not own.
This protection applies only to pre-existing electricity works and any works subsequently erected on the same site to repair, replace, modify or upgrade those works.
Network operators will be required to obtain formal easements, and compensate landholders in accordance with the Land Acquisition (Just Terms Compensation) Act, if they wish to protect future electricity works constructed on private land.
This will provide certainty for both landholders and network operators.
Actions in negligence against network operators are expressly preserved by the Bill.
The Bill does not seek to discontinue or affect any legal proceedings already commenced against network operators, except to prevent the Court from making an order requiring a network operator to remove electricity works.
This provision will help ensure the security and reliability of supply of electricity for residential and business customers who are not party to these proceedings.
The Bill also clarifies the power of a network operator to remove dangerous structures that interfere with its electricity works.
Currently, section 49 of the Electricity Supply Act enables network operators to take action to remove structures that endanger their electricity works. Under the existing provisions, the cost of carrying out the work and repairing any damage to the electricity works is borne by the owner of the dangerous structure, not the network operator.
The Bill amends section 49 to ensure that network operators may remove dangerous structures, even if the electricity works are situated on land owned or occupied by the person having control of the structure.
This will ensure that network operators can take action to remove structures that pose safety risks to the public.
Where the electricity structure is covered by section 53, network operators will be required to pay for the removal of these structures, as long as they were lawfully installed before these amendments commence. The network operator will also be required to pay for the removal of structures built by a landowner after these amendments commence, where the structure was built with the agreement of the network operator.
The Bill also expressly provides that, in the above circumstances, the network operator must compensate the owner of the structure for any loss or damage arising from its removal.
These amendments to section 49 of the Electricity Supply Act will ensure that electricity works are protected from dangerous hazards in a fair and equitable manner.
I trust Honourable members will support the protection of existing electricity infrastructure that is provided by this Bill.
I commend the Bill to the House.
The Hon. DON HARWIN [2.56 p.m.]: I lead for the Opposition on the Electricity Supply Amendment (Protection of Electricity Works) Bill. From the outset I indicate that we shall not support the bill. While the bill's objectives are sound, this tired, old Labor Government is once again pushing legislation through the Parliament without providing sufficient information to stakeholders and the broader community. The purpose of the bill is to provide protection for electricity works that currently exist on land that is not owned by the network operators. Several decades ago the extension of the electricity network was undertaken by county councils, which operated under the supervision of local government. At that time these councils were empowered to establish, operate and access electricity works on private land if they had the consent of the owner of that land. It was not necessary for these councils to have an easement or any other interest over the property. This arrangement benefited both the landholders and the county councils.
By avoiding the need to negotiate and register easements, it was possible to introduce power to rural areas more quickly and more cheaply. As the arrangements about the presence and operation of electricity works on private land were never formalised, there is now an unwelcome level of uncertainty surrounding the network. According to the Government, approximately 44 per cent of the electricity network in New South Wales today is on privately owned land, much of it in rural areas. There is no clear provision in the Electricity Supply Act to protect the presence, operation and maintenance of these electricity works, and owner consent does not legally bind subsequent purchasers of a property. Given the importance of electricity supply, there is a compelling need for the arrangements between the network operators and landowners to be clarified. Uncertainty jeopardises investment, and, as honourable members should already be aware, this State desperately needs investment in our electricity infrastructure.
Currently New South Wales energy companies produce around 12,800 megawatts of electricity per year. In peak periods demand for electricity in our State exceeds that capacity and we must rely on power 34 LEGISLATIVE COUNCIL 23 May 2006 generated from interstate and from the Snowy Hydro scheme. Forecasts indicate that by 2008-09 there will be electricity generation shortfalls unless the increased generation capacity is brought online. If these shortfalls occur, New South Wales will suffer major blackouts.
We cannot afford to put further investment in the electricity network at risk. Currently landowners who have purchased property where electricity infrastructure already exists could take legal action against the network operators over the use of the electricity works or over the issue of gaining access to them. The legal protection afforded by clear, legislated arrangements would assist the network operators to attract and secure investment by removing the threat of such litigation. Purchasers of private land on which electricity works already exist should be bound by the arrangements agreed to between network operators and previous landowners.
Private landowners also deserve certainty regarding the obligations of network operators. The cost of trimming trees or removing structures that hinder the operation of the electricity works or obstruct access to them for the purposes of operational maintenance should be borne by the network operators themselves and not the landowners. It would be helpful for the Act to be amended to clarify this responsibility. In his second reading speech in the other place the Minister noted that over the past decade other States have passed similar legislation to bring clarity to the industry in their jurisdictions. This makes me wonder why the Government did not address the problem earlier. For example, in the first weeks of May last year we were debating the Government's Electricity Supply Amendment Bill 2005, which provided a bundling together of miscellaneous amendments. Why did the Government not include in that bill the amendments we are debating today?
Despite the fact that the Government must have been aware of the current unsatisfactory situation for quite some time, this bill has come before Parliament without sufficient information. For example, I note that a set of maps or even a list of the affected areas could not be supplied to the shadow Minister in the other place, the honourable member for Southern Highlands, upon request. On the basis of the information supplied by the Government thus far, the Opposition cannot support the bill. The Opposition has been advised that not all the areas and properties subject to this legislation have been surveyed, and that while the various energy network operators apparently hold all the relevant information at an operational level, the Government is not prepared to draw the information together. This inaction prevents the Opposition from consulting with affected landowners and local government representatives about the scope and impact of the legislation.
Earlier I stated that it is believed that 44 per cent of current electricity works are located on privately owned land over which network operators have no easement or interest. In the absence of a proper, comprehensive survey of affected areas the Government arrived at this figure by undertaking a few pilot surveys in selected areas. Rather than being a precise and accurate figure, the quoted 44 per cent is an extrapolation. The precise extent to which current electricity works are impacted by the situation that the legislation seeks to resolve is unknown. It may be more than 44 per cent; on the other hand it may be less. This is another case of the Government failing to complete adequate research before introducing legislation. It is also yet another example of an unsatisfactory level of consultation with stakeholders. Without a comprehensive list of affected properties the Government cannot have consulted properly with landowners.
Another concern the Opposition has with the bill relates to its impact on the Government's approach to easements for infrastructure. While the bill seeks to clarify current uncertainty that has arisen from past policy, the Government is yet to address the bill's potential impact on future policy. Will the bill make the Government less likely to develop new easements for future infrastructure in new public areas? Will the bill have the unintended consequence of entrenching a policy of invasive infrastructure works on private land?
The Legislation Review Committee also had reservations about the bill, and I am sure members of that committee will draw their concerns to the attention of the House. For example, the legislation prevents legal action from being taken against a network operator by providing that the presence, operation and use of the electricity works on privately owned land are lawful. While civil liability for negligence is maintained, the bill denies action against network operators by the landowner or occupier on the ground of nuisance. That is obviously a matter of some concern. A nuisance, such as a noxious smell or a loud noise, is usually created by a person on his or her own property, and it then impacts on the rights of an adjoining landowner or occupier. The Legislation Review Committee noted:
Such an interference may be constituted by the activities of another on land actually owned by the person so affected, provided that the wrongdoer has permission to be there. 23 May 2006 LEGISLATIVE COUNCIL 35
The committee reported that the breadth of the term "operation or use" in the bill may ultimately cover a nuisance to the landowner for which the network operator would ordinarily be liable. Consequently, the committee formed the view that the bill "constitutes a trespass on the common law right of a landowner or occupier to seek redress for the nuisance-making actions of a network operator". All honourable members should take heed of that finding. The Opposition has significant reservations about this limitation of an individual landowner's rights to seek judicial redress for nuisance on their own land. The majority of landowners impacted by the legislation are farmers in regional areas, and we need more detailed justification than has been provided before we move to curtail their common law rights.
Securing the future of a reliable and affordable electricity service in New South Wales should be a priority for this Government. For years, however, there has been a woeful neglect of our electricity infrastructure, and this neglect is all the more shameful given the enormous revenue windfalls that the State Government has reaped in dividends. For example, in 2003-04 the average household in New South Wales had its annual energy bill increased by about $73 a year. In the same year Integral Energy, EnergyAustralia and Country Energy paid a whopping $441 million to the Labor State Government in dividends and tax payments. It is time this Government took meaningful action to secure the future of our State's energy needs. Significant investment in electricity infrastructure in next month's budget would be a desirable step. Another would be amendments to this flawed bill that strike a better and more equitable balance between the obligations of network operators and the common law rights of landowners and occupiers.
Reverend the Hon. Dr GORDON MOYES [3.07 p.m.]: On behalf of the Christian Democratic Party I speak to the Electricity Supply Amendment (Protection of Electricity Works) Bill. The object of the bill is to protect the presence, operation and use of pre-existing electricity works. As has been explained by the Hon. Don Harwin, county councils and local government entities initially governed the establishment and maintenance of electricity infrastructure in New South Wales. The process involved in the setting down of this infrastructure was far less complicated than it would be today. Under the local government legislation at the time, councils had the power to undertake works on private land with the consent of the owner without obtaining a formal legal right over the land on which that work was to be undertaken.
Given the essentiality of electricity services, owners of the land were generally very much in agreement with the work being done and any such infrastructure that was intended to be constructed would generally be consented to by the owners. The mutual benefits were evident. Thus, there was no artificial transfer of land to the governing entities, nor were there any easements or rights of way legally recognised for the electricity providers at the time. Providing legal protection would have added time and cost to the process of providing new electricity supplies. I remind honourable members that this was before we had privatisation of electricity supply and the establishment of a diverse group of suppliers. It is important to point out, as stated in the second reading speech in the other place, that:
Owner consent to the presence, operation and use of electricity works on private land does not, however, legally bind subsequent purchasers of the property, despite the fact that they may have paid a reduced price for the property.
The bill seeks to pre-empt any litigation that may arise out of this circumstance by disposing of any possibility that landowners may have to seek legal recourse to assert compensation for pre-existing electricity infrastructure on their land. Currently electricity works in New South Wales are owned by three electricity network operators: Country Energy, EnergyAustralia and Integral Energy. The Electricity Supply Act 1995 does not provide any specific protection for the presence, operation and use of electricity works on land not owned by the network operator. Given the obvious widespread nature of pre-existing electricity infrastructure, any litigation that may arise from the position of this infrastructure on private land may detract from the service that network operators provide consumers. Notably, however, it is not clear how much land would potentially be affected by this amendment to electricity legislation. It would be of interest to find out the potential scope of this issue.
The bill amends the Electricity Supply Act 1995 to provide that no legal proceedings may be taken against network operators due to the presence, operation or use of pre-existing electricity works on land not owned by the network operator. Actions in negligence will be exempted from this protection. It is of utmost importance to understand that this protection will only apply to pre-existing electricity works. Any works subsequently erected on the same site to repair, replace, modify or upgrade those works will also be catered for by the legislation. Network operators will be required to obtain formal easements if they wish to protect future electricity works constructed on private land. This will need to be done in accordance with the Land Acquisition (Just Terms Compensation) Act, whereby compensation will be provided for private landowners that are affected by any future electricity works. 36 LEGISLATIVE COUNCIL 23 May 2006
The Government has indicated that all other States in Australia have passed legislation to provide some form of statutory right for network operators to locate electricity works on land over which they have no formal interest. This legislation follows suit. The bill clarifies that a network operator may require the removal of a structure that interferes with the safe operation of electricity works, where the electricity works are located on land owned or occupied by the person having control of the structure. The bill also provides that the cost of removal of the structure, and compensation payable to the owner for any consequential loss or damage, is to be borne by the network operator in most cases—essentially where the structures are erected with the knowledge or acquiescence of the network operator. The bill does not seek to discontinue or affect any legal proceedings already commenced against network operators, except to prevent the court from making an order requiring a network operator to remove electricity works. On behalf of the Christian Democratic Party I commend the bill to the House.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [3.12 p.m.]: The Electricity Supply Amendment (Protection of Electricity Works) Bill amends the Electricity Supply Act 1995 to clarify the powers of a network operator with respect to the removal of dangerous structures or things from land on which certain electricity works are situated. Currently, section 4 of the principal Act enables a network operator to take action to remove structures or things which endanger its electricity works, could destroy, damage or interfere with those works, or could make those works become a potential cause of bushfire or a potential risk to public safety. For example, an operator can remove branches from overhanging trees, or remove old and dilapidated man-made structures that have the potential of hitting wires or poles.
The bill allows such action to be taken even if the works concerned are situated on land owned or occupied by the person having control of the relevant structure or thing. It will give an electricity operator power over easements or right of access to land that follows the footprint of the operator's wires or asset. The bill's provisions specify circumstances in which the costs of removing any dangerous structure are payable by the relevant network operator and the relevant network operator is liable for loss or damage suffered by the owner of any structure or thing as a result of its removal. In his second reading speech the Minister said:
Around 44 per cent of the electricity network in New South Wales was built decades ago on land over which network operators now do not have a formal easement or ownership. During this time county councils, under local government control, undertook electricity distribution. Under the local government laws in place at the time, these councils had the power to undertake works on private land with the consent of the owner without having an easement or other interest over the property. Owner consent to the presence, operation and use of electricity works on private land does not, however, legally bind subsequent purchasers of the property, despite the fact that they have paid a reduced price for the property.
With the development of the National Electricity Market—the market consolidation of retailers and operators by the introduction of retail contestability—legal clarification or tidying up is needed so that network staff of Country Energy can gain access to infrastructure to ensure these assets are supplying electricity to their clients. Country Energy is an amalgamation of more than 20 county councils. I am advised that Country Energy has about 700,000 network customers and that it estimates about 150,000 or 20 per cent of them are rural properties. One-third to one-half of those properties—50,000 to 75,000—may have a powerline without an easement.
Proposed section 53 (2) prevents any legal action from being taken against a network operator by reason of the presence, operation or use of electricity works, and states that as between the owner of the land and the network operator such presence, operation and use is taken to be lawful. However, any civil liability for negligence that may arise from the operation, use, maintenance, repair, replacement, modification, upgrade or removal of any such works is maintained in proposed section 53 (3). Proposed section 49 (9) provides that the network operator must bear the cost of removing the structure or thing and is liable to the owner of the structure or thing for any loss or damage suffered by the owner as a consequence of its removal.
A network operator that is required to obtain formal easements will have to compensate landholders in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 if it wishes to protect future electricity works constructed on private land. I presume a network operator will have to purchase land or easements for new lines. I have some concerns about that provision. The Government has advised my office that the "footprint" is the defining factor in terms of the limit of access and scope on the ground. That may be acceptable when feeding electricity into a house. But in order to protect powerlines erected on a corridor of land from falling trees, the footprint would have to extend beyond merely the line or lines.
About five years ago TransGrid hired contractors to clear a huge swathe of our State's forests in the Brindabella and Kosciuszko national parks, the Bimberi Nature Reserve and on private lands in the Brindabella Valley. Honourable members may recall that a parliamentary inquiry was held into that irresponsible land 23 May 2006 LEGISLATIVE COUNCIL 37 clearing and compensation was payable by the company. I seek assurances from the Government that such a situation will not happen again. The Opposition said it is concerned that the Government cannot supply a map of the affected areas for its consideration. On the basis of information supplied by the Government—that is, that it could not provide such maps—the Opposition said it cannot support the bill.
In my past life whilst working at Sydney Water I took an interest in the development of the organisation's computerised mapping systems. Previously, the water service and drainage maps had been drawn on paper and were considerably modified because valves were often moved to allow for the construction of driveways and garages as properties were developed or altered. The removal of valves and, indeed, the course of mains were not recorded on the maps and were known only to the water service operators. This made the operator's work a black art. With the transfer of the maps onto computer, which was a major project that took several years and a great deal of effort, the computer maps were sometimes wrong.
The object of computerised maps was to enable Sydney Water to employ smaller gangs. The gangs, who did not have local knowledge, could follow the computer mapping. As a general downsizing of the work force occurred, the water service operators remained employed because of their knowledge of the location of valves that were not on the computer mapping system. Memorably, about 15 hours after the sacking of all the water service operators at 5 o'clock one Friday afternoon, a water main broke in the Redfern area. The on-call staff, who had not been properly trained, were nonplussed about what to do and, over a considerable period, half of Redfern flooded.
I understand that mains will burst if water is turned on to a critical level. Water hammers are created, which leads to surging water, which in turn causes the mains to rupture. It was suggested that the water service operators had done that deliberately in response to their being made redundant. Be that as it may, the paper records were incomplete and the mapping is a long, detailed and difficult task. It was being done in the metropolitan area, but the idea that every power pole in New South Wales could be mapped by a far smaller work force over a far greater area was a very large ask, particularly given that the paper records were widely disseminated and probably extremely variable in quality.
Sydney Water had a department called Building Over Sewers, which kept very careful records of who built what over sewers so that their capacity was not impaired. Obviously, if one is to look after the integrity of electricity lines anything built or planted close to the poles may be very important. I have taken an interest in farming and I am well aware of the difficulty of having power poles crossing a field. When ploughing, a farmer using a large header may have to go around the poles and in the process may wreck the furrows, which could make cropping more difficult. However, the poles have obviously been there for a long time and presumably were there when the land was purchased.
I note that the Government has not yet said whether any legal action has been taken about existing power poles. I believe the power poles will be grandfathered because the legislation is not retrospective. It will be interesting to see whether that is the case. A large amount of money was spent to provide mains electricity in the bush. That initiative was implemented partly for the good of rural people and partly to maintain the workload of county councils. The councils did not care whether the demand for electricity justified the cost of the lines; they were simply building them because they were being paid to do so. Many of the lines being built would probably not be economic if they were to be built now, and they may not even be economic to maintain. If the cost is kept down by legislation such as this, it may give more mains access security to more distant properties.
However, if someone finds that a line crossing their property is inconvenient and wants the Government to get rid of it, that might adversely affect those distal to the dispute, that is, those further downstream. In a sense, supporting the bill provides security to people at the end of the line when a line crosses land owned by someone else. We will be imposing on some farmers but possibly helping others. If stand-alone powerlines are uneconomic, they will not be installed. Some Australian Democrats members have consultancies involved in installing stand-alone power systems for rural consumers at minimal cost and with maximum reliability. Obviously, while stand-alone power is good, it is harder to establish than mains power, if it is available. It is true that subcontractors have irresponsibly cleared land and that action was taken in response to the last event. I hope the Government and Country Energy will not do anything like that again. Under the existing rights for damages in tort, if something so irresponsible is done again, legal action can be taken regardless of the bill. That is certainly the way I read the bill.
Given that we could be preserving the power supply of those whose supply may otherwise be uneconomic, and that hopefully the Government will take heed of the fuss in the Brindabella Ranges and 38 LEGISLATIVE COUNCIL 23 May 2006
Kosciuszko National Park and the irresponsible actions of the subcontractor, the bill probably deserves support. There is also a worry that litigation can become very complex in this area, and if that can be avoided that is very good. Another danger that should be recognised is that it may be in Country Energy's interests to clear large areas around the lines because it now has so few staff that blackouts tend to last far longer when lines go down. Staff numbers in regional areas are far lower than they were and as a result the ability to do repair work after a storm when lines have been blown down is much diminished, and, of course, that causes a ruckus.
It would be better to chop down all the trees near the lines so they do not blow over rather than leave them in place and hope they will not damage the lines later. In other words, prevention measures undertaken by a contractor would be cheaper than leaving dangerous trees in place and trying to fix the damage if they blow down in a critical situation. However, there is a danger that Country Energy will aggressively clear along the lines, and that is a worry. On balance, the bill protects the interests of people further down the line, and we can only hope that it will be used responsibly and that a good outcome will be achieved.
Mr IAN COHEN [3.28 p.m.]: On behalf of the Greens I speak to the Electricity Supply Amendment (Protection of Electricity Works) Bill. I have some difficulty in supporting the bill and I recommended that the Greens oppose it. While on its face the bill seems innocuous enough, it gives more power to electricity corporations and takes power away from individual landowners, mostly in rural areas. It amends the Electricity Supply Act to ensure that legal proceedings cannot be taken against network operators due to the presence, operation or use of existing electricity works on land that is not owned by the network operator. I understand that that does not include acts of negligence.
It is important to note that, according to the second reading speech in the other place, the legislation is said to apply to approximately 44 per cent of the electricity network located on land which operators do not own or over which they have no formal easement. However, that is simply an estimate; the exact figure is not known and the electricity network is not properly mapped. Despite the fact that we have an obvious proliferation of above-the-ground electricity supply lines criss-crossing the entire State, we do not have proper maps, or proper allocation of such important infrastructure, and that information is not kept up to date. It is all very hit and miss. Workers on the ground maintaining the lines for years know where the lines are, any observation would show where they are, and I am sure that modern satellite technology could be used to work out where they are. However, we have been informed that no complete maps of the electricity network exist.
I am told that the bill has been introduced because electricity works were constructed and administered by county councils with the consent of landowners but that formal easements were not negotiated. I understand that that might have been appropriate in the past to get things done and to speed up the process but, given the enormous number of regulations facing people in rural areas, the procedure must be changed. Now that electricity operators⎯namely, Country Energy, Integral Energy and EnergyAustralia⎯own and operate the infrastructure, any new electricity works are constructed with a formal easement being negotiated. The bill does not tamper with the current regime; it deals with cases where the works were not put on the land title. The bill needs to deal with this situation, which applies to nearly half the network.
The Minister's second reading speech states that there is a risk of litigious individuals jeopardising the electricity network through opportunism, even where the original landholder consented to installation of electricity works. That is an interesting interpretation of individual rights on property. For many reasons, individual farmers do not want the increased voltage capacity of the electricity lines and the associated clearing works. Many people who live in the bush have a different perspective—a minority perspective, one might say, which the Greens often find themselves supporting—and do not want electricity lines across their property. In some cases people have chosen to use stand-alone systems, both from an environmental perspective and because there is less damage to the bush. In certain circumstances, stand-alone systems can be more cost effective and deliver a more reliable electricity supply to various households in remote areas. In the area in which I live on the north coast of New South Wales—
The Hon. Rick Colless: It is hardly remote.
Mr IAN COHEN: However, a number of people have significant access difficulties and it can be difficult to supply utilities. I do not have the figures with me, but I know of a number of people who have chosen to use various remote stand-alone energy generation schemes because of the difficulties of supplying the electrical system. People qualify for a stand-alone electricity generation system not just because of distance; they may qualify as a result of terrain and various other circumstances. It is often just people's preference. I have neighbours who have spent time, energy and money to put themselves on a stand-alone system combining wind 23 May 2006 LEGISLATIVE COUNCIL 39 and solar. However, electricity authorities have then put powerlines across their land against their will. They have been unhappy about that.
The neighbour who has his own system—I know I am speaking outside the leave of the bill because it does not deal with accidents and breakdown—saw sparks, went to investigate, walked into a live powerline and did serious damage to himself. It was a tragedy⎯and he was not even using the system! This type of thing happens. People in my community are concerned about individual rights against a big corporation. I am concerned about the rights of property owners on whose land electricity works exist. I note that the Legislation Review Committee has expressed some concern about whether the limitation on the liability to seek judicial redress for nuisance is an undue trespass on the individual rights of landowners or occupiers. I would suggest that it is. As a general rule, I feel that energy corporations have too much power and that this bill will simply give them more.
I refer to a couple's experience with Country Energy in relation to the type of electricity works that we are debating today. In 2004 I was approached by a couple living in Ashby, just across the Clarence River from Maclean. Three years earlier they purchased a three-quarter acre block of land for the sole purpose of protecting the 100-year-old trees and wildlife that the property contains. The couple spent three years getting rid of lantana, bitou bush and other weeds, and planted more than 100 native species. A low-voltage powerline was located along one side of the block, which provided power to two adjoining houses. There was no easement for powerlines on their title. Country Energy wanted to clear all the trees under and near the line, which would destroy the continuity of a wildlife corridor and a mass of vegetation. The couple negotiated with Country Energy but were told that if they wanted the cables relocated they would have to pay for it. At the time, the Country Energy quote was in excess of $20,000.
I know people who are on stand-alone electricity and do not rely on power from the grid. They have opted to equip their property with renewable energy, such as wind and solar. However, they cannot remove electricity works, such as power poles, from their properties. There must be some kind of compromise between the ability of the electricity network to exist and the rights of landowners who engage in conservation? One such compromise could be the undergrounding of cables. Expense is generally brought up as an argument against the undergrounding of electricity works. However, if electricity distributors and telecommunications networks, for example, pooled resources and undergrounded lines together there would be significant cost savings.
In my local area, Byron shire, the council is working with the various utilities to look at ways to work together and therefore afford a more expensive system. I am sure many honourable members who live in the country would agree that the maintenance of above-the-ground lines is extremely expensive and ongoing. Quite often, the maintenance of particular lines overground is carried out at an obvious financial loss to the corporation. For example, I refer to where I live. The property used to service a number of dwellings, one of which belonged to national parks. A few years ago, one of the dwellings was demolished because of its asbestos content and condition. I am on a property, shared with others, that is the sole recipient of about two kilometres of powerline through littoral rainforest.
