LEGISLATIVE ASSEMBLY
Wednesday, 17th November, 1993
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Mr Speaker (The Hon. Kevin Richard Rozzoli) took the chair at 2.15 p.m.
Mr Speaker offered the Prayer.
DEPARTMENT OF THE LEGISLATIVE ASSEMBLY
Report
Mr Speaker laid upon the table the report of the Department of the Legislative Assembly for the year ended 1993.
Ordered to be printed.
MATTER OF PUBLIC IMPORTANCE
Mr Speaker advised the House that he had received from the honourable member for Riverstone notice of a matter of public importance, which would be set down for debate at the conclusion of formal business.
MINISTRY
Mr FAHEY: I wish to inform the House that in the absence of the Minister for Industrial Relations and Employment and Minister for the Status of Women I will answer questions that may be directed to her portfolio.
QUESTIONS WITHOUT NOTICE
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POLICE ADMINISTRATION
Mr CARR: My question without notice is directed to the Premier. Have changes to police administration finally been forced on the Government by the Hon. Ted Pickering? Do the changes represent a vote of no confidence in the present Minister for Police?
Mr FAHEY: The answers in brief are no and no. However, I take this opportunity to advise honourable members that in the past five and a half years this Government has undertaken enormous reform within the Police Service. A great deal of that reform was initiated by the former Minister for Police. Honourable members who recognise a fair thing would acknowledge that the matters brought forward in recent times by the Hon. Ted Pickering were brought forward out of one concern, and one concern only, which was to establish a better Police Service in this State and one in which the public had complete confidence. The former Minister undertook considerable work in that direction, and I am pleased that that work is being continued by the present Minister. In the past 14 months the Minister has established a number of initiatives which have improved the Police Service. The bottom line is this: the Government is interested in having a better Police Service tomorrow than we have today, which is considerably better than the Police Service we had yesterday.
Mr SPEAKER: Order! I call the honourable member for Coogee to order.
POLICE PROTECTION OF PAEDOPHILES
Mrs GRUSOVIN: My question without notice is directed to the Minister for Police and Minister for Emergency Services. Was Colin Fisk, the paedophile to whom the Government granted indemnity, last Sunday suspended from the witness protection program? Was this because he spoke to "A Current Affair" about police corruption and paedophile networks? Why was the safety of this witness jeopardised?
Mr GRIFFITHS: Some matters need to be made very clear. As I said yesterday, I find any form of child abuse or police corruption totally abhorrent. Child abuse is the lowest form of human depravity.
Mr SPEAKER: Order! I call the honourable member for Granville to order.
Mr GRIFFITHS: Let there be no mistake about that. I make it very clear that the Government will never move away from its obligation to protect the young and innocent in our society. If the honourable member, or any other member in this House, has evidence of paedophilia that the police are not aware of - and I mean evidence - let the chatter in this House stop, let the evidence be laid on the table, and the police will deal with it appropriately.
Later,
Mr GRIFFITHS: Earlier the honourable member for Heffron asked me a question. I am advised that the person named by the honourable member has not been discharged from the witness protection program. However, a review of his status within the program is under way. That review is based on his allegedly breaching the clear terms upon which he was put under police protection. I am further advised that this matter will be assessed in the immediate future. It seems that three options are now available. First, he may be discharged from the program; second, he can continue under the current arrangements; and third, those arrangements may be altered. Again the honourable member for Heffron has it wrong, wrong, wrong.
POLICE ADMINISTRATION REFORMS
Mr KERR: I address my question without notice to the Minister for Police and Minister for Emergency Services. What is the state of the police administration reforms which were announced in April this year? Will the Minister advise the House?
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Mr GRIFFITHS: The Government's approach to its policing program is to be open about problems and press continually for improvement.
Mr SPEAKER: Order! I call the honourable member for Hurstville to order.
Mr GRIFFITHS: Those problems requiring immediate attention are being dealt with in a planned, methodical and effective way. Let there be no mistake about that. In answer to the question of the honourable member, I am pleased now to announce details of the fifth stage of the reform program now under way in the police portfolio. I have informed the House previously about the first four stages of the extensive reform and review program already undertaken. Some of those changes have required legislation which received bipartisan support in the Parliament.
I am delighted to be able to inform the honourable member that the program of reform is continuing. Its fifth stage will pick up a number of issues raised before the Joint Select Committee upon Police Administration, and elsewhere. Following recent Cabinet discussion, it was decided that the justice committee would examine and report to Cabinet on a number of issues. The first of those matters involves the relationship between the Minister and the Commissioner of Police. The joint select committee examined this issue extensively and, among other things, expressed a strong view on the capacity of the Minister to direct the commissioner on operational matters.
Mr SPEAKER: Order! I call the honourable member for Londonderry to order.
Mr GRIFFITHS: The committee also examined other aspects of this most significant relationship in light of the difficulties that occurred prior to my appointment to this portfolio. The justice committee will examine the way in which those past difficulties have been addressed, as well as any other issues related to the Government's primary objective of ensuring accountability of the Police Service, through the Minister, to the Parliament. If there is any shadow of doubt, that will most certainly be removed. The justice committee will examine whether the internal affairs branch of the Police Service is able to operate effectively within the present structure.