Obviously, there is damage to the rainforest as a result of the continued clearing of the lines. Part of the line runs across a neighbour's private property. Another neighbour does not even use the grid. Yet the line is maintained. Given the cost of maintaining the line to one property, I have asked representatives from the local electricity utility whether it would support the installation of a stand-alone system. The last time I asked, it was not interested. However, our next-door neighbours have stand-alone electricity. There is not much sympathy for people who want to creatively look after their environment and undertake stand-alone systems. However, there is a huge advantage to using stand-alone systems. Industry should work towards the development of environmentally sound, greenhouse-efficient, cost-effective methods—
The Hon. Michael Costa: Are you talking about nuclear energy?
Mr IAN COHEN: I acknowledge the Treasurer's interjection. He has introduced nuclear energy into the debate, which is typical of him. However, it is outside the leave of the bill. His comment is typically irrelevant and irreverent. Electricity delivery services are intent on increasing their network and on maintaining the centralised power of their network. Maintenance of the centralised power, selling the resource and making more money for the corporation holds back innovative, creative, environmentally and socially sustainable methods of electricity supply. In this case, I refer to the development of stand-alone electricity, which would be of great benefit for the community and the environment, and would create an effective export industry, particularly in the current climate. We then have the unimaginative irrationality that the only way to go would be nuclear, so let us have that debate. 40 LEGISLATIVE COUNCIL 23 May 2006
Reverend the Hon. Fred Nile: Hear, hear!
Mr IAN COHEN: I say to Reverend the Hon. Fred Nile that nuclear energy is the work of the devil.
Reverend the Hon. Fred Nile: God provides the uranium.
Mr IAN COHEN: I would be pleased to hear Reverend the Hon. Fred Nile give me an explanation for Chernobyl and Three Mile Island in a Christian context. Underground lines and pooled resources seem to be beyond the comprehension and appreciation of the Government. The major players in the Government's financial team mean we have a heavy-hitting one-dimensional response to these problems, which I hope gets them into hot water at the next election. However, we will see whether the community is creative enough to acknowledge the moronic attitude, which ridicules alternative attitudes in this House.
The Hon. Rick Colless: Who will you give your preferences to?
Mr IAN COHEN: Wait and see. I had an interesting discussion with a number of wise Aboriginal people that sums up my attitude—it is not Greens policy. When we discussed whether they would support the Australian Labor Party or the Coalition at the upcoming election, one of them looked at me seriously and said, "Well, mate, the Coalition is like a stab in the guts and the Labor Government is like a stab in the back⎯your choice!" I think that is an appropriate way of putting it.
The Hon. Michael Costa: When the Greens stab you, they use neither knives nor forks.
Mr IAN COHEN: I acknowledge the interjection of the Treasurer. It was not even juvenile; it was silly.
The DEPUTY-PRESIDENT (The Hon. Patricia Forsythe): Order! I suggest that Mr Ian Cohen confine his remarks to the subject of the debate and does not acknowledge interjections, juvenile or otherwise.
Mr IAN COHEN: A paucity of decent environmental legislation goes through this House, so they do not have much to do these days. Other Australian capital cities and major international cities have underground cables. New South Wales needs to keep step with twenty-first century energy technology. Urban and rural environments are degraded through overhead powerlines, including the cutting down of trees. Sydney Cables Downunder has developed credible funding alternatives that address the Government's concerns. It has shown that the benefits of underground cabling outweigh the costs in the longer term. Protection from litigation will apply not only to electricity works that are already in existence but also to any works subsequently erected on the same site to repair, replace, modify or upgrade those works. This is cause for concern.
The bill does not contain a definition of "upgrade". I have met with the Minister's advisers, who sought to assure me that any upgrades would have to be in the same footprint as existing works. This could include more power poles or higher voltage but not, for example, transmission cables. I am not entirely convinced by this argument. I would prefer a definition of "upgrade" and an assurance from the Minister that if property owners buy a property with electricity work on it they could not be subjected to major upgrades, increasing the impact and nature of the works over which they would not have any recourse. I doubt whether the Minister would give such an assurance because where people have relatively minor electricity connections and the area is developed, upgrading results in higher capacity voltage lines passing through their properties.
There is much debate in the community about the adverse impacts of high-voltage lines on people's health. I suggest that people living in close proximity to upgraded lines face an increased risk from electromagnetic radiation. That matter should be addressed. The Greens have major concerns over gung-ho land clearing around electricity works. The Hon. Dr Arthur Chesterfield-Evans referred to TransGrid clearing a huge swathe through Brindabella National Park, which was an environmental abomination that should be opposed by all honourable members. Conservationists were extremely concerned by that action. The bill seeks to clarify that network operators may require the removal of structures in certain circumstances, particularly the safe operation of electricity works, and that the cost of such removal is to be borne by the electricity contractor. The Greens support this provision.
I note that the Opposition opposes the bill in both Houses because of the Government's lack of consultation with farmers and a paucity of detailed maps. I have similar concerns. It is difficult to imagine that there would be no maps of the electricity works in question. Even the figure of 44 per cent is an estimate. This 23 May 2006 LEGISLATIVE COUNCIL 41 estimate, the Government's usual lack of consultation and the impacts on rural landholders, in particular, are of great concern to the Greens. I would be more comfortable if the bill encouraged a stand-alone electricity generation system and the decentralisation of what is massive infrastructure and, instead, preserved the power supply in a more creative manner. Many people in the Byron shire work from home. We are blessed in the north of the State with a high rainfall, which is a great advantage. Unfortunately, we experience severe electrical storms and, with the longer length of line and weather conditions, damage to computers and other equipment is significant. Power failure causes a great deal of inconvenience and expense, particularly to people working from home.
For that reason many people are moving towards a stand-alone electricity system. They are safer for sensitive equipment such as computers. Landholders could be better protected from upgrades. A major power line that went through Mullumbimby was placed in the ground but close to people's properties and the authority completely ignored the property owners. They were disempowered with respect to installation of this major power gridline on a road easement within metres of their houses. That and other stories are the legacy of electricity utilities. With those concerns, it is appropriate that the Greens do not support this bill.
The Hon. MICHAEL COSTA (Treasurer, Minister for Infrastructure, and Minister for the Hunter) [3.49 p.m.], in reply: I thank honourable members for their contributions to the debate. In particular, I acknowledge the Greens' support of private property rights as a point of opposition to the Electricity Supply Amendment (Protection of Electricity Works) Bill. I hope that that reflects a general change in political philosophy which will be reflected in consideration of other legislation before the Parliament.
The Hon. Rick Colless: Perhaps you'll revisit the Brigalow!
The Hon. MICHAEL COSTA: Maybe—you never know! The amendments in this bill will ensure that the presence, operation and use of existing electricity infrastructure are protected. This protection will provide legal certainty for both landholders and network operators. If the bill is not passed, there is a real chance that the courts could order that power poles and lines be dismantled, cutting off electricity supplies to rural New South Wales communities. The amendments are necessary because of the way in which county councils constructed much of the electricity network in decades gone by. As the protection offered by the bill applies only to existing electricity infrastructure, network operators will be required to obtain formal easements in accordance with the Land Acquisition Just Terms Compensation Act if they wish to protect future electricity works to be constructed on private land. The network operator may repair, replace, modify or upgrade electricity works without losing the protection given in the bill, as long as the electricity works remain situated on the same site. These amendments will help to facilitate the delivery of a safe and reliable supply of electricity at affordable prices to energy consumers in New South Wales. I commend the bill to the House.
Question—That this bill be now read a second time—put.
The House divided.
Ayes, 20
Mr Breen Ms Griffin Mr Roozendaal Mr Brown Mr Hatzistergos Ms Sharpe Ms Burnswoods Mr Kelly Mr Tsang Mr Catanzariti Reverend Dr Moyes Dr Wong Mr Costa Reverend Nile Tellers, Mr Donnelly Mr Obeid Mr Primrose Ms Fazio Ms Robertson Mr West
Noes, 16
Dr Chesterfield-Evans Miss Gardiner Ms Rhiannon Mr Clarke Mr Gay Mr Ryan Mr Cohen Ms Hale Ms Cusack Mr Oldfield Tellers, Mrs Forsythe Ms Parker Mr Colless Mr Gallacher Mrs Pavey Mr Harwin 42 LEGISLATIVE COUNCIL 23 May 2006
Pairs
Mr Della Bosca Mr Lynn Mr Macdonald Mr Pearce
Question resolved in the affirmative.
Motion agreed to.
Bill read a second time and passed through remaining stages.
Pursuant to sessional orders business interrupted.
QUESTIONS WITHOUT NOTICE
______
POLICE FREEDOM OF INFORMATION DELAYS
The Hon. MICHAEL GALLACHER: My question without notice is directed to the Minister representing the Premier. Is the Minister aware that the police service legal services unit has been sending apologies to people requesting information under freedom of information indicating that there is currently a six- month delay because it is short of staff? Is this yet another example of the chronic understaffing of NSW Police given that section 18 of the Freedom of Information Act states that applications should be dealt with as soon as possible and, in any case, within 21 days? What action is the Minister taking against NSW Police for failing in its legislated responsibilities?
The Hon. JOHN DELLA BOSCA: The last part of the Leader of the Opposition's question is something I will refer to the Premier for his investigation and response. I am sure we will get a very prompt response and one that will be satisfactory. However, a number of assumptions in the question are wrong and I want to take the opportunity to dismiss them. For the Leader of the Opposition to suggest, as he does, that in any way, shape or form the police service is understaffed is nonsense. I think he is aware of that.
The Hon. Michael Gallacher: Point of order: If I may assist the Minister, the letter from the police service says, "This office is chronically understaffed."
The PRESIDENT: Order! There is no point of order.
The Hon. JOHN DELLA BOSCA: In the course of his question, the Leader of the Opposition did not disclose to me any letters or correspondence he may have had. That may be interesting and part of his rhetorical stance, but I doubt whether he would do anything to help me. The Leader of the Opposition well knows that NSW Police and the efforts the Iemma Government has put into front-line policing are second to none. With respect to obligations under various sections of the Freedom of Information Act I will happily take those back to the Premier for a more detailed response.
SCHOOL ZONE ROAD SAFETY
The Hon. IAN WEST: My question is addressed to the Minister for Roads. Will the Minister provide the House with the latest information on the Government's initiative regarding school road safety?
The Hon. ERIC ROOZENDAAL: I commend the honourable member for his interest in this very important matter. On Sunday I announced a comprehensive government package to enhance the safety of our children around New South Wales schools. The package has five main components. The first of these is a new school safety alert system based upon better and more reliable technology than existing flashing lights. The evaluation of flashing lights showed that whilst reductions can be achieved with flashing lights the existing models are unreliable. We need to put in place better and more effective technology.
Today the Roads and Traffic Authority [RTA] advertised for expressions of interest to develop and implement a new system that will incorporate features in addition to flashing lights. Unlike the promises made by the honourable member for Vaucluse, I will not waste millions of dollars on a simplistic and unreliable 23 May 2006 LEGISLATIVE COUNCIL 43 approach. My goal is to have the latest technology in place as soon as possible. The Government is determined to deliver the best possible value for New South Wales taxpayers through a competitive tender process and a new approach to funding this technology. This will include corporate involvement, as suggested by the NRMA, and offsetting revenue from speed cameras in school zones. This is not a trial. The technology will roll out across the State on a needs basis, based on expert advice and safety criteria.
The second component of the package is tougher enforcement. A mixture of fixed and mobile cameras will covertly monitor one of those school zones, meaning any zone could have a camera in it at any time. Irresponsible motorists, who continue to speed through these zones, will face tougher fines and increased demerit points. When it comes to school zones, there is no excuse for careless or reckless driving of any kind. I make no apology for these tough measures where the safety of kids is at stake.
The Government recognises that it is important to embrace the enthusiasm of parents and school communities to protect our children. A "drop-off-and-go, pick-up-and-go" parking and marshalling system will be offered to schools across New South Wales. Under the system, which already operates in several New South Wales schools, parents volunteer on a tuck-shop style roster to greet students arriving at school in cars, open doors and marshal them safely through school gates—giving peace of mind to both parents and schoolchildren. The RTA will develop and distribute a kit to assist interested schools to implement the system.
The Government does not see these measures as the final word on school road safety. That is why I will convene a school child safety round table to discuss further initiatives, including a possible second category of volunteers to assist lollipop people. The round table will be comprised of community representatives and stakeholders and will enable broad consultation regarding further safety measures. The Government will work in partnership with schools, parents and motorists to improve the safety of our children.
This major package of initiatives demonstrates how seriously the New South Wales Government is taking the issue of school road safety. I urge all members of the community to do the same and exercise the utmost caution on the roads, especially in school zones or wherever kids are likely to be present. The simplistic sloganeering of the Opposition offers nothing to the debate.
BATEMANS MARINE PARK DRAFT ZONING PLAN
The Hon. DUNCAN GAY: My question without notice is directed to the Minister for Primary Industries. Is the Minister aware that Bateman's Bay Bait and Tackle has decided to shut in a month because uncertainty surrounding the Batemans Marine Park has rendered the business unviable? Considering that even before the official draft zoning plan has been released customers have stopped investing in fishing equipment, have indicated they will not register their boats and are even looking to move elsewhere, will the Minister now acknowledge that the Batemans Marine Park will negatively affect local businesses? Will the Minister provide compensation for businesses affected by his marine park in this way?
The Hon. IAN MACDONALD: I find the question very interesting and somewhat aggressive. If my memory serves me correctly, the marine park at Batemans Bay has not been settled. The boundaries have not been released, yet the Deputy Leader of the Opposition is trying to turn a difficult situation for a particular firm into some sort of political Quo Vadis. He does that in this place all the time. I cannot see how he can say that about a business's collapse at this time when it will be another four, five or six months before the marine park zones are declared.
If honourable members took their time to study the socioeconomic impact statement that has been done in relation to the marine park at Solitary Islands, around Coffs Harbour, they will see a finding in that document that marine parks increase tourist business. Honourable members opposite laugh because they are interested in trying to whip up this issue. Having said all that, I will refer the question to the Minister responsible because I do not have responsibility for Batemans Marine Park.
GAMETE DONATION AND CHILDREN'S RIGHTS
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: My question is directed to the Minister for Health. What is the Government doing for the rights of children conceived by anonymous donor gametes—that is, sperms and eggs? Is the Minister aware of the Federal national care givers' conference on 5 and 6 June this year? Is the Minister aware that Victoria has appropriate legislation in that regard. Is it true that a draft a bill for New South Wales has been around since 2003? When will New South Wales act to help clarify the situation for 44 LEGISLATIVE COUNCIL 23 May 2006 these people and for the future so that New South Wales gamete donors, recipients and their children can have their positions clarified?
The Hon. JOHN HATZISTERGOS: This issue has been around for some time. A draft bill has been available for consultation and Cabinet is currently considering the issue. I am aware that some States have imposed regulations. I am also aware other jurisdictions have not. As to the rights of children conceived by anonymous donor gametes, I am not sure what the Hon. Dr Arthur Chesterfield-Evans is alluding to. There is a voluntary register at, I think, the Royal Hospital for Women, which allows people to voluntarily register if they wish to be identified to any potential recipient of the gametes.
YASMAR HOUSE AND GARDENS
The Hon. GREG DONNELLY: Will the Minister provide information on what steps the Government has taken to secure the future of historic Yasmar House and gardens?
The Hon. TONY KELLY: It is with great pleasure I announced last Thursday that the Government would be handing over the management of historic Yasmar House and gardens to Ashfield Municipal Council. As I have mentioned a few times in this House, I have met with Ashfield council in the preparation of a successful solution to this problem. For honourable members who are not familiar with the history of Yasmar, the grounds occupy a 2.34-hectare site on Parramatta Road at Haberfield and Yasmar House was built in 1858. Yasmar, which is "Ramsay" spelt backwards, was built for Mary Louise Learmonth, daughter of David Ramsay, one of the early pioneers of Haberfield.
On 12 April 1946, Yasmar was established as a shelter for the reception and temporary detention and maintenance of children and young persons. Boys up to 15 years of age appearing before the court were lodged at Yasmar, which operated as both a custodial and an educational facility. In 1994 a specialist program for young women in custody was developed, with Yasmar chosen as the site to house up to 34 of the program's residents. The centre remained as the State's sole female juvenile detention centre until last year, when the Government opened Juniperina Juvenile Justice Centre at Lidcombe. Honourable members would be interested to know that Yasmar is a fine example of a regency-style villa in the Greek revival style.
The Hon. Michael Costa: Hear! Hear!
The Hon. TONY KELLY: That is why the Treasurer is supportive of this initiative. This style was popular in mid-nineteenth century Sydney. The gardens are a rare example of a villa garden in the gardenesque style. The gateposts, gates and curved carriageway leading to the turning circle also survive in near original condition. The grounds contain a sunken garden, which is claimed to be the first domestic swimming pool built in Australia. Yasmar is the only villa house estate remaining on Parramatta Road. It is a fine example of the architect John Bibb's work. The building, gardens and entrance gates were placed on the register of the National Estate in 1978. In February 2000, it was placed on the New South Wales State Heritage Register.
The plan I announced last Thursday will reserve the whole site as Crown land. Part of the site will become a government training facility and the remainder, which contains the historically significant Yasmar House and gardens, will be placed under the responsibility of Ashfield council as Reserve Trust Manager. I understand the council will work with the community to determine the best public use of the house and gardens. This decision has followed extensive representations by the local member, Angela D'Amore, who has been a tireless advocate for many years for the retention of Yasmar House and gardens in public hands. This is indeed a victory for her and for the local community.
BUILDING SUSTAINABILITY INDEX
Mr IAN COHEN: My question without notice is addressed to the Treasurer, representing the Minister for Planning. Is it true that the Treasurer is not a supporter of the popular and well-regarded BASIX scheme, which has been delivering massive energy and water savings to new homes and units in New South Wales? Is a recent report by Anne Davies in the Sydney Morning Herald correct in its assessment that the Government is considering scrapping the next stage of BASIX, particularly as it relates to unit developments, which is due to come into force from 1 July? Does the Minister think it is fair to place the burden on Sydney's children and grandchildren, who will have to pay the environmental cost of this Government's failure to implement even modest Cabinet-approved sustainability plans? Why should the people of Sydney be expected to do their bit to save water and reduce greenhouse gas emissions when their Government will not do its bit by standing up to the property developers who are so generous with their donations to the Labor Party? 23 May 2006 LEGISLATIVE COUNCIL 45
The Hon. MICHAEL COSTA: I will refer the question to the Minister for Planning and ask him for his opinion of my view on this issue. I know it is against standing orders, but I want to put on record that if Mr Ian Cohen is so concerned about greenhouse gas emissions and global warming he should support nuclear energy.
COMMUNITY PARTICIPATION PROGRAM
The Hon. JOHN RYAN: My question without notice is addressed to the Minister for Disability Services. Has the daughter of Katherine Guirguis, who featured on a report in the television media last night, had her community participation program reduced from five days a week to three days a week? Does the Minister stand by promises made by his predecessor that hours for individuals on the Community Participation Program would not be cut? Have service providers been providing supplementary funding from their own budgets to allow some clients five days a week of service? How will the Minister support people who lose hours in community participation because service providers are no longer able to subsidise their programs at that level?
The Hon. JOHN DELLA BOSCA: I repeat the principle I adopt in answering honourable members' questions—I do not canvass specific cases. I am happy to discuss with or provide a briefing to members who are concerned about particular cases. I did not see the television report to which the honourable member referred, although I have subsequently been briefed on it. I have not yet been able to verify the matters of fact contained in that report. As a general response to the honourable member's question about the future of the various programs relating to community participation, in the next couple of days he, together with the public of New South Wales, will be able to see some of the changes that the Government has been working on that will give effect to the previous Minister's undertakings.
Key features of the new directions for the Community Participation Program will include a clearer focus on services that develop everyday life skills, and recurrent individual funding corresponding to need that is flexible and portable, enabling participants to move between providers. Other features include the provision of funding for individual service users that is more closely linked to actual needs, and all eligible community participation service users will be guaranteed support for at least 48 weeks a year. New service types will be provided to give young people and their families a greater choice over their support options. Available service types will include new self-managed packages. The Government will introduce new access and equity strategies to improve the participation rates of young Aboriginal people and people from culturally and linguistically diverse backgrounds.
As to the final part of the honourable member's question, the financial stability of individual providers will be supported through the provision of a guaranteed minimum level of funding each year based on 75 per cent of the number of service users at the beginning of the calendar year, with quarterly adjustments made to reflect actual user numbers. In implementing the new directions for the Community Participation Program, the Department of Ageing, Disability and Home Care will continue to work with service providers, service user representatives and peak disability organisations to establish effective and sustainable post-school programs.
OLDER CARERS RESPITE CARE FUNDING
The Hon. CHRISTINE ROBERTSON: My question without notice is addressed to the Minister for Ageing, and Minister for Disability Services. Will the Minister advise the House what the Iemma Government is doing to help older carers of people with a disability across New South Wales?
The Hon. JOHN DELLA BOSCA: The Iemma Government has recently announced the release of more than $17 million to help older carers across the State.
The Hon. John Ryan: Spend some Commonwealth money.
The Hon. JOHN DELLA BOSCA: Why not? It spends a lot more of ours in other States. This funding will provide an additional 2,373 flexible respite packages for older carers over the next three years as part of a joint New South Wales Government and Commonwealth initiative. This is the first phase of a $48 million initiative to provide greater support for carers looking after people with a disability. The funding is much needed, as there are a growing number of older people who are primary carers for their adult son or daughter with a disability. The flexible respite services to be provided under this initiative will enable older carers to receive in-home support, overnight care, weekends away, or centre-based respite. 46 LEGISLATIVE COUNCIL 23 May 2006
Access to respite care is vital in helping families to support their loved ones at home. Of course, caring can be an around-the-clock commitment and parents need a break. Respite provides an opportunity to reduce stress, to recover from fatigue and to avoid burnout. In stark contrast to the Coalition's record, the Iemma Government's respite care funding has doubled since 1996, with a total investment of more than $160 million this financial year. I remind the House of the Opposition's track record in disability services. The Leader of the Opposition has said not one word about disability services in his new leaflet "Priorities for New South Wales".
The Hon. John Ryan: He mentioned respite in one of his very first press conferences.
The Hon. JOHN DELLA BOSCA: It is not one of his priorities for New South Wales. At the same time, he brings families to Parliament and raises their expectations, but he has no plan to help them. The Leader of the Opposition has announced plans to axe 29,000 public sector jobs. He has not offered protection for home care workers and he has not offered protection for disability workers. At the last election, the Opposition promised to cut $700 million from Community Services to fund its election promises. The Opposition has no credibility with community and disability services—not at the last election and not now.
The Government has been consulting with parents, carers, and people with a disability and service providers across the State about its 10-Year Disability Plan. The plan, to be released soon, will make it fairer and easier to access services, link services to need, assist people to stay at home, provide more options for people requiring out-of-home support and develop a sustainable care system. The plan will detail the New South Wales Government's commitment to building a more flexible service system which responds to individual needs and which has a strong focus on early intervention.
SNOWY HYDRO LIMITED SALE
Ms SYLVIA HALE: I direct my question to the Minister for Finance. How has the valuation of Snowy Hydro Limited been determined in preparation for its sale? Has the value of all land controlled by the corporation been determined by independent valuation, or at cost, and at what value? How much land is involved and will land tenure be leasehold or freehold? Was the value of all buildings and plant and equipment determined at cost price, written-down value or replacement cost? Was the 1974 construction cost of $820 million included in the valuation and, if so, how? Or has the valuation simply been determined by an assessment of past profit and loss performance of the corporation or projections of future profit and loss based on Snowy Hydro Limited's current operating budget?
The Hon. JOHN DELLA BOSCA: By way of general answer to the member's specific questions, of course there is a process. The three governments have been involved in a due diligence process that involves the valuation of assets and which is analogous to a company float, merger and acquisition or, in this case, an initial public offering. As honourable members of the Opposition, the Government and honourable members on the crossbenches are aware—and I am sure the honourable member is also aware because I understand she is a successful businesswoman in her own right—the due diligence process values the assets with the business as a going concern. It may be applicable from time to time to value individual assets within that overall due diligence program in other ways, depending on the accounting rules and other points of disclosure that are required by the Corporations Law and the relevant Stock Exchange rules. In every respect, the three governments involved have been carefully ensuring that the due diligence process is on foot and consistent with the laws of the land. In ethical terms, it is absolutely appropriate, and that will be abundantly clear when the prospectus is made available.
Ms SYLVIA HALE: I have a supplementary question. Will the Minister provide specific answers to the specific questions that I asked?
The Hon. JOHN DELLA BOSCA: I refer the honourable member to my previous answer.
CORRECTIVE SERVICES COMMISSIONER RON WOODHAM
The Hon. DAVID CLARKE: I direct my question to the Minister for Justice. Has the Corrective Services Commissioner, Ron Woodham, provided his retirement date or an indication that he is about to retire given his lengthy absence from duty?
The Hon. TONY KELLY: I thank the honourable member for his question and for the opportunity to make a few comments about Ron Woodham. No, he has not provided a retirement date, much to the disgust of 23 May 2006 LEGISLATIVE COUNCIL 47 the shadow spokesman for corrective services. On 1 December I was on my way to a graduation ceremony in Western Sydney when I was informed that the shadow spokesman had issued a press release saying that, given the commissioner was retiring, it would be good for the Government to find a suitable replacement. As honourable members know, that was a load of rubbish. The shadow spokesman often provides false information to the media. He is renowned for his errors; he has foot-in-mouth disease and he has made myriad mistakes and bloopers. The press release proved to be wrong and confirmed the shadow spokesman's willingness to make it up as he goes along and to slander the good name of our Correctional Services officers for the sake a cheap political stunt.
DROUGHT SUPPORT PROGRAMS
The Hon. TONY CATANZARITI: I direct my question to the Minister for Primary Industries. Can the Minister detail to the House the recent enhancements to drought support measures announced earlier today?
The Hon. IAN MACDONALD: As honourable members are aware, the Iemma Labor Government today announced a $5.5 million package to further assist our drought-affected farmers. This package is in addition to the more than $200 million spent by the New South Wales Labor Government since July 2002. It includes an expanded transport subsidy program and yet another extension of our valuable Drought Support Workers Program.
Effective immediately, transport subsidies will be available for all livestock producers in drought- affected regions through to the end of August. This will help to get fodder and water to stock over the winter period. Transport subsidies help to ensure the welfare of farm animals and to avoid the mass slaughter of livestock that has been associated with previous severe droughts. These subsidies are already in place for the entire Western Division and those areas that were drought affected according to the February 2006 figures. They did cease for other areas of the State in March when signs for recovery looked strong. At that point the Riverina districts and most of the Southern Tablelands had not been drought declared for five months. Other than some isolated spots in the Nyngan and Coonamble Rural Lands Protection Board areas, the Central West districts had been out of drought for five months. The North Coast and New England districts had also seen steady improvement dating back to October 2005. In other words, substantial parts of the State were out of drought.
The New South Wales Labor Government has continually reviewed its drought support measures, and today's enhancements are a result of that. The transport subsidy program entitles producers to receive a 50 per cent subsidy on the cost of transporting fodder and water to stock, water for domestic use, stock to and from agistment, and stock to sale or slaughter. If any drought-declared area comes out of drought for a given month and it goes back into drought between now and the end of August, farmers will continue to be eligible for transport subsidies for those months they are in drought. The transport subsidy program will again be reviewed in August, based on conditions at that time.
I note that the Hon. Duncan Gay has today criticised the package, referring to it on 2BL as "a pretty sick joke." I am sure that farmers who need to use transport subsidies would be horrified at his attitude. The New South Wales Government has reviewed its policies in light of current conditions and made practical adjustments. It will review the transport subsidy scheme in August, which is a very reasonable and practical approach. It seems that the Hon. Duncan Gay is the only person in this State who does not want this drought to end. His attitude is appalling. Honourable members should remember that last winter we had very good rains from July onwards that led to some of these areas coming out of drought and very good cropping across the State.
Today's announcement also included the extension of our Drought Support Workers Program to help families to cope with the strains associated with extended dry conditions. The program provides a crucial link between farm families and the various agencies that can offer help. It also organises farm family gatherings and drought support workshops. The continued involvement of drought support workers will help farmers cope with mental health issues associated with drought. This Government's proactive and continued response to changing conditions is a far cry from that of the Commonwealth. And the Deputy Leader of the Opposition talks about us! The Commonwealth has not rolled over all those districts across New South Wales. The Deputy Leader of the Opposition should be saying that. He should resign.
MOBILE PHONE GAMBLING
Reverend the Hon. Dr GORDON MOYES: I ask the Minister for Primary Industries, representing the Minister for Gaming and Racing, a question without notice. Is the Minister aware that international gambling conglomerates wish to introduce mobile phone betting games and lotteries into Australia to operate 24 hours a day, seven days a week? Is the Minister aware that the second-largest gambling conglomerate in the 48 LEGISLATIVE COUNCIL 23 May 2006 world, Intralot, has applied for a lottery licence in Victoria already, and seeks to establish around-the-clock mobile phone gambling as a way of boosting the participation of young Australians in gaming and lotteries? Does the Minister consider the protection of young people more important than introducing yet another more convenient and dangerous form of gambling? Will the Minister disallow any lottery licence in New South Wales that seeks to introduce mobile phone gambling?
The Hon. IAN MACDONALD: The obvious answer is that I will refer this question to the Minister for Gaming and Racing.
THREATENED SPECIES LEGISLATION
The Hon. RICK COLLESS: My question without notice is directed to the Minister for Primary Industries. Does the Minister support the listing of atriplex nummularia as endangered by the scientific committee of the Department of Environment and Conservation? Is it a fact that the threatened species legislation is out of control and is now restricting grazing management practices? What is the Minister going to do to stop this listing so that farmers can continue to use this species as stock feed?
The Hon. IAN MACDONALD: As much as I am tempted to enter into this debate, I shall refer the question to the Minister for the Environment.
The Hon. Rick Colless: The Minister did not listen clearly to the question.
The Hon. IAN MACDONALD: I do not give opinions in this place, only facts.
OPIOID TREATMENT PROGRAM
The Hon. JAN BURNSWOODS: My question is addressed to the Minister for Health. What is the latest information on the Government's opioid treatment program?
The Hon. JOHN HATZISTERGOS: I can advise the House that guidelines are being implemented by NSW Health to support the introduction of a newly available product called Suboxone, which will better help opioid dependent patients beat their addiction and improve the safety and effectiveness of the opioid treatment program. The New South Wales guidelines for Suboxone are complementary to the national clinical guidelines that were endorsed at the Ministerial Council on Drug Strategy, which I attended in Perth on 15 May. Use of the treatment was approved by the Therapeutic Goods Administration in July 2005, and from April 2006 it has been available through the Pharmaceutical Benefits Scheme.
NSW Health has carried out an evaluation of the benefits to people on the opioid treatment program, and that evaluation demonstrates a substantial improvement in the physical and mental health of participants with many able to work and lead normal lives. The effectiveness of the program in relation to crime reduction is well documented. The Bureau of Crime Statistics and Research and the National Drug and Alcohol Research Centre have documented the decreasing crime rates among persons on opioid treatments. The changes being made are aimed at further improving the safety, delivery and effectiveness of these services.
The guidelines will ensure that doctors authorised to prescribe the new treatment will be experienced pharmacotherapy prescribers who have satisfactorily completed the relevant training module offered by the Chapter of Addiction Medicine. In addition, authorised prescribers will be required to participate in a review of the introduction of the treatment during the first 18 months of operation. This review is part of a multi- jurisdictional study into the different ways Suboxone will be provided in three different States. New South Wales will be leading the study in partnership with Western Australia and Victoria.
The New South Wales Government is working also with professional medical education organisations, divisions of general practice and medical colleges to reduce red tape and establish training programs so that there is an increase in the number of general practitioners who are able to provide treatment. Normalising the lives of patients is an important aspect of successful treatment. For appropriately stable patients this means they should be managed within a local setting where they can retain their connections with their family and friends, maintain stable employment and be contributing members of society. The Government is therefore moving away from large private methadone clinics and is encouraging the increased involvement of pharmacies and general practitioners in the delivery of services. 23 May 2006 LEGISLATIVE COUNCIL 49
A statewide action team has been established to work with general practitioners and pharmacies to support their engagement with the New South Wales opioid treatment program. The changes I have indicated are based on clinical evidence and are aimed at better helping patients beat this awful addiction. The Government is committed to helping these patients recover so that they are able to lead normal, productive lives.
ROADSIDE DRUG TESTING
Reverend the Hon. FRED NILE: I wish to ask the Minister for Roads a question without notice. Is it a fact that Chief Superintendent John Lipman announced late last year that roadside drug testing would commence early in 2006? Is it a fact that 67 per cent of persons surveyed by the National Drug and Alcohol Research Centre showed that they had driven within an hour of taking illegal drugs? What month will roadside drug testing commence in New South Wales to reduce road accidents and deaths?
The Hon. ERIC ROOZENDAAL: I am advised that the decision to introduce the new drug testing bill is being finalised. Extensive consultation has been undertaken between the Roads and Traffic Authority, NSW Police, NSW Health and the Attorney General's Department. The legal issues involved are complex and the testing technology itself is new. The Government has worked hard to make sure it gets the legislation right following the problems experienced elsewhere. We must avoid the Victorian experience. I am advised that during the Victorian trial, police experienced problems on the first day of testing when the technology returned an incorrect positive result on the fourth driver tested.
I am further advised the Roads and Traffic Authority and NSW Police have been working together closely to ensure that the new technology used is accurate and appropriate, and minimises delays for drivers. Unlike the Victorian legislation, the new New South Wales laws include two separate proposals designed to enhance police powers with regard to drug driving enforcement. These new laws will permit both random roadside drug testing using saliva and compulsory drug testing of any driver, rider or supervising licence holder involved in a fatal crash.
MAITLAND HUNTER RIVER BRIDGE
The Hon. ROBYN PARKER: My question without notice is directed to the Minister for Roads. Is the Minister aware that there are more than $1.2 million of project delays in East Maitland as a result of delays by the Roads and Traffic Authority [RTA] in carrying out studies and environmental assessments regarding the third Hunter River crossing? What is the Minister's response to landowners and business operators in East Maitland who are tired of waiting for money to be spent on key projects in East Maitland as a result of delays by the RTA over the third Hunter River crossing? Is the Minister aware that Maitland councillor Tony Keating has been reported as saying that the delays are interfering with developments and creating anxiety for landowners affected by the third river crossing?
The Hon. ERIC ROOZENDAAL: Recently, when Cabinet members were in Maitland attending one of our many regional Cabinet meetings, I met with a number of interested groups in the region. I also toured around the area and had a look at potential sites for the third river crossing. I am aware of the issues involved and the Roads and Traffic Authority is working to expedite the matters and is consulting with the local community, as it always does.
INDEPENDENT CONTRACTORS LEGISLATION
The Hon. KAYEE GRIFFIN: My question without notice is addressed to the Minister for Industrial Relations. Will the Minister update the House on outcomes from last week's Workplace Relations Ministerial Council meeting and advise on developments that will impact on New South Wales workers?
The Hon. JOHN DELLA BOSCA: Last Thursday I attended the seventy-second Workplace Relations Ministerial Council meeting with my State and Territory colleagues in Sydney. As part of our discussions I asked the Federal workplace relations Minister whether he was going to consult with the States and Territories over his mooted Independent Contractors Bill. He point-blank refused to consult. This is exactly the same secretive and arrogant approach we witnessed during the introduction of the damaging WorkChoices laws. At the previous Workplace Relations Ministerial Council meeting in August he gave an undertaking that the States and Territories would see the WorkChoices legislation before it was introduced to the Federal Parliament. That agreement was not honoured. 50 LEGISLATIVE COUNCIL 23 May 2006
The Independent Contractors Bill is the latest power grab for State and Territory laws and a further attack on Australian workers and families. The so-called "new protections" that it offers greatly diminish the real protections contained in State and Territory laws for contractors such as building workers, cleaners, security guards and truck drivers. There is also a concern that it will make it easier for companies to sack their work force and re-employ them as contractors. This is WorkChoices all over again. The Commonwealth is putting together a piece of complex legislation that once again puts Howard's battlers in the firing line.
Once again the Commonwealth is talking to the big end of town and a few of their high-flying legal mates, but not to anybody in the community affected by the legislation. Once again the Commonwealth is refusing to reveal the details, even to the State jurisdictions. Independent contractors are already well protected from unfair treatment by State legislation. The so-called Commonwealth protections are a sham: the intent of this bill will be to strip away the entitlements of Australian workers and, in this case, Australian small business people. Where these workers and small business people had recourse to our industrial tribunals to settle disputes and recover unpaid wages or deal with unfair treatment, the Howard Government is cutting them free to look after themselves.
Some of their so-called protections will require expensive and complex litigation, beyond the reach of most ordinary independent contractors. As with all aspects of the dangerous and divisive WorkChoices regime the Howard Government's alternative to fair and effective State laws is a complex, uncertain and greatly diminished safety net. Also at the meeting the Federal Minister once again asked the States and Territories to hand over their industrial relations powers to the Commonwealth. This was after he was updated on the amount of damage the laws had created in New South Wales and the other States and Territories. Since the introduction of the WorkChoices laws two months ago, the New South Wales Office of Industrial Relations has received more than 30,0000 complaints. The majority of these calls have been from people who have had their workplace entitlements stripped away, been threatened with dismissal or, in fact, been sacked.
The Hon. Catherine Cusack: I hope you told them what their rights were.
The Hon. JOHN DELLA BOSCA: I do not normally make a habit of acknowledging interjections because they are disorderly at all times, but I can deal with this interjection. Even the Commonwealth Minister, who has not behaved reasonably in regard to these matters, conceded that the New South Wales Fair Go Advisory Service had observed all relevant protocols between the New South Wales and Commonwealth governments and the legislation. He acknowledged the number of complaints that I made to him about lack of reciprocation by the Commonwealth service. The Hon. Catherine Cusack should be careful before she makes comments about our hardworking New South Wales public servants, who are doing the right thing as they are obliged to under both Commonwealth and State laws.
To get a better idea of how severely the WorkChoices laws disadvantages workers and exposes them to unfair treatment, one has only to consider developments at the alma mater of the Deputy Leader of the Opposition, Newington College. It was reported on the front page of today's Sydney Morning Herald that at that college 40 senior teachers must re-apply for their positions and agree to work up to four more weeks a year. In this case, we are talking about highly skilled, university educated employees. Anyone who thinks that WorkChoices will only impact on low-skilled workers needs to take a closer look at the consequences of this legislation.
LANE COVE TUNNEL
Ms LEE RHIANNON: My question without notice is directed to the Minister for Transport. Given that the construction of three new ramps associated with the Lane Cove tunnel has made the major pedestrian crossing at North Sydney over the Warringah Expressway extremely unsafe, with blind crossings and intervening structures obscuring views, and given that the problems have been repeatedly pointed out to the Minister for Roads and the Roads and Traffic Authority but have not been remedied, can the Minister explain why plans for a pedestrian and bike overpass and underpass have not been progressed, even though North Sydney Council is willing to waive its usual policies and allow advertising on the bridge to fund such a simple and effective solution?
The Hon. ERIC ROOZENDAAL: I am buoyed by the support of the Greens for the North Sydney Council proposal to allow advertising on a pedestrian crossing within its boundaries. That is a move forward for the Greens. Pedestrian safety is a priority for the Roads and Traffic Authority [RTA] and has been a key consideration in the construction of the Falcon Street ramps. I am advised that as part of the construction of the 23 May 2006 LEGISLATIVE COUNCIL 51
Falcon Street ramps a new pedestrian walkway has been constructed on the southern side of the Falcon Street overbridge. This will provide pedestrians with an additional access point to cross Warringah Freeway. I am advised that although it will take longer for pedestrians to cross the northern footpath, it will not decrease safety for pedestrians. I am aware that there have been calls for an alternative pedestrian access. The RTA advises that it is considering building a pedestrian bridge north of the Falcon Street ramps.
OXLEY HIGHWAY DEVIATION
The Hon. MELINDA PAVEY: My question without notice is directed to the Minister for Roads. Is the Minister aware that the Roads and Traffic Authority has written to Port Macquarie-Hastings Council requesting that a levy be applied to future landowners in the area 13 urban release area, west of Port Macquarie, to pay for the new Oxley Highway deviation? Is the Minister further aware that the previous Minister for Roads, Carl Scully, made a commitment before the 2003 State election to the people of Port Macquarie that $80 million would be provided from the State budget for the upgrade of the Oxley Highway? Is this a new tax to pay for the Government's election promise and is it a new precedent that land releases will pay for State highway upgrades?
The Hon. ERIC ROOZENDAAL: I will take the question on notice and come back to the member with a detailed answer given that it was a detailed question, delivered in such an aggressive and unpleasant way.
WATER TRADING
The Hon. PENNY SHARPE: My question is directed to the Minister for Natural Resources. Has there been any breakthrough on water trading between New South Wales and other States?
The Hon. IAN MACDONALD: I am pleased to report that a major breakthrough in water trading was made last week when New South Wales, Victoria and South Australia agreed in principle to a mechanism that would enable interstate trading between the States. This is an historic first for Australia and shows what can happen when the States get together. New South Wales, South Australia and Victoria are co-operating and moving forward. The Labor governments of all three States are working together for the good of country producers. It is a pity members opposite would not lobby their masters in Canberra to do the same.
Just last month we saw The Nationals sit back and watch as New South Wales was fined over water reform. The Federal Government should be showing leadership, not sitting back and fining New South Wales taxpayers, particularly when this State is leading the way on water reform. Make no mistake: this tagging agreement is a triumph for New South Wales and the State's irrigators and producers. New South Wales has promoted tagging as the only acceptable water interstate trading system. There is one basic reason for this. If we went to an exchange rate system, water that is not available within New South Wales could be then extracted in either South Australia or Victoria. This would have had serious implications for third parties and environmental flows.
Last week's agreement could see the States trading water from later this year using an interim form of tagged trading. Under this system water users in New South Wales could own a share of water in Victoria or South Australia and be bound by the water conditions in that State. In recognition of the decision by Victoria and South Australia to accept tagging as the basis for trade, New South Wales agreed to change the conversion rates for high to low security water to make them competitively neutral. New South Wales has agreed to conversion factors of 0.55 for the Murrumbidgee and 0.6 for the Murray, a fact that was put and agreed to by the relevant irrigation corporations.
All three States have agreed that exit fees and other institutional arrangements in all jurisdictions should be examined by the Australian Competition and Consumer Commission to ensure that they are competitively neutral. We will continue to work to ensure that the market is fair and consistent with the interests of New South Wales irrigators. Once these matters are agreed the New South Wales Government will consult with stakeholders to ensure that the proposed market arrangements are practical and commercial. New South Wales interests will be further safeguarded with the final arrangements, subject to government approval in each jurisdiction.
I am hopeful that water trading could start later this year, depending on resolving all issues satisfactorily to set up New South Wales's position in the market. This shows what can be done when goodwill and co-operation exist. Unfortunately, we have seen precious little leadership from the Federal Government on this matter. New South Wales is leading national water reform, and the tagging agreement is further evidence of 52 LEGISLATIVE COUNCIL 23 May 2006 that. We have gone further than any other State in meeting the indicative targets of the Living Murray Strategy, with projects worth more than $73 million in progress. New South Wales is the only State that has completed a project that will deliver water to the Living Murray Scheme—the Edward River wetlands. We have already identified an initial suite of structural works that will recover an estimated 71.5 gigalitres, including the Darling Anabranch and other projects. These projects are well under way, outlining the State Government's commitment to this scheme.
The Hon. Rick Colless: Why don't you fix the Menindee Lakes?
The Hon. IAN MACDONALD: I am working on it.
The Hon. Rick Colless: You haven't done a thing about it.
The Hon. IAN MACDONALD: The Coalition Government had years but did nothing about it.
The PRESIDENT: Order! I call the Hon. Rick Colless to order.
The Hon. IAN MACDONALD: New South Wales was also the first State to separate water rights from land rights, submit a national water initiative implementation plan, establish an independent pricing regulator, commence water sharing plans covering 80 per cent of water use, introduce the 4 per cent interim trade threshold for permanent trade, and introduce the national water initiative risk assignment framework. It is about time the Howard Government and members opposite started recognising the New South Wales achievements in water reform. I have one thing further to say: We want our $13 million back now!
BOTANY BAY COMMERCIAL FISHING
The Hon. Dr PETER WONG: My question without notice is directed to the Minister for Natural Resources. What are the levels of dioxin and other dangerous industrial contaminants in Botany Bay? Did the levels of such contaminants play any role in the closure of Botany Bay to commercial fishing activities?
The Hon. IAN MACDONALD: No. I think the honourable member is confusing a few issues. Indeed, the closure of Botany Bay to commercial fishing activities was generated and driven by my colleague the Hon. Eddie Obeid when he was in negotiations with recreational fishing interests for a recreational fishing haven in Botany Bay. That was one of 30 recreational fishing havens created by the Hon. Eddie Obeid. Those havens have been a boon to recreational fishing across the State and have contributed greatly to our tourism interests. As I understand it, that is the reason Botany Bay was closed to commercial fishing, although it is now one of the great recreational havens of this State. If the Hon. Dr Peter Wong would like to raise the question with me at another time, I will deal with some of the other issues that I think he has raised in his question.
CHILD GROWTH STANDARDS
The Hon. PATRICIA FORSYTHE: My question without notice is addressed to the Minister for Health. In view of the new World Health Organisation child growth standards, which include new growth indicators for babies based on the average weight-for-age of breastfed babies, what action is the Government taking to ensure that all early childhood nurses, general practitioners and paediatricians are aware of the new standards? Will the Government give consideration to a campaign to better inform all mothers of babies of the health value of breastfeeding?
The Hon. JOHN HATZISTERGOS: I can give some details on our breastfeeding policy but I would have to take the question on notice. For some time I have been championing the value of breastfeeding as a means not only of preventing obesity but also of providing good health for the mother and the child. It has been found that breastfeeding can prevent the onset of breast cancer. I do not have the World Health Organisation guidelines with me. I will look at the issue and provide the honourable member with an answer.
PEDESTRIAN CROSSINGS SAFETY
The Hon. PETER PRIMROSE: My question without notice is addressed to the Minister for Roads. Will the Minister provide the House with information on the Government's latest initiatives regarding pedestrian safety? 23 May 2006 LEGISLATIVE COUNCIL 53
The Hon. ERIC ROOZENDAAL: I commend the honourable member for his interest in this important matter. Earlier this month, in the wake of the tragic accident involving Sophie Delezio on Frenchs Forest Road, Seaforth, I asked the Roads and Traffic Authority [RTA] to conduct an audit of pedestrian crossings on multilane roads. The RTA has come back to me with its report, which found that currently there are 59 pedestrian crossings on multilane State government-controlled roads. I am pleased to inform the House that all 59 pedestrian crossings will be upgraded as part of a $17 million package over three years. The RTA has advised that the best solution will be to replace the crossings with traffic lights at most of these locations. A variety of other solutions, such as reducing the number of traffic lanes, will be considered at a small number of locations.
I am advised that between 2001 and 2005 there were 194 accidents involving pedestrians, 2 fatalities and 376 car accidents on these 59 crossings. The RTA has gradually been upgrading these types of crossings over the past 10 years, but the new program will slash the period needed to improve all of them to just three years. Over the next six months the RTA will undertake a more detailed assessment of each site to confirm the proposals and provide more detailed estimates. This major program of additional work needs to be properly planned. The first year of the program will be focused on planning and design, with most of the roll-out work to take place in the second and third years.
There are also a number of pedestrian crossings on multilane local and regional roads controlled by local councils. The RTA is working with all New South Wales councils to identify a detailed list of all sites in New South Wales with pedestrian crossings currently without lights on multilane roads. We must always be looking to make further improvements on our roads. The New South Wales Government has many road safety priorities: pedestrian safety, the safety of our children around our schools, slowing down motorists and improving black spots on our roads. It is appropriate that road safety is constantly under review. However, drivers must take more responsibility because ultimately they are the ones who are sitting behind the wheels of their motor vehicles.
MACPHERSON STREET, PITTWATER, SPEED CAMERA
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: My question without notice is addressed to the Minister for Roads. Is the Minister aware that a speed camera has been set up outside Middle Harbour School on MacPherson Street, Pittwater, and that this was installed during the period when the 40 kilometres per hour speed limit was introduced in the school zone? Why has the Government not released data from that camera, despite repeated freedom of information requests from the Pedestrian Council of Australia? Will the Government release the data? What does this camera show?
The Hon. ERIC ROOZENDAAL: School zones are an important part of safety for schoolchildren.
[Interruption]
When I am talking about such a serious matter as the safety of our schoolchildren, it disturbs me that there is continual banter from the Opposition, whose members are making silly jokes, trying to denigrate this important issue. Members opposite should be ashamed of themselves. They and their cronies in the other House have been trying to politicise children's safety and school safety. They sit there wearing their dumb smiles. They are a disgrace. The 40 kilometre per hour school zones are a critical part of the schoolchildren's safety package. Honourable members will be well aware that on Sunday we announced a five-point plan to show that we have a clear policy on children's safety in school zones. In the context of pedestrian safety, there is nothing more deadly than a driver speeding through a school zone; that is dangerous behaviour. Unfortunately, despite considerable emphasis being placed on the importance of motorists driving more slowly, a number of drivers are still intent on speeding through school zones. That is why we have announced our new policy of tougher penalties.
[Interruption]
I thank the Deputy Leader of the Opposition for mentioning one of his dopey Federal colleagues.
The PRESIDENT: Order! I call the Hon. Michael Costa to order.
The Hon. ERIC ROOZENDAAL: Members opposite have form about defending the poor driving habits of their colleagues. Recently one of their backbench members was blamed for road rage. There was a citizens right of reply to Parliament over that road rage incident, and now members opposite want to defend Danna Vale, who was caught speeding through a school zone. 54 LEGISLATIVE COUNCIL 23 May 2006
The PRESIDENT: Order! I call the Hon. Dr Arthur Chesterfield-Evans to order.
The Hon. ERIC ROOZENDAAL: I find the behaviour of the Opposition in trying to politicise the important issue of school safety disgusting and disgraceful.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: I ask a supplementary question. On what facts is the Minister's policy based if he will not release the data? Do we get nothing but rhetoric?
The Hon. ERIC ROOZENDAAL: I am glad that question has been asked, because two critical pieces of research have been done and released. One is the trial at 43 schools of the effectiveness of flashing lights. We trialled four different styles of warning devices. One was a static sign, and the others were flashing lights. The results were interesting. There were marked differences between the three different styles of flashing lights. Because I know we can do better and have a more effective and reliable system, the decision was made to go back to the private sector, through an expression of interest that was released today, to encourage the private sector to come back with the latest cutting-edge technology which is highly visible and reliable.
Regarding the issue of reliability and school safety, there was another trial into speed zones. The trial looked at the effect of speed cameras in school zones. The evidence is overwhelming that where school zones have speed cameras and they are displayed there is a marked drop in the number of drivers speeding. That means an immediate improvement in the safety of schoolchildren around the State. That is why we have announced the use of 50 speed cameras, both fixed and mobile, so when honourable members drive through a school zone, or Danna Vale speeds through a school zone, they will not know whether a speed camera is there. That is sending a strong message to drivers that speeding in school zones is unacceptable and deadly behaviour.
The Hon. JOHN DELLA BOSCA: I suggest that if honourable members have further questions, they place them on notice.
Questions without notice concluded.
INDEPENDENT COMMISSION AGAINST CORRUPTION AMENDMENT (OPERATIONS REVIEW COMMITTEE) BILL
Second Reading
The Hon. JOHN DELLA BOSCA (Minister for Finance, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, and Vice-President of the Executive Council) [5.02 p.m.]: I move:
That this bill be now read a second time.
As the speech has already been delivered in the other place, I seek leave to incorporate it in Hansard.
Leave granted.
The Operations Review Committee's primary role is to advise the Independent Commission Against Corruption before it makes a decision not to investigate a complaint or to discontinue an investigation.
In 2004, the Government commissioned Mr McClintock to review the Independent Commission Against Corruption Act. The terms of reference included reviewing the adequacy of accountability mechanisms for the Commission.
In his report in January 2005, Mr McClintock recommended that the Operations Review Committee be abolished and an Office of the Inspector of the Commission be created.
The Government established the Office of the Inspector which commenced operation on 1 July 2005.
The Inspector's principal functions are to audit the Commission's operations, deal with complaints about the Commission and review the Commission's procedures.
At that time, the Government retained the Operations Review Committee. The Government was concerned to allow the new accountability mechanism, the Inspector, to commence operations before considering further changes.
In 2000, when the previous ICAC Parliamentary Committee originally proposed the Inspector be established, it suggested that the need for the Operations Review Committee be reviewed after the Inspector operates for 12 months. 23 May 2006 LEGISLATIVE COUNCIL 55
The Inspector has now operated for nine months. The Government considers, therefore, that it is now appropriate to implement Mr McClintock's recommendation and remove the Operations Review Committee.
The McClintock report stated that despite the skill and dedication of its members, the Operations Review Committee is a limited accountability mechanism.
He stated that the Inspector provides a structurally superior form of accountability than the Operations Review Committee for a number of reasons.
The reasons for this include the fact that the Inspector has greater access to the Commission's records, the Inspector is completely independent (whereas the Chair of the Operations Review Committee is the Commissioner of the Commission) and the Inspector reports to Parliament.
While the Inspector does not have the same function as the Operations Review Committee, the Government is of the view that he will achieve similar outcomes by ensuring that the Commission's practices and procedures are effective.
Certainly, Mr McClintock reported that the Inspector would provide a more effective accountability mechanism than the Operations Review Committee.
The Inspector is managing the volume of complaints well. He also has sufficient time and resources to focus appropriate attention on reviewing the Commission's procedures and on his auditing role.
This will ensure that a more systematic approach can be taken, improving the quality of the Commission's decision making processes.
Indeed, if there is a change in the pattern of complaints around the Commission's decisions, the Inspector could initiate an audit.
The Government agrees with Mr McClintock's view that proper accountability of the Commission does not require both the Inspector and the Operations Review Committee to continue to exist.
The establishment of the Office of the Inspector itself provides a sound accountability mechanism for the Commission.
The Inspector has confirmed that he does not object to the abolition of the Operations Review Committee.
I would like to thank the members of the Operations Review Committee for their dedication and thank them for their efforts to date.
I commend the bill to the House.
The Hon. DAVID CLARKE [5.02 p.m.]: The Opposition does not oppose the Independent Commission Against Corruption Amendment (Operations Review Committee) Bill whose purpose is to abolish the Operations Review Committee, whose job has been to advise the Commissioner of the Independent Commission Against Corruption [ICAC] whether the commission should investigate a complaint or discontinue an investigation of such a complaint. This action is necessary because, pursuant to the Independent Commission Against Corruption Amendment Act, the office of the Inspector of the ICAC was established for the purpose of auditing and investigating any aspect of ICAC's operation, and any conduct of officers of the ICAC, including complaints about the commission. The office commenced operation on 1 July 2005 and, although it does not have the same functions as the now to be discontinued Operations Review Committee, the Government is of the view that it will achieve similar outcomes. The bill removes the duplication of roles between the two bodies.
The bill implements recommendations contained in a report prepared by Mr McClintock and issued in January 2005 following his appointment by the Government in 2004 to review the Independent Commission Against Corruption Act. Mr McClintock found that a new office of an inspector would provide a more structurally appropriate form of accountability than the existing Operations Review Committee, for a number of reasons, not least of which was the fact that the new office of the inspector would be an independent position whereas the chairman of the Operations Review Committee also acted as the Commissioner of the ICAC.
At the time the office of the inspector was established, the Government did not discontinue immediately the existing Operations Review Committee because it believed that the newly created office of the inspector should operate for a period to enable its functioning to be observed and reviewed. Ancillary to, and as a consequence of, the Operations Review Committee, the bill clarifies that a person who ceases to hold office as a member of the committee because of its abolition is not entitled to remuneration or compensation because of the loss of that office. The bill makes it clear that the committee has no ongoing functions in relation to complaints made or matters referred before its abolition and that its former members continue to be bound by the secrecy provisions of the Independent Commission Against Corruption Act.
As honourable members will recall, the ICAC was an initiative of a Coalition government, which created it in 1988 for the purpose of exposing corruption in public life. The commission has an uneven and 56 LEGISLATIVE COUNCIL 23 May 2006 erratic performance history and many in the community have been concerned that it could have been far more successful than it has been in achieving the purpose for which it was established. Hopefully, the position of office of the inspector will bring greater scrutiny to the operations and functioning of the ICAC. The bill is a general housekeeping measure to discontinue the Operations Review Committee, which has, for all intents and purposes, been replaced by the office of the inspector. As I indicated, the Opposition does not oppose the bill but we will watch to see whether the Government's assertion that the new office of the inspector will fulfil the functions of the now to be discontinued Operations Review Committee is correct. Only time will tell.
The DEPUTY-PRESIDENT (The Hon. Amanda Fazio): I remind honourable members that the Hon. Robert Brown is about to give his inaugural speech. I ask honourable members to extend the usual courtesies to him.
The Hon. ROBERT BROWN [5.06 p.m.]: (Inaugural Speech): In general, the Shooters Party supports the Independent Commission Against Corruption Amendment (Operations Review Committee) Bill. I understand my colleagues from the Christian Democratic Party have some concerns about certain provisions, and I am sure I will be informed by the debate. Honourable members will be aware that this is my inaugural speech, so perhaps it is in order that I take a few minutes to properly introduce myself and to thank those who have contributed to my becoming a member of this House.
John Tingle—the Shooters Party's founder and first parliamentary representative—is here in the President's Gallery tonight. John retired from Parliament, giving his valedictory speech in this Chamber on Tuesday 2 May this year. At the party's State conference in 2005, I was elected to be the party's parliamentary representative when John retired. I am honoured that my colleagues in the party have placed their faith in me; however, I have some trepidation as to whether I can measure up to John's exemplary standards and record of achievements.
So honourable members may better understand with whom they will deal as the Shooters Party's new parliamentary representative, I will briefly relate my background. I came into the world in a working-class family in the inner-Sydney suburb of Leichhardt, in New South Wales, the fourth child and only son of a doting father and an embarrassed mother. Mother was somewhat embarrassed, it seems, because I came along 15 years after the youngest of my three sisters. In 1956 my family moved to a brand new, two-bedroom fibro house in Putney, known in those days as "struggle town".
I grew up and attended school in the Ryde district, with ample open spaces and plenty of bush gullies. To a young Leichhardt boy it was like a wilderness paradise—with rabbits. I developed an early taste for wild- harvested underground mutton—much to my mother's horror. To me they tasted so much better than the two- for-sixpence rabbits Mr Lamott's horse-drawn cart plied through the streets of Leichhardt. One of my early memories was of Mr Lamott's cry, "Rabbits, clothes props, getcha rabbits fresh."
My father's family all came from New England—Woolomin Flat to be precise. That is near Nundle, for the geographically embarrassed. Dad left school at the age of 12, and supported his family by trapping rabbits, brick making, and working as a general farm hand. He later moved to Sydney, and entered the public health service as a male nurse—that is what they were called in those days—working at Callan Park. My mother also worked as a mental health nurse at Callan Park. During the Second World War my father served in B Company, 2nd/3rd Machine Gun Battalion, and saw action in what was then Dutch New Guinea.
Although a child of the city, I spent as much of my youth as possible on the other side of the sandstone curtain, hunting and fishing with my father and his brothers, mostly in the north-west of the State and in the New England area. These early experiences are precious to me, and my time spent in the bush with my father has largely contributed to my life philosophies today. I left school at the age of 15 and commenced an apprenticeship in January 1966 at Cockatoo Island Dockyard as a fitter and turner. That was the year I first laid eyes on my then future wife, Louise. Apprenticeships in those days were of five years duration, changing to four years when I was already in my fifth year. I loved practical engineering, particularly what is termed heavy engineering, and I went on to eventually hold the position of plant superintendent at the dockyard, which was a pretty big deal in those days. In 1978 I left to take up a management position with a Lend Lease subsidiary company called Environ. That was, to say the least, a real culture shock—not only to me but to my then young family.
I transferred to James Hardie in 1985, when Environ was sold to that company. I subsequently left James Hardie in 1989 to pursue private family business interests. Concurrent with those activities, from the mid- 23 May 2006 LEGISLATIVE COUNCIL 57
1970s up to 1982, my wife and I were in a partnership with a former dockyard colleague, running a game fishing charter business in Fiji. That business venture came to an end upon the tragic death, whilst at sea, of our business partner, Jonathan Chatres Willis. Fate repeated itself when Robert Moss, a friend and business partner in one of our later family enterprises, was similarly tragically killed in November 2004 in a boating accident on Lake Eucumbene. I have been managing the family companies since, and now with my election to this place I have handed the management over to my sons.
Personally I consider myself, first and foremost, a family man, and I say that my family always comes first. When asked who I am, I invariably answer simply "a hunter". I treasure integrity, independence, resourcefulness, loyalty and honour. Now, I can imagine some mental eyebrow raising and eyeball rolling from honourable members about that statement. That is understandable, because those qualities can probably be described as somewhat lofty goals. I do not, however, claim to have always met my own standards. Take my family life, for instance. The pressures and stresses I have placed upon my family in my pursuit of the Shooters Party's goals over the past 13-odd years have been a substantial burden on them all. That they have weathered this period and supported me so strongly is humbling. I wish to thank my beautiful wife, Louise, my sons, Eric and Owen, and their families for being so heroically patient. I see in the gallery many of my friends and supporters, and I would like to publicly thank each and every one of them for their loyalty, their belief in me, and their advice and guidance.
I would also like to pay my respects to a fellow hunter—indeed, a respected elder of our brotherhood— who, sadly, passed away on 8 May this year. Gordon Beresford Alford was a man among men in the hunting fraternity. He was a lot like my father—quiet, compassionate and always courteous. Both were great role models. Gordon will be sadly missed by all of us. May he rest in peace. I would like to thank my political mentor, my predecessor and my very good friend, John Tingle. When I look through Hansard of 2 May and the replies to John's valedictory speech, it is not hard to identify strong themes that run through the honourable members' replies. If I may, I will quote from some of them. The Hon. John Della Bosca said:
I place on the record that he always exercises proper judgment—I am sure other members will want to add to that—with absolute integrity.
The Hon. Duncan Gay said:
He is one who deserves the title "Hon.". His dealings with people in this House have been exemplary …
As the Leader of the Government said, John's conciseness and his ability to correctly use the language is a great lesson to all of us and something we should take on board.
Reverend the Hon. Fred Nile said:
His service has been above any form of criticism and he has been a model member of the Legislative Council. In those times he has shown great patience, a spirit of co-operation, and thoughtfulness.
The Hon. Dr Arthur Chesterfield-Evans said:
I think it is the observation of all members of this House that he is courteous and pleasant and rarely raises his voice or loses his temper.
I will have to remember that. The Hon. Ian Macdonald said:
Over the last 11 years John has been one of the towers of strength in this place, not only in defending it on many occasions from the various attacks made on it but also in working through and resolving difficulties that have arisen in the Chamber.
Mr Ian Cohen said:
He is always friendly and very reasonable and he has always been honest and forthright in his assessment of my many representations over the years.
The Hon. David Oldfield said:
He has brought a great deal of sense and logic to various other debates at different times. Shooters have a great deal for which to thank the Hon. John Tingle.
The Hon. Eddie Obeid said:
I think all of us would wish to emulate John's precise manner when contributing to debate in this House. 58 LEGISLATIVE COUNCIL 23 May 2006
The Hon. Peter Breen said:
I agree with remarks of the Hon. John Della Bosca that John Tingle has shown the highest integrity in his dealings with people in this Chamber.
I could go on. However, it is clearly evident that consistently and repeatedly the replies all acknowledge John's succinct and accurate speaking manner, his courtesy and, above all, his integrity. The debt owed to John—by hunters and shooters, fishers and, indeed, all law-abiding, freedom-loving citizens of New South Wales—will not be easy to repay. He is an outstanding Australian, and I am proud to call him my friend and mentor. This leads me to outline what the honourable members of this House can expect from Robert Brown, MLC. Somewhat pugnacious and aggressive by nature, I am told, and never backward in putting my beliefs forward, I am, however, very mindful of John Tingle's succinct advice to me:
Robert, be nice! And please don't waggle your finger at Government Ministers.
Mate, I'll try. And what of the Shooters Party agenda? Generally, it has been the Shooters Party's practice to allow the government of the day to govern—that sounds somewhat presumptuous—except where the government's agenda clearly is not in the best interests of our broad constituency or where that agenda is in clear conflict with the principles of sensible management of economic or social issues. As an example of the latter, I believe that the vast majority of the party's supporters—like the vast majority of Australian citizens—are not in favour of the sale of the people's water and the people's infrastructure of the Snowy scheme to private interests. If the New South Wales Government is still intent on selling Snowy Hydro, perhaps the Prime Minister could be persuaded to use some of his—no, our—remaining surplus, about $10 billion I think, to buy out New South Wales and Victorian shares.
It probably goes without saying that the Shooters Party will work to support and protect the bicameral parliamentary system that we enjoy in New South Wales. I am sure all the crossbench members support that objective. Indeed, the Hon. Ian Macdonald, in reply to John Tingle's valedictory speech, highlighted John's willingness to champion and protect this House from some of the less well-informed commentary that seems to pervade the media from time to time. States' rights is another issue that concerns shooters. The purse string diplomacy exercised by the Federal Government in relation to the so-called national gun laws is a glaring example of the abuse of States' rights. Why worry about a bothersome Constitution when you can simply bully? Many in this Chamber would level the same accusation at the Federal Government in the matter of the recent changes to the industrial relations laws. It is a great pity that the States now squealing about Federal bullying did not squeal so loudly about the Prime Minister's expensive and totally ineffective gun buy-back scheme. The money wasted on that scheme would have paid for a lot of additional front-line police and an awful lot of additional trained nurses. There may even have been some money left over for our underfunded education and training systems or our third-world mental health system.
The Shooters Party's members cover a broad spectrum of political leanings. Our surveys have shown that they are roughly evenly split between Labor and conservative voters when it comes to electing members of the Legislative Assembly. All shooters have had a disproportionate measure of regulation and legislation shoved down their throats since the early 1990s. Most of it is bad legislation and over-regulation—the Game and Feral Animal Control Act 2002 apart, of course. In fact, shooters probably only started to realise they were being singled out in the late 1980s, by policies being introduced by the Unsworth Government. Not to be outdone, however, the Greiner Government followed suit in 1992. In fact, it was then Police Minister Ted Pickering's light-hearted disdain for shooters' unity that caused John Tingle to form the Shooters Party in 1992. The fact that he was right probably does not matter.
There have been imitators of the Shooters Party at various times, all claiming to advance the interests of shooters. A party with the acronym GOSH ran in the infamous 1999 upper House tablecloth election and managed to skim about 26,000 primary votes from the Shooters Party, and that hurt. Only recently we have seen a glut of recruitment flyers flooding the shooting clubs and hunting clubs in New South Wales from yet another political party for firearm owners. Honourable members will note that I am shaking in my boots. Perhaps other incumbent political parties should be quaking. The name of this newbie is the Liberal Democratic Party, which is a good one. Although it appears that the party is currently registered only in the Australian Capital Territory, its propaganda promises Federal and State registration and campaigns. I bring this to the attention of honourable members to assure all here that the Shooters Party is not connected in any way to this political group.
The Shooters Party will continue to work with the government of the day to improve the legislation and regulations related to firearms ownership and use. As an immediate example, the new licence testing regime will 23 May 2006 LEGISLATIVE COUNCIL 59 need some finetuning. Who better to advise the Government than the shooters? We will continue to encourage the Government to broaden the implementation of conservation through sustainable use—terrestrial and marine. I mention marine because for too long the fishers have blithely ignored the insidious advance of animal rights extremist ideology into the political spectrum. To those fishers I simply say: Open your eyes and look at the increasing attacks by these zealots on farming and hunting, and be assured that the Shooters Party will continue to fight for you. We will continue to argue for worthwhile access to public lands and waterways for all users. We do not believe in lock it up as a workable solution to conservation, whether it be by the endless declaration of keep-out national parks and reserves or by the proposed declaration of massive no-go marine reserves.
Marine reserves are necessary, but they should be properly planned. Contemporary hunters, fishers, foresters and farmers are all interested in the conservation of biodiversity. They do not need city-based extremists to lecture them on stewardship. Perhaps they need someone to champion their collective conservation ethic, and the Shooters Party will be that champion. In conclusion, if I can live up to even a modicum of John Tingle's standards, then I hope I will serve the Shooters Party and the Legislative Council well. I thank honourable members for their polite forbearance and the courtesy extended to me during my inaugural speech in this place.
Reverend the Hon. FRED NILE [5.26 p.m.]: The Christian Democratic Party supports the Independent Commission Against Corruption Amendment (Operations Review Committee) Bill. The bill has a simple objective: to abolish the Operations Review Committee of the Independent Commission Against Corruption [ICAC]. The committee's primary role was to advise the Independent Commission Against Corruption on decisions not to investigate a complaint or to discontinue an investigation. In January 2005 Mr McClintock reviewed the Independent Commission Against Corruption Act and recommended that the Operations Review Committee be abolished and that an office of the ICAC inspector be created. The Government established the Office of the Inspector of the Independent Commission Against Corruption, and that office commenced operation on 1 July 2005. The inspector's principal functions are to audit the ICAC's operations, deal with complaints about the ICAC and review ICAC procedures. The inspectorate has now operated for almost 12 months.
The Government has introduced this legislation believing it is appropriate to implement Mr McClintock's recommendation and to abolish the Operations Review Committee. Mr McClintock's report stated that the inspectorate would provide a structurally superior form of accountability because the inspector would have greater access to ICAC records and, most importantly, would be completely independent. The chair of the Operations Review Committee is the Commissioner of the ICAC and the inspector reports to the Parliament. Obviously, the inspector does not have the same function as the Operations Review Committee. However, it is hoped that he will achieve similar outcomes by ensuring that the ICAC's practices and procedures are effective. In particular, if there is a change in the pattern of complaints about the ICAC's decisions, the inspector can initiate an audit.
I am a member of the Committee on the Independent Commission Against Corruption, which supervises the ICAC, and I have attended a number of meetings at which the inspector has briefed committee members and kept them up to date with the establishment of his office, its staffing and the fit-out. The inspector has been very open to suggestions from the parliamentary committee. However, I have been concerned that he may not have the resources he requires to carry out his role effectively. As I said, I have a concern because I believe that, through the establishment of the office of the inspector and the abolition of the Operations Review Committee, the Government intends that in due course the inspector will effectively take over the committee's role. There appears to be a gap between the structure of the inspector's office and the structure of the Operations Review Committee. The committee's primary role was to advise the ICAC before it made a decision not to investigate a complaint or to discontinue an investigation.
As far as I can assess as a result of attending the briefings given by the inspector, he will be required to respond to complaints from people who are unhappy with the way the ICAC has dealt with their complaint. Whereas the Operations Review Committee was able to investigate a complaint, or the termination of an investigation, and to advise the ICAC in that area, it appears that the inspector will respond to complaints from people who are affected by the ICAC's efficiency, its tardiness in responding to a complaint, or its failure to respond to a complaint. There appears to be a loophole that could be easily addressed if the ICAC were required to advise the inspector in the same way that it was required to advise the Operations Review Committee about any decision not to investigate a complaint or to discontinue an investigation. Perhaps that could be achieved by introducing a regulation to ensure that that information is conveyed to the inspector. It may be possible to do that through a Minister's directive to the ICAC. As I said, as distinct from the Operations Review Committee, 60 LEGISLATIVE COUNCIL 23 May 2006 the inspector's principal functions are to audit the ICAC's operations and deal with complaints, but those complaints must be lodged by a member of the public. The inspector also has the ability to review the ICAC's procedures.
If the powers of the Operations Review Committee were to be clearly transferred to the inspector where there is a gap—and I believe there is—it would help the inspector to be more effective. I would be concerned if there were any future attempt to limit the powers of the ICAC, to frustrate its activities or to reduce its funding. I believe that the ICAC performs an important role and to do so it must have adequate funding. I know that there has been some tension over the years with various ICAC commissioners who believed that if the Government was not happy with them it would be reflected in the way the Government allocated funds for the ICAC in the budget. I urge the Government to give its full support to the ICAC and to ensure that the inspector, if necessary—and I believe it is necessary—is given any additional powers that the Operations Review Committee has, so that the inspector can do a full and comprehensive job.
The Hon. JOHN DELLA BOSCA (Minister for Finance, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, and Vice-President of the Executive Council) [5.30 p.m.], in reply: I thank honourable members for their contributions to the debate. I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.
CRIMES AMENDMENT (ORGANISED CAR AND BOAT THEFT) BILL
Second Reading
The Hon. JOHN DELLA BOSCA (Minister for Finance, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, and Vice-President of the Executive Council) [5.32 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 Government is pleased to introduce the Crimes Amendment (Organised Car and Boat Theft) Bill 2006.
The Bill proposes amendments to the Crimes Act 1900 which will create several new offences targeted at the practice of car and boat rebirthing. The most serious of the new offences, carrying 14 years imprisonment, is facilitating an organised car or boat rebirthing activity. The Bill will also extend existing theft-related offences of taking motor vehicles, so that they cover taking boats as well.
The Government has a long-standing commitment to assist police in cracking down on car and boat rebirthing. It is estimated that rebirthing activities cost New South Wales $100 million annually.
The term "rebirthing" covers a range of illegal activities that have one thing in common—the aim is to allow a stolen vehicle (or a vehicle which has parts that have been stolen) to be passed off, and registered, as a legitimate vehicle.
Organised car thieves and their accomplices perform a wide range of activities in order to rebirth vehicles. Just one example is where a rebirthing syndicate steals a car, strips some parts out of it, then dumps or burns the chassis. The chassis is recovered by police. Its details are taken off the stolen car list. Usually ownership of it vests in the car insurance company. The insurance company writes off the chassis and sells it at auction. The original thieves will then buy the chassis on the open market at auction, which makes them the lawful owners of the car. They then add back to the chassis the parts they stripped out of it. They re- register or sell the car, pretending that they innocently bought the chassis and fixed it up with legitimately bought spare parts. They may even have drawn up bogus receipts for the spare parts that they stripped from the stolen car.
This is just one example of the many different and ingenious ways in which criminal syndicates steal motor vehicles and boats, and manipulate their registered identities so that they can be re-registered and sold to unsuspecting buyers.
There are many costs of rebirthing to the community.
Firstly, rebirthing means that the stolen vehicle will not be recovered, in contrast to 'joyriding'-style car theft, where the vehicle is usually recovered. This results in true owners being deprived of their cars permanently, and higher insurance premiums for us all. In addition, if a rebirthed car that has been on-sold is subsequently identified, seized and taken back to its true owner, the honest buyer who paid market price for the car may be left with nothing. 23 May 2006 LEGISLATIVE COUNCIL 61
Secondly, rebirthing is dangerous. It may involve serious physical alterations to the car, such as grafting the front end of one car to the back end of another. This creates a structural flaw which in an accident could mean that the car disintegrates with its innocent new owners inside.
Thirdly, because rebirthing is potentially lucrative, it entices young people into becoming involved with organised criminal gangs. It can corrupt legitimate tradespeople who work with vehicles, because rebirthing gangs actively seek to 'recruit' professionals working in the industries of motor vehicle repair, wrecking, sale and registration. These people can provide the paperwork to give the rebirthers' illegal activities the veneer of legitimacy.
These new offences provide deterrence against being involved in rebirthing, and send a clear message to those thinking of being involved in rebirthing activity that the punishment will far outweigh any illegal benefits.
Even though rebirthers may commit a range of existing offences, the law is not currently structured to effectively deal with the methods that rebirthing gangs use.
This Bill addresses the challenge of creating an offence that covers all behaviours that constitute rebirthing. It imposes strict penalties for rebirthing, and closes any loopholes in the criminal law that rebirthers might try to exploit.
The major innovation of the Bill is to create an offence of knowingly facilitating an organised car or boat rebirthing activity, carrying a maximum penalty of 14 years imprisonment.
In addition, the Bill also creates a number of other offences that target dishonest behaviour that forms a part of rebirthing activity. Those new offences are related to:
· interfering with identification information (for example compliance plates that are used in the registration of vehicles) · dishonestly possessing vehicles or parts of vehicles where the identification information on that vehicle or part has been altered, and · possessing vehicle identification plates unattached to a vehicle, when they are designed to be attached.
These secondary offences still offer appropriately harsh penalties—5 years or 7 years imprisonment per offence—and it is expected they may be used when a person is found engaging in dishonest behaviour with vehicle identification information, but police cannot prove that the person is involved in a rebirthing syndicate.
The offences created by the Bill generally apply to vessels also, reflecting the fact that vessels are a valuable means of transportation and are also the target of rebirthers.
I will now turn to the detail of the Bill.
Schedule 1 clauses 1–3 omit an outdated definition of "vessel" from the Crimes Act.
Schedule 1 clauses 4 and 7 move the offence that was previously called car stealing, from section 154AA of the Crimes Act, so that it appears in the new Subdivision of the Crimes Act dealing with motor vehicle and vessel theft. The offence will now be section 154F of the Crimes Act. The offence is also amended to provide that it is committed by a person who steals a vessel. "Vessel" is defined as a vessel within the meaning of the Marine Safety Act 1998.
Schedule 1 clauses 5 and 6 extend the offence that was previously known as carjacking, contrary to section 154C of the Crimes Act, so that the offence is also committed where the offender takes a vessel by force or when an occupant is on board. That offence has been re-named appropriately.
Schedule 1 clause 7 inserts a new Subdivision in the Crimes Act entitled "Offences relating to theft of motor vehicles and vessels". That Subdivision contains all of the new rebirthing-related offences.
The proposed new section 154G of the Crimes Act creates the offence of knowingly facilitating organised car or boat rebirthing activities. For the purpose of the offence, a "car or boat rebirthing activity" involves any one of:
· stealing a car or boat, or receiving a stolen car or boat · interfering with a part of car or boat with the intention of either disguising its identity, or concealing the fact that it is stolen · putting stolen parts on a car or boat · registering a car or boat that is either stolen or has stolen parts attached to it, or · supplying or offering to supply a stolen car or boat.
For the purpose of the offence, the car or boat rebirthing is carried out on an "organised basis" if it is done in a way that indicates it is done on more than one occasion and involves more than one person, and it is done for profit or gain.
For the purpose of the offence, the word "facilitates" is defined broadly to include anything that assists in the car or boat rebirthing activity being carried out, including providing the premises in which the activity is carried out.
The offence has been specifically designed to be relevant to Australian crime networks. The definition of the term "organised basis" has been constructed to reflect the reality of car rebirthing in Australia.
Organised crime in Australia is not generally run like a Mafia-style hierarchy, controlled by an absolute ruler, with a fixed structure like a company. More commonly in Australia, rebirthing is committed as part of a more fluid, entrepreneurial kind of organised crime, built around networks of contacts. 62 LEGISLATIVE COUNCIL 23 May 2006
In a typical case, a car rebirther may telephone several criminal contacts seeking a particular make of stolen car. Once the stolen car has been supplied, the rebirther will seek out other contacts to find premises in which to alter the car, and a skilled person to forge identification information. Once the car has been rebirthed, the original rebirther may not have any direct involvement in re-registering the car or selling it on the open market. It might be passed to another criminal group, here or possibly even interstate or overseas, for presentation to the authorities, re-registering and sale.
The rebirthers' method of operation is compartmentalised. In the example given, the person who makes a false VIN plate has no involvement in the re-registration process, and may not even know who the people are who will present the car for fraudulent re- registration.
Proposed section 154G(5) makes it clear that it does not matter whether the activity is carried out under the direction of any particular person, or whether the same people were always involved in the rebirthing. It does not even matter that the accused didn't know any of the other participants in the rebirthing ring. If the person has knowingly participated in a car or boat rebirthing activity, also knowing that the activity as a whole is carried out on an organised basis, the person is guilty of the offence created by proposed section 154G, and is liable to 14 years imprisonment.
Proposed section 154H creates new offences which are related to interference or other dishonest dealings with a "unique identifier" of a vehicle. A unique identifier means any numbers, letters or symbols marked on a vehicle or part, or stored electronically in the vehicle or part, for the primary purpose of allowing the vehicle or part to be distinguished from all others, or allowing a vehicle batch to be identified. Most obviously, a unique identifier will include a number plate, a compliance plate and a vehicle identification number or VIN. However, other things are unique identifiers as well: for example, part numbers that may be etched into vehicle parts by the manufacturer, and electronic identification information stored in a modern car's computer. Unique identifiers are not on the car for a mechanical or aesthetic purpose—their primary purpose is to help identify the vehicle.
Proposed section 154H establishes the following offences relating to unique identifiers:
· the offence of dishonestly interfering with or copying a unique identifier · the offence of possessing a motor vehicle or part with the intention of dishonestly interfering with or copying a unique identifier · the offence of dishonestly making a unique identifier or purported unique identifier, and · the offence of knowingly inducing another person to accept any information attached to a vehicle or part as a genuine unique identifier for the vehicle or part, when it is not.
Each of these offences carries a maximum penalty of 7 years imprisonment.
Proposed section 154I introduces the offence of dishonestly having possession of a motor vehicle or part that has a unique identifier that has been interfered with. This offence carries a maximum penalty of 5 years imprisonment.
The offences under proposed sections 154G, 154H and 154I apply to vessels and their parts in exactly the same way that they apply to motor vehicles.
Proposed section 154J introduces the offence of having, without reasonable excuse, a vehicle identification plate detached from a vehicle. This offence is particularly intended to target persons who improperly remove VIN plates or compliance plates from vehicles. Those plates are only valid for the particular vehicle they are attached to, and should only be removed by those having particular authority to do so. Removing them, or possessing fabricated or altered plates that are unattached to a vehicle (and so can be added to a stolen vehicle when one becomes available) is a crucial step in rebirthing; it is highly unlikely there will be a legitimate reason for an owner or vehicle repairer to remove these plates. Hence the offence is one of strict liability, requiring the defendant to prove a reasonable excuse for having the plate detached from a vehicle. This offence carries a maximum penalty of 5 years' imprisonment.
Schedule 1 clauses 8, 9 and 10 of the Bill amend the offence of receiving stolen goods contrary to section 188 of the Crimes Act. The amendments provide that the elevated maximum penalty of 12 years imprisonment that applies to receiving motor vehicles or motor vehicle parts, also applies to receiving vessels and their parts.
Schedule 1 clauses 11 to 14 of the Bill amend the offence of being unlawfully in possession of property—commonly known as "goods in custody"—contrary to section 527C of the Crimes Act. The amendments provide that the elevated maximum penalty of 1 year imprisonment that applies to offences under the section involving motor vehicles or motor vehicle parts, also apply to unlawful dealings with vessels and their parts.
The Bill represents an important part of the Government's anti-gang strategy. The specifically targeted offences that it creates, give police added power in their crackdown against car rebirthing gangs and those who work for them.
I commend the Bill to the House.
The Hon. DAVID CLARKE [5.32 p.m.]: The stealing of motor vehicles for the purpose of removing identifying features or parts and then rebuilding or altering them with parts from other vehicles for the purposes of selling the reconstructed vehicles in the used-car market has grown to become a highly sophisticated and organised but nevertheless illegal industry for the criminal underworld. It is a large and growing criminal operation that the Government estimates costs the community in excess of $100 million per year. It involves the theft of some 8,600 vehicles annually specifically for this purpose. In fact, so widespread has this criminal industry become that it has acquired its own descriptive name—rebirthing—which encompasses a wide range of criminal actions undertaken for the purpose of recycling stolen vehicles in the used-car market by means of removing identifying features and rebuilding them so that they cannot be identified as stolen. 23 May 2006 LEGISLATIVE COUNCIL 63
Whilst each of the individual actions involved in this operation is diverse, the end purpose is the same. Currently there would be many thousands of such illegally rebirthed vehicles being driven on New South Wales roads by unsuspecting owners. It is a criminal industry of serious proportions which, because of its widespread organisational base and constantly evolving sophistication, needs to be specifically targeted, hence the necessity for the Crimes Amendment (Organised Car and Boat Theft) Bill. The Opposition supports the bill. For some time it has been advocating new initiatives to combat this type of criminal activity. The bill amends the Crimes Act 1900 and the Marine Safety Act 1998 to create several new offences relating to the theft of motor vehicles and vessels, including an offence of facilitating an organised car or boat rebirthing activity.
Specifically the offence of car stealing is repeated and re-enacted so that it extends to vessels as well as other motor vehicles, and other existing offences relating to stolen motor vehicles or motor vehicle parts are extended to stolen vessels or vessel parts. A new offence is created of knowingly facilitating a car or boat rebirthing activity that is carried out on an organised basis. That offence carries a maximum penalty of 14 years imprisonment. A car or boat rebuilding activity involves one or more of the following: interfering with a vehicle or vessel, or part thereof, or a unique identifier, for the purpose of disguising or concealing the fact that a vehicle or vessel, or part thereof, is stolen; affixing stolen parts to a vehicle or vessel; interfering with a unique identifier that wholly or partly identifies a vehicle or vessel for registration under the law for the purpose of disguising or misrepresenting the identity of the vehicle or vessel; registering a stolen vehicle or vessel or a vehicle or vessel with stolen parts affixed to it; and supplying, or offering to supply, a stolen vehicle or vessel.
A "unique identifier" means any numbers, letters, symbols or other identification on a vehicle or vessel or identification information stored in electronic form in a vehicle or vessel for the purpose of distinguishing the vehicle or vessel, or part thereof, from all others. Facilitating a "rebirthing activity" is broadly defined to include any step taken that is part of the activity, providing finance or providing premises used in connection with the activity. Rebirthing activity is considered to be carried out on an organised basis if it is planned, organised, structured or carried out on more than one occasion and involving more than one participant, and if it is carried out for profit or gain.
A number of other new offences are created which relate to improperly interfering with, copying, making or using identification information of a vehicle or vessel used for the purpose of distinguishing it from other vehicles or vessels. New offences have been created of dishonestly having possession of a vehicle or vessel, or part thereof, that has a unique identifier that has been interfered with, and being in possession of a vehicle identification plate not attached to the vehicle to which it relates. The existing offence under the Crimes Act known as "car-jacking", which involves taking a motor vehicle with assault or when a person is in it or on it, is extended to similar conduct involving the taking of a vessel within the meaning of the Marine Safety Act 1998, as too is the existing offence of being unlawfully in possession of a motor vehicle, or part thereof, that may be reasonably suspected to have been stolen.
The Criminal Procedure Act 1986 is amended to ensure that the newly re-enacted offence of car stealing and the newly enacted offence relating to vessels continue to be triable summarily unless the prosecutor or the person charged elects otherwise. This bill clarifies and makes crystal clear the fact that actions that may be regarded by some as constituting only a small and insignificant part of a major criminal enterprise are, in fact, essential to the success of the overall criminal conspiracy. Rebirthing is a particularly corrupting and corrosive activity because it relies on enticing ordinary and normally honest tradesmen to be part of a process that far too frequently they rationalise does not really involve them in a breach of the law at all and that if it does then it is only a very minor breach of the law. The adverse consequences of rebirthing vehicle crime fall disproportionately on the shoulders of the more economically disadvantaged in society, such as pensioners, because they are more likely to be the ones who do not have adequate or, indeed, any motor vehicle property insurance.
Unlike those who have legal recourse for vehicle loss or damage negligently caused by another party, no such option is available to those who are uninsured and have their motor vehicle stolen. The rebirthing of motor vehicles contributes to increased injuries and fatalities on our roads because frequently such vehicles have been reconstructed in a substandard, shoddy and negligent manner, having avoided normal quality-control standards. The rackets involved in the rebirthing scam need to be closed down. The New South Wales public needs proper protection. People who normally would never contemplate criminal conduct but who see so-called minor involvement in the rebirthing industry as not really criminal need to be aware that even minor involvement is an essential and integral part of the overall criminal process. That is why this bill is so important. As I indicated earlier, the Opposition supports the passage of the bill. 64 LEGISLATIVE COUNCIL 23 May 2006
Reverend the Hon. FRED NILE [5.40 p.m.]: The Christian Democratic Party supports the Crimes Amendment (Organised Car and Boat Theft) Bill, an important bill that highlights the necessity for governments to deal with organised crime as it becomes more sophisticated in cities such as Sydney, Los Angeles, New York and so on, and for legislation to combat such crime. The bill amends the Crimes Act 1900 to create new offences that target organised motor vehicle crime. The offence of facilitating an organised car or boat rebirthing activity carries up to 14 years imprisonment, and extends the existing offences relating to the theft of motor vehicles to cover also the theft of boats. Sydney has many waterways and many thousands of pleasure craft, so it is important that the legislation be widened to cover boats. I commend the Government for this initiative.
Police now have the power to crack down on car and boat rebirthing. Indeed, it is estimated that rebirthing activities cost New South Wales taxpayers $100 million annually. In 2005 approximately 8,600 stolen cars were suspected of being used for those purposes, targets mainly being the higher priced end of market and luxury cars. Rebirthing covers a range of illegal activities, which all have one thing in common: to allow a stolen vehicle or a vehicle with stolen parts to be passed off and registered as a legitimate vehicle. Organised car thieves and their accomplices perform a wide range of activities to rebirth vehicles.
One example is where a rebirthing syndicate steals a car, strips parts from the car and then dumps the chassis. The police recover the chassis and its details are removed from the stolen car list, after checking the chassis number. The insurance company writes off the chassis and sells it at auction. The thieves buy back the chassis on the open market at auction, making them the lawful owners of the car. They then replace the parts they had previously stripped from the chassis, re-register and sell the car, pretending they had innocently bought the chassis and legitimately fixed it up with bought spare parts. They may even produce forged receipts for the spare parts stripped from the stolen car. That is one ingenious way in which criminal syndicates steal motor vehicles and boats, and manipulate registered identities so they can be re-registered and sold to unsuspecting buyers.
The bill creates four offences relating to the misuse of unique vehicle identifiers such as markings, letters and numbers that allow a car or part to be identified. It is an offence to dishonestly interfere with a unique vehicle identifier, to dishonestly make a unique or purportedly unique vehicle identifier, to possess a motor vehicle or part with intent to dishonestly alter a unique vehicle identifier and to knowingly induce another person to accept a false unique vehicle identifier as a genuine identifier. Each of these offences carries a maximum penalty of seven years imprisonment. Another important aspect relates to organised crime figures who often separate the different aspects of the crime into compartments.
For example, a person who makes a false vehicle identification plate may have no involvement in the re-registration process and may not even know the people who present the car for fraudulent re-registration. New section 154G (5) makes it clear that it does not matter whether the activity is carried out under the direction of any particular person or whether the same person is always involved in the rebirthing. It does not even matter that the accused did not know any of the other participants in the rebirthing ring. If that person has knowingly participated in a car or boat rebirthing activity also knowing that the activity, as a whole, is carried out on an organised basis, the person is guilty of the offence created by new section 154G and is liable to 14 years imprisonment. That provision puts the noose around the neck of each individual involved in a rebirthing racket. We support the bill.
The Hon. HENRY TSANG (Parliamentary Secretary) [5.46 p.m.], in reply: I thank all honourable members who contributed to the debate. The Crimes Amendment (Organised Car and Boat Theft) Bill represents a significant step forward in the Government's initiatives against crime and criminal gangs, in particular, car and boat rebirthing. It creates specific offences that allow police and courts to respond appropriately to the threat posed by motor vehicle crimes. I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.
[The Deputy-President (The Hon. Amanda Fazio) left the chair at 5.48 p.m. The House resumed at 8.00 p.m.]
LEGAL PROFESSION AMENDMENT BILL
Second Reading
The Hon. HENRY TSANG (Parliamentary Secretary) [8.00 p.m.], on behalf of the Hon. John Della Bosca: I move:
That this bill be now read a second time. 23 May 2006 LEGISLATIVE COUNCIL 65
I seek leave to incorporate the second reading speech in Hansard.
Leave granted.
The Government enacted the Legal Profession Act 2004 in December 2004, and commenced it on 1 October 2005. The Act is a major milestone in the regulation of the Australian Legal profession, recognising and providing for a national profession. The national legal profession scheme and model legislation were developed by the Standing Committee of Attorneys General. The scheme removes many of the barriers to increased efficiency and competition in the legal profession, and harmonises clients' rights across jurisdictions.
There continue to be a number of issues under debate in relation to the model legislation. A national forum is deliberating in relation to these issues, and will be bringing forward further amendments to the model for consideration by SCAG ministers.
Following the commencement of the legislation in New South Wales, ways of improving and finetuning the legislation have been identified, in consultation with the legal profession and the legal profession regulators. This Bill implements a number of those improvements.
An undertaking of the scale of the national legal profession scheme is necessarily to be regarded as a work in progress. This Bill amends the Legal Profession Act 2004 to maintain uniformity with the national model and to improve and streamline the operation of this new Act. Further amendments in future Parliamentary sittings should be expected.
I shall now consider some specific amendments contained in this Bill.
Protection of consumers receiving pro bono legal services
The Legal Profession Act 2004 prohibits a person from engaging in legal practice for fee, gain or reward unless they are an Australian legal practitioner. The Bill deletes the words "for fee, gain or reward" to ensure that clients who receive pro bono services from solicitors receive the same level of consumer protection as clients who pay for legal services. This amendment will create uniformity with the Victorian and Queensland legislation on this point.
If practitioners are not required to hold a practising certificate, then they do not have to undertake continuing legal education, are unlikely to hold professional indemnity insurance and are not covered by the Professional Rules. Accordingly, there is a risk that the public will not be protected from under-qualified persons undertaking legal work, however well intentioned they may be.
While pro bono legal work must be encouraged, consumer protection is an overriding goal of legal profession regulation.
Advertising Amendments
The Bill inserts a new section 689A in the Legal Profession Act 2004 to clarify that the Legal Services Commissioner can bring prosecutions for advertising offences under the Act and Regulations. The Act already provides that the Law Society and the Bar Association can prosecute offences, and the amendment makes it clear that the Legal Services Commissioner can also do so in relation to advertising offences.
This section also gives the Legal Services Commissioner powers to investigate possible advertising offences. These powers are the same as the Legal Services Commissioner's powers for investigating complaints made against lawyers, and will ensure that the Commissioner can properly investigate any possible advertising breaches and obtain the material necessary for a prosecution.
Various provisions from the Legal Profession Act 1987, including restrictions on legal advertising, were carried over into the Legal Profession Act 2004. However, the maximum penalty that could be imposed by regulation, and the maximum penalty for breaching an Administrative Decisions Tribunal direction in relation to advertising were inadvertently specified as 100 penalty units, instead of 200 penalty units. The Bill rectifies this, amending sections 85(2) and (8) of the Act, and the Legal Profession Regulation 2005, to make the penalties the same as they were under the Legal Profession Act 1987, and consistent with penalties for similar offences in the Workers Compensation legislation.
Costs provision amendments
An uplift fee is an additional charge above the normal fees charged by a legal practice, and is conditional on a successful outcome. It is intended to compensate a practitioner for the inherent risk in running the matter. The National Model legislation allows an uplift fee payable on the successful outcome of the matter, provided the amount of the uplift is reasonable and that, in litigious matters, the premium does not exceed 25% of the fee that would be otherwise payable.
In 2002 the NSW Government amended the Legal Profession Act 1987 to require practitioners to certify that their cases involving a claim for damages had reasonable prospects of success. A practitioner who runs a case without reasonable prospects of success can be subject to a personal costs order.
Section 324(1) of Legal Profession Act 2004 prohibits uplift fees in claims for damages, to ensure that practitioners do not certify that their claims for damages have reasonable prospects of success, and then charge their clients an extra 25% for the inherent 'risk'.
The Bill retains the s324(1) departure from the model legislation for claims for damages, but restores the balance of the provisions to more closely reflect the Model Law provisions and the comparable provisions in the Victorian Legal Profession Act 2004. It removes the cap on uplift fees for matters that are not litigious and ensures that, if there is a breach of the uplift fee provisions the law practice can still recover the base level fee, but not the premium. 66 LEGISLATIVE COUNCIL 23 May 2006
An example of the type of non litigious situations in which it might be appropriate for uplift fees to be charged is a competitive tender. A client in a competitive tender for a particular project (for example a large infrastructure project) will incur legal fees in the tender preparation and the client may not be successful in its tender. The client may therefore want the law firm to "share some of the pain" if the client is not successful in its tender. To compensate for this, the client is prepared to pay a "premium" to the law firm if the client is successful with its tender.
The Bill implements a range of other minor amendments to the costs agreement and costs assessment provisions, including:
(a) Amending 312 to expand the range of clients that do not need to be given the detailed costs disclosure required under the Act. Currently this applies to 'sophisticated clients', such as public companies, government departments, and financial service licensees, who are in a position to seek any information they require. The bill expands the categories to include liquidators, administrators and receivers, large partnerships, and joint ventures or joint venture proprietary companies where one of the members or shareholders is a person to whom disclosure is not required;
(b) Amending 323 so that if the ordinary costs disclosure requirements do not apply because the client falls into one of the categories of sophisticated clients, some of the conditional costs agreement disclosure requirements do not apply either;
(c) Amending s328 to permit the same rights of appeal on questions of law in applications to set aside a costs agreement as exist in relation to costs assessment applications generally;
(d) Amending s328 to ensure that the offending provisions of a costs agreement can be set aside, and not just the whole costs agreement;
(e) Amending 332A to allow a person to request an itemised bill after receiving a lump sum bill. The law practice will not be able to commence proceedings to recover unpaid legal costs until 30 days after the person has been given an itemised bill;
(f) Amending s333 so that clients who fall within any of the categories of sophisticated clients need not be given a written statement about avenues for disputing bills;
(g) Amending s369 to permit a cost assessor to determine by whom and to what extent the parties' costs of an assessment are to be paid, and to include them in the assessment;
(h) Amends the Legal Profession Regulation 2005 to cap the rate of interest that lawyers may charge for unpaid legal costs by reference to the Reserve Bank Cash Rate Target. The Cash Rate Target is currently 5.5% so the maximum rate of interest will be 7.5%.
A report commissioned by the NSW Government on Legal Fees in NSW has recently been released. The report aims to foster a movement away from the current dependence on time billing and to improve transparency in costing and billing.
The recommendations in the report are not included in this Bill but will be the subject of further consultation. Where the recommendations relate to core uniform provisions of the national model legislation they will be referred to the Standing Committee of Attorneys General for consideration for inclusion in the model legislation
Other amendments
Section 45 is amended to permit the Bar Association and the Law Society to grant practising certificates to Australian lawyers whose principal place of legal practice is in a foreign country.
The Bill amends section 102 to exempt interstate barristers who wish to practise in NSW from the requirement imposed on local solicitors to undertake two years of supervised practice, because there is no such requirement on local barristers.
The Bill also amends s540 to enable a complaint against a legal practitioner to be dealt with by imposing a condition on a practitioner's practising certificate. This will be in addition to the current powers to issue a caution, reprimand or compensation order.
Part 4.9 of the Legal Profession Act 2004 is amended to ensure that where a person complains about a solicitor on behalf of a client, the client may receive compensation under Part 4.9 of the Act, even though they are not the official "complainant".
The Bill also amends sections 696 and 699 to ensure that the professional bodies have power to investigate and prosecute former practitioners or persons holding themselves out to be practitioners. Presently the provisions may be read as limiting the regulatory authorities to investigating only barristers or solicitors who hold a current practising certificate.
A new s722A will ensure that the professional bodies are not required to divulge information they receive in connection with an application for pro bono legal services. People should be able to apply for legal assistance without the risk that the information they provide, that might otherwise be privileged, will be divulged.
Schedule 9 of the Legal Profession Act 2004 is also amended to provide for any existing solicitor corporations formed under the Legal Profession Act 1987. It largely re-enacts the savings and transitional provisions for solicitor corporations from the Legal Profession Act 1987. It also allows these corporations to become an incorporated legal practice under the Legal Profession Act 2004 by registering as a company under the Corporations Act 2001. 23 May 2006 LEGISLATIVE COUNCIL 67
The Bill makes a range of other minor or machinery amendments to enhance the operation of the legislation and achieve greater uniformity with other jurisdictions.
The amendments in this Bill will ensure that the Act will operate more smoothly.
I commend the Bill to the House.
The Hon. DAVID CLARKE [8.00 p.m.]: The Legal Profession Amendment Bill is not opposed by the Opposition. The purpose of the bill is to contribute to the creation and effective operation of a nationwide Australian legal profession. It arises out of recommendations agreed upon by the Standing Committee of Attorneys-General. It is hoped that it will help to increase the efficiency of the legal profession in New South Wales and to contribute to greater harmonisation of the relationship between the legal profession, clients' rights and the public as a whole. The bill has been drafted in consultation with the New South Wales Bar Association and the New South Wales Law Society and would appear to have the general agreement of interested stakeholders.
The bill extends the prohibition on engaging in unqualified legal practice. It will require those engaged in legal practice in New South Wales to have a practising certificate regardless of whether they practise for fee, gain or reward. Previously there was a requirement to have a practising certificate only if practising for a fee. The bill extends the class of Australian lawyers to whom practising certificates may be granted by enabling their issue to Australian lawyers who practice principally overseas. This will cover the situation of a person who is engaged in overseas practice doing some incidental work in New South Wales as part of that practice. Now such a person will be able to obtain a New South Wales practising certificate.
There will be an increase in the maximum penalty that may be prescribed by regulations for offences relating to advertising by or for law practices. These are sensible amendments that will help the good name of the legal profession and at the same time give greater protection to the community, particularly against rogue elements in the profession. The bill provides for increases in the maximum penalty that may be imposed for an offence relating to advertising by barristers or solicitors or in connection with the provision of legal services or services in respect of personal injury. This is to bring some further control to the proliferation of personal injury claims, which resulted from excessive and over-the-top advertising. Presently the Legal Profession Act allows the Law Society and Bar Association to prosecute barristers or solicitors who commit offences under the Act. The bill clarifies that the Legal Services Commissioner can also prosecute barristers or solicitors who commit advertising offences, thus harmonising with the current power of the Legal Services Commissioner to investigate other complaints against lawyers.
The bill provides for a number of amendments in relation to cost agreements and the interest payable on unpaid legal costs. The provision that cost agreements that are not fair or reasonable may be set aside is amended to provide that a particular provision of a cost agreement can be set aside rather than the whole agreement. The bill will enable the interest rate payable on unpaid legal costs to be tied to a benchmark rate of interest. The categories of clients who do not need to be given a detailed cost disclosure as required under the Act are expanded. The present categories, which include government departments and public corporations, will now be expanded to include, among others, liquidators, administrators, receivers and large partnerships. Provision will be made for clients who receive lump sum bills to request an itemised bill. The legal practice will be prohibited from commencing proceedings to recover unpaid costs until 30 days after the client has been provided with an itemised bill.
Henceforth, interstate barristers wishing to practise in New South Wales will be exempt from the requirement on local solicitors to undertake two years of supervised practice because there is no such requirement on local barristers. Currently a complaint against the legal practitioner can be dealt with by way of a caution, a reprimand or a compensation order. The bill will provide for a condition to be imposed on the practitioner's practising certificate. The bill amends the current provisions so that in future when a person makes a complaint against the legal practitioner on behalf of a client the client may receive compensation even though he or she is not the official complainant. Provisions relating to trust moneys and trust accounts are strengthened to ensure that they extend to foreign lawyers practising in Australia. As I indicated, the Opposition does not oppose this bill. Through its various amendments, the bill seeks to modernise and update legal practice requirements in New South Wales in harmony with the recommendations of the Standing Committee of Attorneys-General and in furtherance of a national framework for the legal profession.
The Hon. HENRY TSANG (Parliamentary Secretary) [8.06 p.m.], in reply: I thank the Hon. David Clarke for his contribution to the debate. I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages. 68 LEGISLATIVE COUNCIL 23 May 2006
CRIMES (SENTENCING PROCEDURE) AMENDMENT BILL
Second Reading
The Hon. HENRY TSANG (Parliamentary Secretary) [8.07 p.m.], on behalf of the Hon. John Della Bosca: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
I am pleased to introduce the Crimes (Sentencing Amendment) Bill 2006 on behalf of the Government.
The object of this Bill is to amend the Crimes (Sentencing Procedure Act 1999 with respect to sentencing for crimes committed against public transport workers or community workers (such as surf lifesavers).
During 2005 there were a number of occasions where transport workers, and specifically bus drivers, were assaulted. The Transport Workers Union raised the matter with the Government and called for heavier penalties for those who assault transport workers.
Also, in December 2005, the Cronulla riots were precipitated by assaults upon surf lifesavers at Cronulla beach.
Section 21A (2) of the Crimes (Sentencing Procedure Act provides for aggravating factors which are to be taken into account by the sentencing judge. Section 21A (2) (a) provides the following as an aggravating circumstance at sentence:
(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation.
Surf lifesavers fall under the definition of "community worker", however, the use of the word "occupation" may imply that the victim is remunerated for his or her duties. In many cases, lifesavers do voluntary, unpaid work—and may have a Monday to Friday "occupation" unrelated to voluntary lifesaving.
Item [1] of the Bill therefore amends s21A (2) (a) so that it reads: and the offence arose because of the victim's occupation or voluntary work"
This clarifies that those community workers, who may be exercising public functions that are so beneficial to our society, on a voluntary basis, will be protected by this provision.
The common law has long recognised the circumstance of aggravation where an offence is committed against people in certain occupations that are, for whatever reason, more highly exposed to criminal activity.
For example service station attendants and convenience store operators work at night and are often alone, making them more vulnerable to robbery.
This principle of law has been codified in section 21A (2) (l) which provides the following as an aggravating circumstance at sentence
(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bank teller or service station attendant),
Item [2] of the Bill amends section 21A (2) (l) to add "bus driver or other public transport worker" to the examples given of vulnerable occupations.
Bus drivers working for private companies who are providing a service on a public bus route, for example Westbus, will also be covered by this amendment.
Bus drivers and other public transport workers provide such a vital service to the public, but are sometimes exposed to the very worst circumstances. Angry, frustrated and sometimes drunk individuals have in the past assaulted drivers who are merely doing their job. This amended will explicitly recognise the aggravating factor that applies to workers in these frontline occupations.
Item [3] makes consequential amendments to the Table in Part 4, Division 1A of the Act, to mirror the amended wording of s21A.
The transitional provisions of this Bill provide that the amendments apply to the determination of a sentence for an offence whenever committed, unless:
(a) the court has convicted the person being sentenced of the offence, or (b) a court has accepted a plea of guilty and the plea has not been withdrawn, before the commencement of that Act. 23 May 2006 LEGISLATIVE COUNCIL 69
These are small but important amendments. Volunteer community workers such as lifesavers should receive as much protection as a community worker who is paid for their contribution, and transport workers, who should not have to put up with being assault just for doing their job deserve the additional protection of the law as well.
I commend the Bill to the House.
The Hon. DAVID CLARKE [9.07 p.m.]: The Crimes (Sentencing Procedure) Amendment Bill⎯weak as it is, ineffective as it will probably be⎯is not opposed by the Opposition. Every move by the Government to deal with the spread of violent crime in our community, no matter how modest that government response may be, is welcome. It is slightly better than nothing at all. The stated purpose of this bill is to amend the Crimes (Sentencing Procedure) Act with respect to sentencing for crimes committed against public transport workers or community workers such as surf life savers. The bill makes it clear that the current position that a factor of aggravation in sentencing is the fact that the victim was a vulnerable person such as a taxidriver extends to a bus driver or other public transport workers. The bill also makes it clear that the current position that a factor of aggravation in sentencing that the victim was a community worker and the offence arose because of the victim's occupation extends to volunteer community workers, such as surf life savers, where the offence arose because of the victim's voluntary work.
Prior to the 2003 election the Carr Government, in answer to the Coalition's policy of minimum sentences for serious crimes, established the concept that statutory aggravating factors are to be taken into account when determining sentences. The concept was introduced in the Standard Minimum Sentences Act 2002 and is now incorporated in the Crimes (Sentencing Procedure) Act 1999. The amending bill has been introduced following a series of vicious attacks on bus drivers and the well-publicised attacks on young Cronulla lifesavers prior to last Christmas, which led to the Cronulla incidents. For some time the Minister for Transport has talked about introducing legislation to protect public transport workers. The Premier has also made remarks about protecting lifesavers.
The people of New South Wales were shocked and outraged by the violent attacks on young lifesavers at Cronulla late last year. Those young surf-lifesavers voluntarily place their lives at risk to provide a service to the community, especially to our children. Once again, the Government has not acted to correct a situation that has recently arisen; it has reacted to enormous public outrage to a situation that has been building up and festering for a long time. It has reacted in a haphazard, piecemeal fashion to a situation that should have been rectified a long time ago. Once again, it has reacted only when it could no longer ignore public anger. The Government should have heeded the repeated warnings of the Liberal member for Cronulla, Malcolm Kerr, who for some time has sounded the alarm about a growing problem in Cronulla. Until now the Government has not responded to Malcolm Kerr's warnings. Did it take his warnings seriously? No, it did not. Did it take any action to bring the problem under control? No, it did not.
Similarly, a growing number of violent assaults have been perpetrated on bus drivers and other public transport workers. Attacks on bus drivers and other public transport workers have been occurring for a long time. The Government has now introduced a bill that, at least, is an attempt—weak and half-hearted though it is—to provide some sort of response. For the time being, the people the bill seeks to protect will have to be satisfied with the Government's response in the form of this bill. The shadow Attorney General, Chris Hartcher, stated in the other place, "This piecemeal approach in some respects adds confusion and uncertainty to the overall position."
The people of New South Wales have had enough. Their patience has been exhausted and they have lost confidence in the Government to effectively combat crime. Crimes of violence continue to escalate and the Government has no overall strategy to deal with the problem. The Government has reduced, rather than increased, police numbers. It has not provided adequate funding to combat crime. It has ignored the warning signals, until it was faced with the problems that burst forth from Cronulla late last year. It has failed in its most basic duty to the people of New South Wales, that is, to provide them with protection from violent crime. It has failed to provide a safe community in which the people of New South Wales can go about their lives and raise their families.
After the next election in March 2007 the people of New South Wales will gain genuine relief from escalating violent crime because they will have a Liberal-Nationals Coalition government. A Coalition government will not act in a piecemeal fashion, as the Government has done with this bill. It will act comprehensively, effectively and energetically to combat crime in this State. It will act in a way that will bring violent crime under control once and for all. That has been done elsewhere, and it can be done in New South Wales as well. As I have indicated, the Opposition will not oppose the bill, but we remain unconvinced that it will deal effectively with the escalation of crime against volunteer workers and public transport workers. 70 LEGISLATIVE COUNCIL 23 May 2006
Ms LEE RHIANNON [8.13 p.m.]: The Greens are not opposed to the Crimes (Sentencing Procedure) Amendment Bill but neither are we enthusiastic backers of it. The bill provides that in all crimes against bus drivers, or other public transport workers or voluntary workers, the victim's employment is an additional circumstance of aggravation to be included in the reasoning of judges and magistrates when sentencing perpetrators of such crimes. The occupations of bus and taxi driving and voluntary workers join the other types of work that belong to the class of victims' employment in criminal cases that are considered as an aggravating factor in an offender's possible sentence. When the victim of a crime is a police officer, an emergency services worker, a correctional officer, a judicial officer, a health worker, a teacher, a community worker or other public official exercising public or community functions, or, now, a bus driver or other public transport worker or voluntary worker, the employment of the victim will establish a circumstance of aggravation.
The Greens believe that the bill is a classic case of policy on the run and does not address the causes of violent crime in society. Fundamentally, we do not believe that the ever-increasing spiral of sentences being dished out to offenders reduces crime overall. While the bill will result in longer prison sentences, it will do little to address the causes of violent crime or to prevent violent crime against specific types of people at work. As such, we have significant concerns that the bill amounts to little more than window-dressing and will do nothing to meet the challenges it is purported to address. I note that the policy objective of imposing heavier sentences on offenders depending on the victim's employment is provided for generally and specifically in section 21A of the Crimes (Sentencing Procedure) Act. Section 21A (2) (l) of the Act establishes a circumstance of aggravation where:
… the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bank teller or service station attendant).
The bill again addresses that objective, as it specifically refers to public transport workers, such as taxi drivers, who are specifically mentioned in the Act. Section 21A (2) (b) adds to the overlap in that it provides that "the actual or threatened use of violence" is also a circumstance of aggravation. Everyone knows that the bill is the Government's response to assaults on lifeguards and bus drivers, and also to unfavourable headlines. It seems that not everyone knows that the circumstances of aggravation are already provided for in New South Wales legislation. On that basis, the Greens are confident that this amendment is irrelevant to the operation of the Crimes (Sentencing Procedure) Act. With the introduction of the bill, the Government has tried to nullify bad headlines rather than deal with crime in a sensible and commonsense way.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [8.16 p.m.]: Sadly, the Crimes (Sentencing Procedure) Amendment Bill is yet another bill in the Government's litany of law and order legislation. The idea that sentences should be made harsher because of the occupation of the victim is absurd. The courts determine sentences. A judge has the discretion to impose the punishment that fits the crime. There is some doubt that the concept of punishment is central to our system of justice. Our goal should be to lessen the incidence of crime. Victims of crime want offenders punished, but I believe, more importantly, they want to know why the crime was committed and to ensure that it does not happen again.
Minimal effort is made in the criminal justice system to understand why crimes are committed and to prevent them. We lock up offenders for longer sentences in the universities of crime at vast cost to the State. We demonise criminals. We make endless speeches in this House about sending them a message. They are seen as an external force, not as human beings. We do not try to find out the motives for their actions. We very carefully analyse dogs biting people and take steps to prevent it happening, but we do not carefully analyse why people bash others. The bill provides that a person who attacks a community worker, such as a surf-lifesaver, should receive a harsher penalty for the crime because of the victim's occupation. The bill tells judges the circumstances they should take into account, as though they are incapable of determining such matters themselves. I believe that the bill is a political statement to the electorate rather than a rational analysis of crime.
It is unreasonable for bus drivers to be bashed. It is also unreasonable for community workers such as lifesavers and policemen to be bashed. Old people, young people, women and people doing their job also should not be bashed. Once we take all of them out, we are left with a few young to middle-aged men who are relaxing rather than working. Presumably their attackers will get lesser sentences. Of course, if we look at who is bashed the most, we see that it is young men, but we are increasing sentences imposed on those who attack everyone else. This escalation is pandering to the shock jocks and is completely unproductive. It is typical of the sort of nonsense this Government engages in.
A particularly worrying aspect is the retrospective application of the amendments in the bill. This worthy group of surf-lifesavers, who are not only doing heroic work but also generally doing it for free, which 23 May 2006 LEGISLATIVE COUNCIL 71 makes it doubly laudable, are the bright Australian hope. They are a quintessential element of our culture as they stand in their bronzed magnificence on fantastic Australian beaches. Both the bronzed lifesavers and the beaches are the envy of every other country. The Government has said that these people are icons and that they should be specially protected by legislation, and that that legislation will be applied retrospectively. Given the Cronulla riots, one cannot help but think that the bottom line is that the people of ethnic origin who went there and bashed surf-lifesavers will be caught up by this bill. That means this racist legislation is designed to catch the people who bashed the lifesavers at Cronulla.
I am not seeking to justify anyone bashing lifesavers—that is indefensible. However, we must let the courts do their job and we should do ours. This legislation almost borders on racism and it should be opposed. The courts should impose sentences and this Parliament should leave them to do that. That is the meaning of the principle of the separation of powers. This bill is a disgrace.
Reverend the Hon. Dr GORDON MOYES [8.22 p.m.]: My contribution certainly will not be as colourful as that of the previous speaker. I am pleased to speak on behalf of the Christian Democratic Party to the Crimes (Sentencing Procedure) Amendment Bill. The object of the bill is to amend the Crimes (Sentencing Procedure) Act 1999 with respect to sentencing for crimes committed against public transport workers or community workers such as surf-lifesavers. Not one day passes without some act of violence being reported in the media. The newspapers are full of awful accounts of violence exacted on people for one reason or another. Because of that I have introduced a bill providing for on-the-spot breath, blood and urine tests, if needs be, for bouncers in hotels and other places who assault patrons. Some people have died as a result of these attacks, including the Australian cricketer David Hookes. Last weekend a similar violent attack occurred in Brisbane resulting in a death. Sadly—and this can be said with absolute certainty—the episodes of violence that are brought to the public's attention do not accurately reflect the reality or extent of the level of violence in our communities.
It is interesting to note a recent article in the Sydney Morning Herald indicating that people in our communities are generally feeling safer. The Institute of Criminology has reported that the crime level has been declining and that the prison population has been increasing. In 1984 there were 88 inmates for every 100,000 Australians, but by 2004 that figure had jumped to 158. In other words, there has been a 5 per cent increase in the number of prisoners in New South Wales prisons every year. The correlation is clear. It could be said that the number of prisoners is inversely related to the number of crimes perpetrated in the community. That is a curious fact.
The institute's report also made it clear that from 1996 to 2003 there had been a steady increase in the number of assaults committed. With that in mind, it is timely that we are debating this bill tonight. The bill makes amendments to the Crimes (Sentencing Procedure) Act 1999 with respect to sentencing for crimes committed against public transport workers or community workers, such as surf-lifesavers in particular. Obviously that is a reference to the Cronulla riots. We have also seen in the press many reports about attacks on bus drivers and others. I recently spoke to a train driver who recounted the number of times he has faced large pieces of concrete and stones thrown from the side of the tracks into his train window.
The media reporting of the Cronulla riots catapulted into the public's consciousness the sinister side of human nature. It is said that an assault on a lifesaver prompted these riots. Regardless of the reasons behind the riots—and I will not take the simplistic approach that it is the only reason, although it did spark an incredible response—it is clear that those who assault people in vulnerable positions, such as lifesavers, should be heavily reprimanded. I have grandchildren who are lifesavers and I know the amount of time they spend preparing, training and keeping fit to volunteer their time on Saturdays and Sundays to patrol public beaches. One of my grandsons gets up at 4.10 a.m. every day to go to training. They are incredibly devoted to the role of lifesaving in the community.
A study by economists the Allen Consulting Group made some insightful statements about the economic and social value of surf-lifesaving in Australia. One approach to valuing surf-lifesaving by this group found that the total value of surf-lifesavers in 2003-04 was just over $1.4 billion, translating to approximately $42,000 per lifesaver in Australia. The study found that surf-lifesavers in Australia save 485 people from drowning each year and protect another 313 from serious injury, and that they volunteer more than 1.4 million hours to keep our beaches safe. In New South Wales, in particular, the report valued the lives saved and assisted at $723.2 million every year. Lifesavers in New South Wales patrol, on average, for 833,134 hours a year. Those patrol hours have an input value of $29.4 million.
In addition, surf-lifesavers make an immeasurable contribution to our nation's social capital. Lifesavers make a contribution to the community through, amongst other things, increased valuable social networks, decreased mortality, decreased crime and increased tourism. Clearly, protecting the safety and wellbeing of our surf-lifesaving volunteers is imperative. This legislation recognises the value and position of surf-lifesavers in the community by providing that attacks against them should be seen as more serious than other attacks. The 72 LEGISLATIVE COUNCIL 23 May 2006 legislation will make assaulting a lifeguard an aggravating factor, with offenders to face the tougher end of the penalty scale.
The legislation also recognises the vulnerability that bus drivers and others like them are subjected to because of the nature of their job. The Christian Democratic Party supports the unions in their move to achieve good, safe working conditions. Assaults on bus drivers are not new. However, in the past year a number of particularly vicious attacks on bus drivers have occurred. Strike Force Squid was set up last year to investigate attacks on State Transit bus drivers. One driver was slashed on the forearm with what appears to be a Stanley knife, and in June last year a bus driver was bashed with a knuckleduster and slashed on the leg with a sharp implement for $112 while driving in Sydney's south-west.
The transport union raised with the Government the fact that transport workers should be recognised as a valuable and vulnerable category of workers. Currently, when a court sentences a person for an offence of which he or she has been found guilty, under section 21A of the Crimes (Sentencing Procedure) Act 1999 the court is to take into account a number of matters in determining that sentence. Those matters include certain aggravating factors and certain mitigating factors that are relevant and known to the court. The court is also to take into account any other objective or subjective factor that affects the relative seriousness of the offence. All these factors are prescribed by section 21A and are inclusive—allowing for matters to be referred to by any other Act or rule of law—rather than exclusive in nature.
The bill makes it clear that section 21A (2), which lists aggravating factors in sentencing, is extended to a bus driver or other public transport worker. As I indicated earlier, it is important for the whole community that unionists working in public fields such as public transport are able to work in a safe environment. The bill also makes it clear that the current provision—which makes it a factor of aggravation in sentencing that the person was a community worker and the offence arose because of the victim's occupation—extends to volunteer community workers, such as surf-lifesavers, where the offence occurred in the course of the victim's voluntary work. Transport workers will join taxidrivers, bank tellers and service station attendants in being afforded added protection under the Crimes (Sentencing Procedure) Act 1999. I cannot understand how the Hon. Dr Arthur Chesterfield-Evans can say that the bill is extremely bad legislation. The outcomes are intended to be good for a vulnerable group of people. As the Parliamentary Secretary said in his speech in the Legislative Assembly:
Volunteer community workers such as lifesavers should receive as much protection as community workers who are paid for their contribution; and transport workers, who should not have to put up with being assaulted by doing their job, deserve the additional protection of the law as well.
The Christian Democratic Party has no hesitation in commending the bill to the House.
The Hon. HENRY TSANG (Parliamentary Secretary) [8.31 p.m.], in reply: I thank honourable members for their contributions to this debate. Before concluding I wish to address some particular matters that have been raised by the Hon. Dr Arthur Chesterfield-Evans. The honourable member asked whether the provisions of the bill would apply to the offenders who attacked the Cronulla lifesavers, sparking the Cronulla riots. The transitional provisions of the bill are consistent with the fundamental rule of law that the law under which a person is sentenced may not be changed partway through the person's sentencing process. That is why the provision will not apply to people who have pleaded guilty.
However, at common law it has always been an aggravating circumstance of an offence that it was committed against a person performing functions for the good of the community. As stated in the second reading speech, the bill clarifies existing law in relation to volunteers. It provides additional protection and recognition for volunteer community workers and all public transport workers. It does so by specifying that offences committed against these people because of their work are to be treated as aggravated by the courts when sentencing offenders. I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.
CONSTITUTION AMENDMENT (GOVERNOR) BILL
CIVIL LIABILITY AMENDMENT BILL
Bills received.
Leave granted for procedural matters to be dealt with on one motion without formality.
Motion by the Hon. Henry Tsang agreed to:
That these bills be read a first time and printed, standing orders be suspended on contingent notice for remaining stages and the second readings of the bills be set down as orders of the day for a later hour of the sitting.
Bills read a first time and ordered to be printed. 23 May 2006 LEGISLATIVE COUNCIL 73
LOCAL GOVERNMENT AMENDMENT (MISCELLANEOUS) BILL
Second Reading
The Hon. HENRY TSANG (Parliamentary Secretary) [8.35 p.m.], on behalf of the Hon. Tony Kelly: 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 Local Government Amendment (Miscellaneous) Bill reflects the Iemma Government's commitment to the ongoing reform of local government.
This commitment means that the Local Government Act is kept continually under review to provide a transparent and effective legislative framework for the administration of local government in New South Wales.
The amendments in this Bill address issues highlighted by the State Government agencies and peak industry bodies, including the Local Government and Shires Associations of NSW.
The Bill proposes changes that have arisen out of issues with the day to day operation of the Act and that require legislative amendment to improve the way these sections apply.
First, the Bill amends the Act in relation to the counting of votes at council referendums and polls.
The Act currently does not make it clear that in determining the outcome of a referendum or a council poll only formal, valid votes cast are to be counted.
The need for this amendment was highlighted when Warringah Council held a constitutional referendum seeking its residents' approval to change the number of wards.
The voting was extremely close and the outcome of the referendum was determined by the informal votes cast.
The need for the amendment became apparent when the Crown Solicitor prepared advice for the State Electoral Office.
The advice indicated that the Act could be understood to say that all votes should be counted whether they are valid or not when counting votes at a constitutional referendum or a council poll.
As a result of this anomaly in the Act, the informal votes were counted in the result and the constitutional referendum to change the wards of Warringah Council was lost.
To prevent any confusion and to avoid what is clearly an unintended situation, the Act will be amended.
The proposed amendment makes it plain that when counting votes at a constitutional referendum or a council poll, only the number of formal votes cast determines the outcome.
This will bring the voting at a constitutional referendum or a council poll into line with the way ordinary council elections, State and Federal elections operate.
The Bill will also clarify the requirements for a councillor who returns prior to the end of a leave of absence that has been approved by a resolution of Council.
Communities complain about these issues when there is a contentious development application before council and a councillor who has an approved leave of absence for illness or personal travel returns to make sure a DA has the support to be approved.
As it stands, the Act allows for a councillor to be absent from three or more consecutive meetings with the prior leave of the council or leave granted by the council at any of the meetings. If the council did not grant the leave of absence, the civic office held by that councillor becomes vacant.
There have also been recent instances where councils accepted apologies from a councillor for absences from more than three consecutive meetings without making a formal resolution to grant the leave of absence.
This has created uncertainty in the mind of the council and the councillor as to whether a vacancy in civic office has occurred.
These types of media reports have naturally caused the community and councils to express their concerns.
The Bill will amend the Act to put the matters beyond doubt and to address community concerns.
In particular, the Bill provides that when a councillor applies for the leave of absence, that leave may only be granted by a council resolution. 74 LEGISLATIVE COUNCIL 23 May 2006
Where a councillor attends and participates in the business of a meeting of council during a period of leave of absence, his or her leave is ended.
If the councillor wishes to return to the interrupted leave of absence, another resolution of the council approving the new leave of absence is needed.
Otherwise if a councillor misses three consecutive ordinary council meetings without permission, the office would be declared vacant under section 234, subsection "d" of the Act.
It is also proposed that a councillor should provide the general manager with a minimum of two days notice of the intention to attend and participate in a meeting of council during a period of leave of absence.
This is simply for administrative reasons so that the council staff can make sure the councillor returning can be provided with the necessary agenda papers before the meeting.
At the same time, I want to make it clear that if a councillor failed to give such notice it would not prevent a councillor from attending the meeting or voting at it.
Any business conducted at the meeting would not be invalidated because of the failure to notify the General Manager within two days of the meeting.
As Members would appreciate, this amendment is to make very clear what the requirements are for a leave of absence so that the community can have confidence in decisions of councils in these type of situations.
The Bill will also amend the Act to allow a council to resolve to apply to the Minister to dispense with a by-election where a casual vacancy occurs within 12 months of an ordinary council election.
For example, where a council's term is due to end in September 2008 and a casual vacancy occurs after 1 October 2007, it will be open to a council to resolve to seek my approval, as Minister, not to fill that vacancy.
Currently, section 294 of the Act allows a council to apply to the Minister to dispense with a by-election where the vacancy occurs 6 months out from the ordinary election.
Previously it was 9 months.
In 2003, the Act was intended to be amended to extend that period of time to 12 months.
That proposal, together with other legislative amendments, was contained in a Local Government amending Bill during 2003. However, when the Bill reached the Upper House it was amended in relation to when ordinary elections for councils were to be held.
An unintended consequence of the amendment was that the period in section 294 was reduced to 6 months instead of increased to 12 months.
Councils are required to meet the costs of ordinary elections and by-elections held for their local government areas.
This means that the costs are borne indirectly by ratepayers.
Given the recent concern by councils and the community over the costs involved in holding elections, it is appropriate to give effect to the Government's original intention and extend the period to dispense with by-elections to 12 months.
It must be remembered that the decision to apply to the Minister requesting that an election be dispensed with is entirely up to the council, who should reflect community concerns on the issue.
The next amendment in the Bill proposes that general managers must inform councils when the council receives a fine, penalty notice or a cost order from a court. Recent Promoting Better Practice reviews and public inquiries of councils have revealed that not all councils are advised of those matters by their general managers.
The Act gives to the general manager of a council the principal responsibility for the efficient and effective operation of a council's organisation.
It is the general manager who is responsible for the day-to-day management of the council.
However, there is nothing in the Act to make it plain that the general manager is also responsible for ensuring that a council is kept informed of its financial exposure to penalties or the like for a failure to comply with legal and financial obligations.
Instances have arisen in the past where councils have received a penalty notice or fine from the Australian Taxation Office or the Environment Protection Authority or orders for costs have been made by the Land and Environment Court and the councillors have not been advised.
The Act will be amended to provide that a General Manager must promptly report to a council meeting the fact and the reasons why a council has received a penalty notice or the like from government agencies, or where a court or tribunal makes an order as to costs against a council. 23 May 2006 LEGISLATIVE COUNCIL 75
As the democratically elected representatives of the people councillors must be able to keep track of the council's financial situation to undertake their duties appropriately on behalf of the community.
This amendment allows councillors to be fully informed and places a legal obligation on the General Manager to report these matters to the councillors at the next meeting of the council.
The final amendment relates to the electronic payment of rates.
The Bill will amend the Act to allow a council to serve rates and charges notices electronically as an alternative to the post if a ratepayer elects that mode of service.
This proposal was developed by the Department of Local Government in collaboration with the Business Solutions Unit of the Local Government and Shires Associations.
The proposal gives effect to the Government's 2003 State Election policy for local government to amend the Act to allow for electronic payment of rates to benefit NSW families and businesses when paying their rate notices. Based on the existing legislative provisions relating to the issuing of rates and charges notices, the Bill will allow ratepayers to choose to receive their rates and charges notice electronically by e-mail.
The new provisions will allow councils to require those ratepayers to agree to the council's terms and conditions for electronic issuing of rates and charges notices.
If a ratepayer chooses to receive rate notices electronically then they will have to provide their written consent.
If the ratepayer changes their mind then that change will also be required to be notified in writing.
This will ensure certainty as to a ratepayer's choice.
The Department of Local Government will be drafting guidelines for councils around issuing rate notices by e-mail.
These guidelines will address issues like a requirement that a council must test an e-mail address before issuing a rate notice to ensure the e-mail address is valid.
I am pleased to advise the House that these reforms have met with strong support from the Local Government and Shires Associations and rating professionals.
Councils believe that the electronic issuing of rates notices will add to efficiency in local government and reduce costs.
This will mean better services to ratepayers.
I can advise the House that the Local Government and Shires Association has been given a copy of the Bill.
The proposals in this Bill aim to clarify and strengthen the day to day operations of the Local Government Act to give the community confidence in the processes of councils.
I commend the Bill to the House.
The Hon. DON HARWIN [8.36 p.m.]: The Local Government Amendment (Miscellaneous) Bill is a bundling together of various changes to the Local Government Act 1993. They are sensible changes and the Coalition will therefore not oppose the bill. While the bill provides for a variety of minor amendments, it has five key objectives relating to the counting of votes, leave of absence for councillors, the need for by-elections, and the electronic serving of notices. The bill amends section 20 of the Act so as to clarify that informal votes are not to be taken into account for the purpose of determining whether questions at a council poll or constitutional referendum have been carried.
Following the close result of the Warringah Council referendum about changing the number of wards, the Crown Solicitor advised the State Electoral Office that the Act could be understood to say that all votes should be counted, regardless of whether they were formal or not. As a result of this unintended consequence of the Act, the outcome of the Warringah Council referendum was determined by informal votes. Under the bill, the counting of votes at a constitutional referendum or a council poll will be brought into line with the operation of ordinary council elections and both State and Federal elections. Another amendment proposed in the bill will alter section 292 of the Act to allow for councils to avoid a by-election in relation to a vacancy when that vacancy has arisen in a civic office in the last 12 months before a scheduled council election, that is, after 1 October in the year before the year in which the election is due to be held. Currently the costs of by-elections are borne by councils themselves. Allowing councils to dispense with the need for by-elections so close to ordinary elections will enable councils to spend ratepayers' funds on other projects. This is obviously a desirable outcome.
The bill seeks to clarify uncertainties relating to leave of absence for councillors. Section 234 of the Act will be amended to provide that if a councillor to whom leave of absence has been granted attends a council 76 LEGISLATIVE COUNCIL 23 May 2006 meeting, the leave of absence will be taken to have been rescinded for any future meetings. Further, the bill amends section 377 to ensure that a council's power to grant leave of absence to a councillor cannot be delegated. I am pleased to note also that the legislation requires the general manager to report promptly to council any costs or fines received from government agencies or from courts or tribunals. Among the costs covered by this provision are penalty notices from the Australian Taxation Office and orders for costs from the Land and Environment Court. Currently the Act does not explicitly require the general manager to keep the council informed of costs and penalties it has incurred. This amendment is sensible and desirable, and it constitutes a positive step towards achieving best practice standards in local government.
Finally, the bill enables councils to serve rates and charges notices electronically to ratepayers who elect that mode of service. Again, this is a cost-saving measure that is environmentally responsible and brings local government in line with best practice standards in the business community. I note that the Minister in his second reading speech in the other place reported that the amendments have the strong support of the Local Government and Shires Associations. The Opposition considers the various objectives to be sensible and will not oppose the bill.
Reverend the Hon. FRED NILE [8.39 p.m.]: The Christian Democratic Party supports the Local Government Amendment (Miscellaneous) Bill, which is the result of advice from State government agencies, including the Local Government and Shires Associations, which have been consulted on the bill and, in the main, agree that the bill meets their requests. The bill also clarifies a controversy that arose when Warringah Council held a constitutional referendum seeking approval to change the number of wards. At that time voting was extremely close and the outcome of the referendum, which was determined by including the informal votes cast, was lost. The Crown Solicitor gave advice to the State Electoral Office and it became clear that there was confusion with the way in which the Act was drafted. It was the belief at the time that all votes at a constitutional referendum or council poll should be counted, whether or not they were valid. The bill will amend the Act to ensure that only valid or formal votes are counted.
The bill also includes a provision with respect to leave of absence. Concern has been expressed about councillors participating in council meetings while they are on leave from their civic duties, and then resuming their leave. The bill proposes that where a councillor attends a council meeting during a leave of absence, the leave of absence should end. A further period of leave can be granted by council resolution, if required. A councillor who returns early from leave is required to provide the general manager with a minimum of two days notice to allow time for the business papers to be prepared. Failure to give such notice will not prevent a councillor from attending the meeting, voting at it or invalidate business conducted at the meeting. The measures in this bill will help promote the efficient operation of councils.
The Christian Democratic Party is concerned about the provisions in the bill with respect to by- elections that arise from a casual vacancy. The bill will allow a council to apply to the Minister to dispense with a by-election where a casual vacancy occurs within 12 months of an ordinary election. The argument in support of the proposition is that it will save the cost of the by-election. As honourable members would be aware, quite often councils are evenly divided on many issues and every vote of a councillor is important. If a by-election is not held for 12 months, many people will not be represented. I urge the Government to monitor this provision. There is justification for such a provision if a councillor retires or is deceased and the remaining 11 agree that a by-election should not be held, but if council is divided for political reasons, it could be an abuse of local government processes not to hold a by-election for 12 months. In other words, it should be the view of the overwhelming majority of councillors not to hold a by-election.
Another provision requires the general manager to promptly report to a council meeting where a court or tribunal makes an order as to costs against council or when a penalty notice is received. I find it strange that up until now the general manager was not required to advise council because the general manager is a servant of the council. If the general manager had advised that expensive court action should be undertaken using ratepayers' money without advising councillors, they would be unaware whether the advice was given in good faith when the case was lost. The final amendment allows councils to serve rates and charges notices electronically as an alternative to the post. That provision brings councils up to date with the latest electronic processes and will provide greater efficiencies. We support the bill.
Ms SYLVIA HALE [8.45 p.m.]: The Greens are largely in support of the Local Government Amendment (Miscellaneous) Bill and believe that many of the proposed changes deserve support. We have reservations about a number of aspects with respect to the way in which the Act currently works and in Committee we will seek to amend the Act. I have spoken to a number of people in local government who are 23 May 2006 LEGISLATIVE COUNCIL 77 concerned about when a councillor takes leave of absence and then proposes to attend a meeting. I believe it is unnecessary for a councillor to provide the general manager with a minimum of two days notice of intention to attend and participate in a meeting during a period of leave of absence. The councillor, by his or her very presence, would indicate that the issues under discussion were sufficiently important to warrant a return from the leave of absence. To require a person to give the general manager notice would seem to eliminate anyone who was unable to contact the general manager—he or she may be in transit—and prevent that councillor from participating in the meeting.
I have reservations about amending the Act to allow council to resolve to apply to the Minister to dispense with a by-election where a casual vacancy occurs within 12 months of an ordinary council election. Twelve months is the equivalent of one-quarter of a council's term of office. That potentially leaves people without representation for 25 per cent of the time, which is hardly democratic. I acknowledge that by-elections are expensive, but if nine months was the specified time and as council elections are held in September, any councillor who left within the calendar year of the election would leave residents without their elected representative for only that calendar year. The 12-month period extends the time to October the preceding year, which is too long. This unnecessary amendment does nothing to improve the democratic process within councils.
The requirement that general managers inform council when the council receives a fine, a penalty notice or a cost order from a court is appropriate. It is only fit and proper that councillors be adequately informed as to why a council may have incurred such costs. Councils should be aware of all relevant information when they make decisions, determine something in court or adopt a course of action. I refer to the amendment allowing councils to serve rates and charges notices electronically. That is an extraordinarily good move. I know that on a number of occasions the department has been asked whether it was possible for rates and charges notices to be served electronically. The councillors who sought that information ran up against a brick wall and there was considerable opposition to it. I was delighted that within 10 days of my putting a question on notice to the Minister for Local Government as to the grounds for refusing to allow councils to serve rates and charges notices electronically he sought to amend the Act. I think one of us is more in touch with what is going on in local government than the other—
The Hon. Greg Donnelly: Who is that?
Ms SYLVIA HALE: —that is me, and the Greens in general. This is a wise move. Councils are frequently strapped for cash and need to save every penny they can. With the widespread use of email and computerised technology, many people would find it totally acceptable to receive rates and charges notices electronically rather than by post.
The Hon. Rick Colless: What about people who do not have email?
Ms SYLVIA HALE: People who do not have email should continue to receive their notices in the post. There is no question that serving notices electronically should be substituted in all cases for serving notices by post. Where a resident has requested that rates and charges notices be served electronically, it is totally appropriate that a council be allowed to do so. The Greens support this amendment. I intend to move a number of amendments in Committee dealing with a variety of issues, such as altering the boundaries of wards and requiring a constitutional referendum where there is a proposal to alter the number of councillors per ward. Most importantly, I shall move an amendment so that where a council is divided into wards there be a minimum of three councillors per ward.
We have the particularly unedifying spectacle in city municipalities⎯Botany Bay and Wollongong councils are prime examples⎯where councils have divided into six wards of two. Under the current provisions governing the elections for those councillors, when they run a ticket a councillor may receive 51 per cent of the vote, for example. All those votes then go in their entirety to the second person on that ticket. It introduces a winner-take-all component into local government elections. The current system⎯a form of proportional representation⎯enables a council to reflect the variety of political and residential opinion within the community. Under the two councillors per ward system that is stripped away. It enables one party, I believe totally unfairly and purely by a manipulation of the electoral process, to dominate a council. In the Botany Bay council election before last people recognised the pointlessness of running against the councillors. There were no council elections there because it was considered—
Reverend the Hon. FRED NILE: Who dominates the council? 78 LEGISLATIVE COUNCIL 23 May 2006
Ms SYLVIA HALE: The Labor Party. There may be instances in other councils. From memory, wards are divided into two in 11 councils in New South Wales. I believe where a council is divided into wards the electoral process should apply uniformly and the same electoral system should apply to all elections. Presently where councils are divided into wards of two this is not the case. The effect of the Greens amendment No. 3 will be to make the situation more democratic and allow councils to reflect the diversity of opinion within the community.
The Hon. HENRY TSANG (Parliamentary Secretary) [8.56 p.m.], in reply: I thank honourable members for their contributions to the debate. I thank the Local Government and Shires Associations and the local government finance professions for their input on various items in the Local Government Amendment (Miscellaneous) Bill. The five amendments contained in the bill will improve the day-to-day running of councils in this State. The Iemma Labor Government is committed to keeping the Local Government Act under review. It means that anomalies can be fixed and community concerns can be quickly responded to. I commend the bill to the House.
Motion agreed to.
Bill read a second time.
In Committee
Clauses 1 to 5 agreed to.
Ms SYLVIA HALE [9.00 p.m.]: The Greens have four amendments to schedule 1. No doubt it would expedite matters if I sought leave to move the amendments in globo. However, I ask that the questions on the amendments be put seriatim.
The CHAIRMAN: Before we reach that stage, I have reviewed the amendments as circulated. Amendment No. 3 is out of order as it is not within the leave of the bill. With the leave of the Committee you may move the other three amendments in globo.
Ms SYLVIA HALE: If I disagree with your determination that the amendment is not within the leave of the bill, is it the procedure that I must seek to dissent from your ruling? I am simply inquiring about the process hypothetically. When I sent instructions to Parliamentary Counsel to have the amendments prepared there was no suggestion that any of the amendments were outside the leave of the bill.
The CHAIRMAN: I will explain the process. When Parliamentary Counsel draft amendments they do so according to the instructions given to them by those seeking to have the amendments drafted. It is not the decision of Parliamentary Counsel whether an amendment is within the scope of a bill. That is a matter for the Chairman of Committees to determine. If the member is dissatisfied with my ruling, I draw her attention to Standing Order 178, which states:
Objection to Chair's ruling
If objection is taken to a decision of the Chair of Committees, such objection must be stated at once in writing. If the committee decides, the Chair will then leave the Chair, and the House resume. When the matter has been laid before the President and disposed of, the committee will resume proceedings where they were interrupted.
Ms SYLVIA HALE: Thank you for that explanation. Briefly, in defence of Parliamentary Counsel, it is not up to them to determine what one proceeds with or what one seeks to move. However, it is my experience that Parliamentary Counsel frequently gives members their opinion, and usually there is some suggestion from or discussion with Parliamentary Counsel as to whether an amendment is likely to be within the leave of the bill. So while I do not agree with your ruling, at this stage I do not propose to pursue the matter any further. Therefore, I seek leave to move Greens amendments Nos 1, 2 and 4 in globo.
Leave granted.
I move Greens amendments Nos 1, 2 and 4 in globo:
No. 1 Page 3, schedule 1. Insert after line 3:
[1] Section 16 What matters must be dealt with at a constitutional referendum? Insert ", alter the boundaries of its wards" after "into wards" in section 16 (a). 23 May 2006 LEGISLATIVE COUNCIL 79
No. 2 Page 3, schedule 1. Insert before line 4:
[1] Section 16 What matters must be dealt with at a constitutional referendum? Insert ", or the number of councillors for a ward," after "councillors" in section 16 (c).
No. 4 Page3, schedule 1, lines 18 and 19. Omit all words on those lines.
Amendment No. 1 provides that a council seeking to alter its ward boundaries—other than certain minor boundary adjustments—will be required to hold a constitutional referendum. Anyone who has had experience of dealing with council over a length of time would be well acquainted with attempts that have been made to produce a desirable outcome for the majority grouping within the council by altering ward boundaries. To some extent, providing for a constitutional referendum will provide a check on the activities of a majority that wishes to maintain its hold on power. Also, a constitutional referendum would give all parties the opportunity to put the case to electors as to why a boundary alteration is required. People may argue that a constitutional referendum is cumbersome, but so is the whole democratic process. If it ensures a fairer, more representative outcome, then that is desirable.
Greens amendment No. 2 provides that a constitutional referendum will also be required when the number of councillors in a ward is to be altered. As we know, a special provision was enacted—I think it expires on 1 July—giving councils a one-off opportunity to reduce their numbers. If there is a desire to reduce the number of councillors in a ward, the residents and ratepayers deserve to be consulted. Many people feel that there are too many councils or they cost too much, and often there is an innate desire to reduce the number of councillors. If it could be justified, obviously all the relevant ratepayers and residents would make the decision by way of a constitutional referendum.
During the amalgamation of many smaller council areas a number of people were afraid that the reduction in councillor numbers in rural areas would lead to a loss of representation and a loss of identification of elected representatives with the areas they represented; there was genuine and deeply felt concern about the reduction in counsellor numbers. Amendment No. 2 would provide for some input and a decision by the residents and ratepayers, rather than allowing the council to attempt to manipulate the outcome of an election by reducing the number of councillors in a ward, which could work to the advantage of a particular party.
Greens amendment No. 4 provides for the status quo to be preserved. In other words, if there is a vacancy, a by-election would not be necessary if the vacancy occurred no more than nine months before the next local government election. That would merely maintain the status quo rather than extend the period during which a ward or a council could be minus a representative. Rather than extend the period from nine months to 12 months, the effect of Greens amendment No. 4 would be to retain the status quo.
The Hon. HENRY TSANG (Parliamentary Secretary) [9.09 p.m.]: The Government opposes all the Greens amendments because they have been moved without consultation with the Government or with the Local Government and Shires Associations. Because there has been no notice of these amendments, the Government and the Local Government and Shires Associations have no opportunity to consider their impact on the proper day-to-day functioning of councils. Constitutional referenda are costly, and the Act must be clear so that the outcomes of constitutional referenda are not challenged in court. Gerrymanders in favour of the Greens are not supported by the Government.
The Hon. DON HARWIN [9.10 p.m.]: Amendment No. 4 is a direct negation of the bill. In my remarks during debate at the second reading stage of the bill I made it clear that the Opposition will not be opposing the bill. Therefore, the Opposition will not support Greens amendment No. 4. Madam Chair, you correctly ruled that amendment No. 3 is outside the leave of the bill and is, therefore, out of order. The problem with amendment No. 3 is that it sought to be too prescriptive. Local government areas across the State are diverse, and provisions need to be diverse to cover the range of representational arrangements that is appropriate for small and large councils. If I may give my personal view, it would be appropriate for some very large city councils to have a minimum of three, but it would be quite wrong to suggest that such an arrangement would be appropriate for every council in the State. So, even if the Committee had debated that amendment, the Opposition would not have supported it.
The Parliamentary Secretary's comments with regard to the other Greens amendments were appropriate. Although I am sure the Greens sincerely support these changes, these are critical issues in the structure of local government. We cannot be making such decisions in this Chamber with next to no notice. Such amendments need to be fully debated not only within the processes of our respective parties but also with 80 LEGISLATIVE COUNCIL 23 May 2006 the affected organisations. If some of these changes were to pass through this Chamber tonight, I am sure that various councillors within my party would have my guts for garters. There is no prospect of that happening because neither the Government nor the Opposition supports the amendments.
I am surprised the Parliamentary Secretary did not have more to say about Greens amendment No. 1, which suggests that the boundaries of wards should be changed only by a constitutional referendum, yet there is a requirement under the Act to ensure that there is no electoral malapportionment between wards. It would be unwise expenditure of ratepayers' funds if councils required a referendum every time a ward became malapportioned. I note, however, that Ms Sylvia Hale on previous occasions has raised issues that are valid to some councils that have manipulated wards in quite a disgraceful way for an electoral advantage. At some point in the future we need to debate the appropriate arrangements for boundary realignment in councils that are divided into wards because there is some degree of dissatisfaction. Ms Sylvia Hale rightly emphasises that point, but she should also bear in mind that moving such amendments late at night in the Legislative Council, with no notice, is not the way to get a better result. Although amendment No. 2 is slightly different from amendment No. 1, similar sentiments could be applied to it and I will not detain the Committee by repeating them. The Opposition opposes all the amendments.
Reverend the Hon. FRED NILE [9.15 p.m.]: The Christian Democratic Party shares the concerns expressed by the Government and the Opposition about these amendments. It would be best to seek the views of the Local Government and Shires Associations about these proposals in order that the usual negotiations can take place between those bodies and the Government to determine whether the amendments have any value. The effect of the changes proposed by these amendments may not be obvious at the moment. Already five errors in the bill have been addressed as a result of consultation between the Local Government and Shires Associations and the Government, and that is how these amendments should be dealt with. I have a concern about amendment No. 4. It may be that the request not to have a by-election should be made by a majority of councillors. We do not support the amendments.
Greens amendment No. 1 negatived.
Greens amendment No. 2 negatived.
Greens amendment No. 4 negatived.
Schedules 1 and 2 agreed to.
Title agreed to.
Bill reported from Committee without amendment and passed through remaining stages.
ADJOURNMENT
The Hon. HENRY TSANG (Parliamentary Secretary) [9.19 p.m.]: I move:
That this House do now adjourn.
FEDERAL GOVERNENT INDUSTRIAL RELATIONS WORKCHOICES LEGISLATION
The Hon. GREG DONNELLY [9.19 p.m.]: We are approaching two full months of operation of the Federal Government's "No Choices" legislation. Its impact is there for everyone to see. As predicted by Government members, "No Choices" is seriously hurting ordinary working people in New South Wales and throughout Australia. John Howard and Kevin Andrews's rhetoric of flexibility and choice has given way to the cold, hard reality of market forces and employer arrogance. Two real life examples illustrate the point perfectly. Amber Oswald is a 16-year-old high school student who works in a juice bar at Warriewood Square. She is a year 11 student at Narrabeen Sports High. Two days after the new law commenced she was told that she had been made redundant and would be rehired.
Amber was placed on an Australian workplace agreement [AWA], without even signing it. Under the AWA her hourly rate was reduced from $9.52 to $8.57 and her penalty rates were abolished. Her gross pay was slashed from $99.89 to $59.99. After the intervention of the Shop Assistants Union, Amber's wages and working conditions were fully restored to their original rate. Sadly, not all young people are as confident and determined as Amber. Many will be prevailed upon by their employers. Amber was prepared to stand up for herself. In the 23 May 2006 LEGISLATIVE COUNCIL 81
Sydney Morning Herald on 10 April Amber's employer, who only identified himself as Andre, said that between 15 and 20 staff at three New South Wales Pulp Juice franchise shops had been given workplace agreements. Andre said: "If they don't want to sign, they can leave. It's not about what's fair, its about what's right—right for the company."
The second example involves Maree Filpczuk, a sole parent with two daughters. Maree worked in a jewellery shop called the House of Cillini, which is located in Penrith. On 12 April she raised with her employer a matter of unpaid superannuation to which she was entitled. She previously had raised this matter, without receiving a satisfactory answer. After she raised the matter a second time, her employer became agitated and terminated her services. The jeweller has fewer than 100 employees. Therefore, Maree does not have a leg to stand on. Before "No Choices" commenced, she could have pursued an unfair dismissal case against her employer and the Industrial Relations Commission probably would have found that she had been unfairly dismissed. Those rights have been extinguished by the new legislation. In a statement explaining her situation, Maree said:
I have been a Liberal voter all my adult life, but I don't understand how our Prime Minister could not have foreseen the possibility of these situations arising. I am left with the feeling that he and his ministers just don't care.
Amber and Maree have experienced firsthand the terrible impact of the Coalition's "No Choices" legislation. Unfortunately, their cases are not unusual or rare. Many people have been hit for six under the new law. Rather than speaking out, every New South Wales Liberal and Nationals member of this Parliament fully supports the new law. They have promised to hand over the New South Wales industrial relations system to the Commonwealth if they are elected to government in March next year. Like many people in New South Wales, I hope that does not happen. No doubt, Amber and Maree feel equally strongly about that matter. In an address to the Tenth Anniversary Dinner at the Westin Hotel in Sydney on 2 March, John Howard said:
They— referring to John Carrick and other senior Liberals—
taught me a lot about politics. They taught me to understand the importance of carrying on a conversation with the Australian public. They taught me to understand the importance of perpetual contact with the Australian public, to understand that the commonsense of the Australian people is immense. The Australian people rarely get their political decisions wrong. We look back over the years. Let's face it, even when we haven't liked it, the Australian people have been right in the decisions that they have taken.
Let us be very clear: no conversation was sought and no conversation was had with the Australian people about these radical workplace laws. The laws are unnecessary and unwanted and impact most severely on those least able to defend themselves. John Howard is right: Australians rarely get their political decisions wrong. Next year at both State and Federal elections the citizens of New South Wales will get their opportunity to cast their judgment on "No Choices". We can be sure that they will not get it wrong and they will not be forgiving.
YASMAR HOUSE AND GARDENS
The Hon. CATHERINE CUSACK [9.24 p.m.]: Today, after a strong campaign by Greg Long, the Liberal candidate for Drummoyne, to save Yasmar, we finally received a response from the Minister for Juvenile Justice. I noted the Minister's effusive congratulations for the activity of the member for Drummoyne, Angela D'Amore. Unfortunately, Hansard was able to record only the Minister's words. The record will not show the disbelief and laughter in the House at the Minister's attempt to give credit to his Labor colleague. The Minister was unable to deliver that part of the speech with a brazen straight face. Indeed, he smiled at the ridiculous suggestion that the member for Drummoyne had helped in any way on this issue.
The member for Drummoyne has not helped. She has been utterly inactive. The last time the honourable member even uttered the word "Haberfield" in Parliament was on 21 October 2004 when she talked about an upgrade for the Five Dock police station, which also services Haberfield. Goodness knows what happened to that promise. I cannot find any funding for that one either. The member for Drummoyne has not raised the issue of Yasmar at all in Parliament—not once. She has not uttered a single word in Parliament about the shocking neglect of the site. A big clue as to why she jettisoned Yasmar was given by the Hon. Jan Burnswood.
The Hon. Jan Burnswoods: Point of order: I have waited because I thought that the Hon. Catherine Cusack would not continue her attack on a member in the other place. The honourable member knows such 82 LEGISLATIVE COUNCIL 23 May 2006 matters should be raised by way of substantive motion. This issue has been raised on many previous occasions. The Hon. Catherine Cusack's remarks are clearly an attack on a member in the other place. She should not raise that matter in an adjournment speech. If she wishes to do so, regardless of how wrong she may be, such matters should be raised by way of substantive motion.
The Hon. CATHERINE CUSACK: To the point of order: The Hon. Jan Burnswoods is seeking to waste my time in the adjournment debate, just as she did the last time I raised this issue. Previously she heckled me throughout my speech and said I had not done my research. She said that the Liberal candidate for Drummoyne, Greg Long, was stupid because Haberfield is no longer part of the Drummoyne electorate. Her remarks typify the attitude of the Hon. Jan Burnswoods and the Labor Party towards the people of Haberfield. Haberfield is a part of the Drummoyne electorate until the next State election and deserves representation. It receives representation from Greg Long, but not from its local member, Angela D'Amore.
The DEPUTY-PRESIDENT (The Hon. Amanda Fazio): Is that your contribution to the point of order?
The Hon. CATHERINE CUSACK: The Hon. Jan Burnswoods is seeking to waste time.
The DEPUTY-PRESIDENT (The Hon. Amanda Fazio): Order! I remind the Hon. Catherine Cusack that Standing Order 91 (3) states:
A member may not use offensive words against either House of the Legislature, or any member of either House, and all imputations of improper motives and all personal reflections on either House, members or officers will be considered disorderly.
The comments of the member were in contravention of Standing Order 91 (3). If she were to rephrase her comments, she may continue.
The Hon. CATHERINE CUSACK: I note that almost half of my allotted time has been wasted by the attempts of the Labor Party to cover up the truth about Yasmar and to try to defend the indefensible in the case of the member for Drummoyne. Their behaviour is typical and pathetic. The lack of representation of the people of Haberfield is disgraceful. We understand the Government's tactics. We are not stupid, nor are the people of Haberfield.
The Minister today falsely claimed that Yasmar has been saved. It has not been saved. Greg Long's plan, which would save Yasmar, involves proper community consultation before decisions are made and a master plan for the entire site before any decisions are made. The Minister just announced that the site would be split in two. Greg Long wants the State to undertake a new conservation plan for Yasmar so that we do not have to rely on the dodgy figures from the Labor Party. Funds for its conservation need to be secured before the property is returned to the community. These are reasonable and practical policies.
The Minister's proposal is way short of this plan. Minister Kelly made none of those commitments. Rather, he announced a deal with his Labor mates on Ashfield Municipal Council to buy time on this embarrassing issue until after the next election. Even worse, the Minister's announcement failed to include any pledge of funds for the conservation of Yasmar homestead. The precise cost is not known—because of the extent of the Government's disgraceful neglect of the site—but it will be in excess of $3 million. By accepting such an appalling deal to take Yasmar without any funding for its conservation, the mayor of Ashfield council is putting the political interests of the Labor Party ahead of the financial interests of the council and his ratepayers. Why should we be surprised? This is just Labor history repeating itself. We saw this at the 2003 State election. This fiasco is as much an embarrassment for Ashfield Labor councillors as it is for Angela D'Amore and the disgusting Iemma Government. [Time expired.]
NUNDLE COMMUNITY SPIRIT
Reverend the Hon. Dr GORDON MOYES [9.29 p.m.]: On Saturday 6 May my wife and I travelled to Nundle for a very happy community celebration. Nundle has made a name for itself for the manner in which it has found new purpose and direction that has dramatically increased tourism to the town and added new employment opportunities. This was one of a series of visits I have made to this delightful Tablelands community, the first being after the disastrous floods of Christmas 2001. Nundle had suffered more than $5 million damage in November and December, and a further $800 million of damage was caused to the whole region, with massive crop losses. With the help of my staff at the Wesley Mission Sydney, we raised and distributed $250,000 in cash and food to the needy families. I gave gift cheques of $10,000 each to farmers who 23 May 2006 LEGISLATIVE COUNCIL 83 had lost their crops to help them to plant fresh crops after three years of losses. We also organised Christmas parties and left behind about $250,000 worth of food and goods that we had purchased locally.
At that time floods had washed away three major bridges. A young widow in the area had to drive around a steep back road by the Chaffey Dam after the main bridge was washed away. In doing so she had a single-vehicle accident that crippled her. She was trapped in the car and her injuries left her a quadriplegic. Mrs Naomi Newbury had not long buried her young husband who had tragically died from cancer. They had no children, but when I visited her in the Royal North Shore Hospital she had discovered that she was six months pregnant. Naomi had severe spinal injuries causing quadriplegia, but her unborn child survived. She became the first quadriplegic to carry a baby full term in 20 years. We visited Naomi at the hospital and supported her and her baby, Samuel. She was unable to nurse or bathe him because she was confined to a wheelchair. On behalf of the people of Sydney we presented her with a cheque for $10,000 to help cover some of her medical expenses.
Naomi spent three more months in the spinal unit, another three months at the rehabilitation unit at Ryde and another six months in the maternity section of Tamworth Base Hospital. However, her desire was to return to the peace, beauty and people of Nundle. Since early 2002 Naomi and her family have been living in a government house at Coledale, but Naomi's mobility was restricted to the bedroom because her wheelchair was too wide for the doorways. We launched an appeal locally through the Nundle Community Welfare Foundation set up by Mr Bryce Bridges of Wesley Mission to raise $100,000. Following the telecast of the launch of that appeal, the Bunnings store in Tamworth indicated that it would be happy to supply every item required for the completion of a new house totally free of charge. The community would build a house for Naomi, her son, Samuel, and her carer, Nigel Hoad, to live in for as long as they chose. On 20 March the young family moved into the house in Nundle and Naomi is able to get in and out of every room with ease. She is now a regular traveller along Jenkins Street, accompanying Samuel to and from primary school.
The 80 people who helped to build the house celebrated its completion. Nundle Community Welfare Foundation trustee Peter Howarth undertook the project management. He said more than 80 individuals and businesses had contributed to building the house over the past four years. Austam Homes donated a house shell, Peter Howarth of Nundle and Wendy Emery of Bunnings Tamworth organised donations of materials and tradespeople, and New England Institute of TAFE carpentry and plumbing students completed a great deal of the work. It was my privilege as the patron and co-founder of the foundation to open Naomi's house. I know that the Parliament joins with me in commending the community of Nundle, the 80 individuals and the others who helped to raise the money and who did the practical work to build a home for a remarkable lady who, although she is a quadriplegic, is bringing up her son in a creditable fashion.
JOHN MARSDEN
The Hon. PETER BREEN [9.34 p.m.]: Paul Sheehan's vicious and uninformed attack on John Marsden in yesterday's Sydney Morning Herald sets a new low for the print media. As I read the article, entitled "The case for the damnation of Marsden", I found myself wondering why anyone would want to write a hate article about a person so recently deceased and why the editor of the newspaper would publish such garbage. I have known John Marsden for nearly 50 years and I take this opportunity to correct some of the factual errors in the article.
For a start, Les Murphy was on Marsden's radar only because Today Tonight falsely alleged that Marsden had sexually brutalised Murphy at Costellos bar. The consorting squad records and Murphy himself confirmed that Marsden never went to Costellos and that he never knew Murphy before the Channel 7 defamation proceedings. One of the imputations in the Today Tonight program was that Marsden was indirectly responsible for the way Les Murphy treated Anita Cobby, and Sheehan repeated that appalling defamation in his article.
As for manipulating witnesses, seven of the 12 so-called witnesses against Marsden in the Channel 7 defamation proceedings were persuaded to give false evidence against him. The seven people were unknown to Marsden until they appeared in the witness box to make their untrue allegations. There is no property in a witness and Marsden had every right to demonstrate that the witnesses were lying. John Marsden was generous to a fault and he had no problem forgiving those who lied and gave false evidence against him. At the end of his book, I am what I am, he said:
I cannot finish this book without explaining that I hold no animosity for anyone who made allegations against me ... Some had been subject to great physical abuse by paedophiles at tender years, and their plight was then compounded by society not dealing 84 LEGISLATIVE COUNCIL 23 May 2006
with the problem but simply treating them as neglected children ... One can well understand why, when there is the chance of getting cash through the Victims' Compensation Tribunal or other avenues, they would make such false allegations.
It is not their fault, and it never can be. It is the fault of our society, which has never been able to properly deal with the real issue of child sexual abuse.
Over the years, I have had more fights with John Marsden than I could count, but he never carried a grudge and he was always the first to forgive. Marsden once told me that if it was good enough for Jesus Christ to forgive on the cross a criminal who had received the death penalty, it was good enough for him.
Paul Sheehan referred to Marsden's attack on Deputy Senior Crown Prosecutor Margaret Cuneen. This attack should be judged in the context that Ms Cuneen was accusing criminal defence lawyers of deceit, deception, dissembling and delay on behalf of their clients when police and prosecutors routinely employ these tactics to secure their convictions. To describe Marsden as a hypocrite for calling Ms Cuneen to account simply demonstrates how little Paul Sheehan knows about the criminal justice system. If John Marsden was "a serial liar, a proven perjurer, a flagrant illegal drug user" and all the other calumnious descriptions listed in the article, why did he win his defamation case, and why did he have a conga line of family and friends who loved him dearly and whose lives were richer for having known him?
Tonight I was reminded during the inaugural speech of Bob Brown—the shooter not the environmentalist—that John Marsden was present in the public gallery when I gave my inaugural speech. I said at the time that John Marsden gave me a very important break in my life when he convinced me to give up my day job as a wharf labourer and to study law. Initially, he offered me tuition and later a job in his law firm. I am one of many people—too numerous to count—whom John Marsden assisted along the road to success. I knew him as well as anyone and I never knew him to exploit anyone or to deal with people other than for their own benefit and prosperity. That is the reason so many people loved John Marsden.
Perhaps the most unfair remark in Paul Sheehan's appalling article is that John Marsden died with blood on his hands because Ivan Milat was acquitted of a rape charge in the 1970s when Marsden represented him. Sheehan is forgetting that even if Milat were convicted, the average sentence for rape in those days was less than 10 years. With the benefit of hindsight Marsden felt bad about getting Ivan Milat off. Ian Barker felt the same way when he got the dingo off. As Marsden said in his book, "I had a job to do and I did it."
Finally, how does Paul Sheehan know John Marsden died with a guilty conscience? As far as I know, my old friend never had a guilty conscience about anything, and there is no subject we did not traverse in our discussions over the years. For the record, John's lifelong friend, Father Peter Confeggi, gave him the last rites at Istanbul in Turkey on the night before he died. From all reports, John died peacefully and in a state of grace. Some of his detractors will be mightily displeased that the damnation of John Marsden is a highly unlikely proposition.
ROYAL VISIT AND CHARLI WORGAN
The Hon. RICK COLLESS [9.39 p.m.]: Tonight I advise the House of an extraordinary young lady who recently had the opportunity of a lifetime when she met Her Majesty Queen Elizabeth II and the Duke of Edinburgh. On 13 March 2006, when Her Majesty visited St Andrew's Cathedral and Admiralty House in Sydney, a group of young people from around New South Wales were there to welcome her. One of those young people was Charli Worgan, a year 10 student from Macintyre High School in Inverell, who sits on the Student Representative Council State working party. This working party comprises just 20 SRC representatives from around New South Wales, and Charli's role is to represent on that State working party students from the central-north region of New South Wales—from Glen Innes in the east to Moree in the west, and from Bonshaw on the Queensland border to Bingara in the south.
Student Representative Councils have a charter to improve the quality of life for all students through student leadership programs. SRC members promote the views of students, encourage them to become actively involved in their school and provide leadership opportunities for all students. SRC members are democratically elected by their peers, and councils comprise students from all years at the school. Charli has been on the SRC for her whole four years at the senior school, and that is a good indication of her standing among her peers: she is regarded as a young lady who has a lot to offer her peers, a lot to offer her school and a lot to offer her community. The State working party meets four times per year and its regular conference was scheduled for the same time as Her Majesty's visit to Sydney. Charli was amazed when she received an invitation from the Prime Minister's office to attend the non-denominational and multifaith church service at St Andrews, and then to a luncheon at Kirribilli, along with the other 19 members of the SRC State working party and some 460 other VIPs. 23 May 2006 LEGISLATIVE COUNCIL 85
At the church service, Charli was seated just six metres from Her Majesty, and one can only imagine the excitement that a year 10 student from Macintyre High School from country New South Wales must have been feeling during that service. Following the church service, Charli and her group travelled to Admiralty House by bus for a delicious lunch with Her Majesty, Prime Minister John Howard and Mrs Howard and many other dignitaries. Charli was introduced to Her Majesty, Prince Phillip and Prince Andrew, and Her Majesty took the time to ask her where Macintyre High School was—and then, of course, where Inverell was. Charli, as always, was the perfect ambassador for her school, for her community and for her State, as she answered Her Majesty's questions and also spoke to Prince Phillip and Prince Andrew.
The SRC movement is a tremendous organisation in the training it gives to young leaders, and the experience Charli has gained from this day will undoubtedly remain with her for the rest of her life. Charli is an excellent SRC member and school representative, who contributes so much to her school, the school community and the wider school community through her contribution to the State working party. She contributes greatly to the community of Inverell, and now also as a representative of young people from New South Wales at a regal function at Admiralty House, in the company of Her Majesty Queen Elizabeth 11, the Duke of Edinburgh, the Prime Minister of Australia, John Howard and Mrs Howard, and many other very important people from New South Wales. I am sure all members of the House will join me in congratulating Charli on her many achievements, and particularly on the manner in which she conducted herself and represented her community on that very special day in March.
BUILDING SUSTAINABILITY INDEX
Ms SYLVIA HALE [9.43 p.m.]: In July 2005 the New South Wales Government introduced the Building Sustainability Index [BASIX] assessment. This initiative was designed to reduce energy consumption in new residential homes by 25 per cent and water consumption by 40 per cent. At the time it was applauded as a move to rein in new residential subdivisions whereby most houses were designed with little regard for energy or water consumption. BASIX is an assessment tool that gives new home builders the flexibility to pick and choose from a wide range of options to achieve an overall sustainability rating.
Home owners can still have an extra rumpus room, a spare study, or a heated swimming pool while at the same time satisfying BASIX requirements by choosing such items as passive solar design or a native garden. The beauty of the system is that it is not prescriptive: it is a free, simple to use program that people can experiment with on-line before lodging a development application. It allows them to make choices that work for them and their lifestyle. Yet, at the same time it improves the overall sustainability of new buildings in New South Wales.
Achieving the necessary rating can add up to $8,000 to the cost of a new home, although in many cases it will be less. Some designs achieve the necessary rating with very little modification, while the average cost is between $3,000 and $5,000. But, in the long term, BASIX offers savings. The Government's own promotional material claims that Basix enables the average householder to reduce water and electricity bills by between $300 and $600 per year. Over 10 years this adds up to approximately $5,000 per household, meaning that the initial cost is repaid within 10 years. After this, the householder makes savings each and every year, for the rest of the dwelling's lifetime. But the benefits are not just for householders. The scheme is expected to save New South Wales more than 278 billion litres of water over the next decade, which is 15 per cent of the capacity of Warragamba Dam. I remind the House that today Warragamba Dam is only 42.9 per cent full.
This means that over the next 10 years BASIX will save more than one-third of the water currently in Warragamba Dam. Also, BASIX will save 9.5 million tonnes of greenhouse gas emissions—that is the equivalent of taking 2.6 million cars off the road. Despite these benefits, BASIX is under attack. The property industry has lobbied hard to have BASIX weakened or replaced with a voluntary system. Arguing that the scheme increases the upfront costs of new homes, the industry has appealed to the Premier's stated concerns about housing affordability. The Greens share those concerns but the arguments of the property industry are spurious. As I have already said, in the medium to long term, BASIX saves money. After almost two years of operation, developers have fully integrated BASIX into overall construction costs, and it is disingenuous for them to argue that it makes housing unaffordable. BASIX obliges developers who want to be genuinely competitive to absorb some of these costs.
Unfortunately, there are signs that the Government is buckling under the pressure from its big donors. In the past five years the property industry donated more than $6.6 million to the State Labor Party, and a further $2 million went to Federal Labor. A money mountain of this scale is too great to ignore. The property 86 LEGISLATIVE COUNCIL 23 May 2006 industry is urging the demise of BASIX and, unfortunately, the Premier and the Treasurer are listening. From 1 July BASIX energy targets are due to increase from the current 25 per cent to 40 per cent, but this is now looking unlikely. Inside sources have told me that this increase—which the industry has had a full two years to plan and prepare for—is about to be abandoned. Worse still, the entire BASIX system is now in jeopardy. Sadly, Morris Iemma does not share the environmental concerns of his predecessor. But the Government cannot have it both ways. It cannot shelve the desalination plant pending the success of new recycling and water-saving initiatives while at the same time abandoning the very programs that will achieve these water savings.
With climate change set to worsen, programs like BASIX will enable New South Wales to meet greenhouse gas reduction and water efficiency targets. BASIX is not radical; it brings New South Wales into line with building standards in many other jurisdictions. The United Kingdom recently announced a further tightening of standards that are already more stringent than those in New South Wales. BASIX is an affordable, practical and commonsense tool to help make new homes more sustainable, comfortable, and economical in the long term. The Government must build on the existing system, rather than abandon it. [Time expired.]
JESSIE STREET NATIONAL WOMEN'S LIBRARY
The Hon. JAN BURNSWOODS [9.48 p.m.]: Last Saturday I had the great pleasure of going to the Jessie Street National Women's Library in Ultimo, partly, I must admit, to have a delightful inspection of the library's new home in a building in Harris Street, Ultimo, but also to attend a ceremony unveiling a plaque in memory of Val Buswell, who, prior to her death, had been the president of the Ryde-Hunters Hill branch of Business and Professional Women. Over many years Val had served on a variety of bodies, particularly those relating to women. She had been a member of the National Women's Consultative Council, a member of advisory bodies in the area of veterans' affairs, president of the War Widows Guild, and for decades she was a fighter for pay equity for women.
Ryde-Hunters Hill Business and Professional Women has been a strong supporter of the Jessie Street National Women's Library, which plays a very important role in the collection of books and archives relating to women, particularly in Australia. Money donated had provided some acquisitions for the library and that was the reason for the function, as well as the unveiling of the plaque in memory of Val Buswell. I urge female members of the House, in particular, to visit the Jessie Street National Women's Library. I thank Sydney City Council, which had previously provided quite cramped quarters at Town Hall House. It is wonderful to see the library now in large and airy new premises in Ultimo.
[Time for debate expired.]
Motion agreed to.
The House adjourned at 9.50 p.m. until Wednesday 24 May 2006 at 11.00 a.m. ______