This branch bears the onerous and critically important responsibility of investigation of complaints against police officers. This branch undertakes the most important investigations, including most of the significant allegations of corruption. There have been suggestions that this unit, or the responsibilities given to it, should be placed outside the Police Service. Models exist in other jurisdictions which differ from the arrangements that prevail in New South Wales. The Police Association and the commissioner have for years been pushing for this method to come to fruition. I am sure that the previous Minister and previous Labor Government are fully aware of the association's comments.
The justice committee will pay particular attention to the need for an independent police complaints authority, which would be completely separate from the Police Service and would have its own investigative resources. Independent examination of complaints against police by an authority of this kind - particularly those alleging corruption - may be the only way of satisfying the community's concern for a process free from perceived conflicts of interest. New South Wales has other bodies whose role in this area could be expanded - for example, the Crime Commission.
The need for additional scrutiny of internal affairs investigations and functions will also be examined in detail. Matters dealt with by internal affairs are all notified to the Ombudsman, who oversights investigations and, as a result of amendments introduced by the Government in the last session of Parliament, can even take them over should he deem it appropriate. The Independent Commission Against Corruption is also informed of most internal affairs investigations because the initial allegations usually fall within the definition of corrupt conduct under the Independent Commission Against Corruption Act.
Consideration will be given by the justice committee to formalising extensive formal and informal interaction on these matters between the Police Service, the ICAC, the Ombudsman and the Crime Commission. This might be achieved through the establishment of a permanent monitoring committee or some other means. The justice committee will examine these various alternatives and report its conclusions to the Cabinet. Other matters are also to be attended to. The third report of the joint select committee emphasised problems arising from the Police Service having to maintain custody of seized, illegal drugs.
A committee has been established by the Attorney General to examine and report on how security of drugs in police custody might be improved. The Attorney General has ministerial responsibility for the Drugs (Misuse and Trafficking) Act and it is likely that changes to that Act will be recommended. The committee will be chaired by the Hon. Adrian Roden, Q.C., a former justice of the Supreme Court who has also served as an assistant commissioner with the ICAC. This committee was established following an approach by me on 3rd September to the Attorney General seeking a review of the law relating to the destruction of drugs.
The Government's aims are to ensure absolute security in and accountability for the handling of seized, illegal substances from the time of seizure to the time of destruction; to provide sufficient methods of analysis and sampling of seized exhibits to ensure adequate evidence is available for the purposes of criminal proceedings; to afford a reasonable opportunity, where practicable, for any person charged or likely to be charged in connection with the seized substances to obtain an independent analysis; and, subject to the foregoing, to permit the destruction of seized, illegal substances at the earliest possible time.
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In addition, the review will make recommendations for such amendments to the Drug (Misuse and Trafficking) Act and or other legislation as may be necessary for the better control, management, security and destruction of illegal substances seized by law enforcement agencies. The Government also intends to ensure an appropriate overview of security of drugs held in police custody. I shall seek the involvement of ICAC in a review of current practices and procedures applying to discipline within the Police Service. Some preliminary work to identify problems in this area has already commenced within the Ministry for Police and Emergency Services. For example, it is obvious that the Police Service regulations require extensive rewriting to remove anomalies and to reflect recent changes to primary legislation.
Various problems have also been identified by the Ombudsman, the Police Service, the Police Board and the Police Association. Now that changes to the system for dealing with complaints are operating, it is timely that this much overdue review should proceed rapidly. The review will benefit from the overseas experience of the Inspector General, and I look forward to the assistance of the ICAC commissioner with whom the Police Service has formed a productive relationship on anti-corruption projects. Frequent mention has been made of the Frenchs Forest matters, various aspects of which were examined in considerable detail by the joint select committee.
The Independent Commission Against Corruption has been fully informed of that matter and has been furnished with a copy of the Crime Commission's report, which resulted in criminal and disciplinary proceedings being taken against a number of officers. The ICAC will be provided also with all transcripts of evidence from witnesses who appeared before the Crime Commission in the course of its investigation.
Finally, the role of the joint technical services group of the Police Service will be reviewed. The group provides essential surveillance and technical support for police and for joint police-Crime Commission operations. Its capacities have been substantially upgraded in recent years. It is now appropriate to examine whether it should remain where it is within the Police Service or whether, for example, it should be administratively closer to the Crime Commission, which also comprises a group of specialists. The purpose of this review is to ensure that high priority investigations receive effective technical support and that administrative arrangements are conducive to continual improvement of the expertise and equipment of the joint technical services group.
This year, 1993, has not been a good year for the New South Wales Police Service, but the Government is determined that 1994 will be a period of solid achievement. The reviews I have just described will build on the four stages of my reform program, which is already in place, to improve the quality and efficiency of police services to the community. The Commissioner of Police has today pledged his full personal support and that of the entire Police Service for the Government's program of review and reform. In particular, the concept of an independent police complaints authority is strongly supported.
The commissioner has proposed to me initiatives targeted at three critical areas. They are administrative efficiency, the accountability of officers for their every action, and the need to raise the awareness of all police concerning the broader social consequences of the way they interact with the community. Those proposals have received my full approval in principle and I intend them to come to fruition within the next six months. As these initiatives prove, the Government accepts totally its responsibility for police administration. Let there be no doubt that the Fahey Government has control of the agenda and that it will achieve its objectives. It is determined to ensure the full accountability of the Police Service to the public of New South Wales.
STATE RAIL AUTHORITY FINANCIAL PERFORMANCE
Mr MERTON: I address my question without notice to the Minister for Transport. Will the Minister advise the House of the State Rail Authority's financial performance for the past 12 months? What improvements are now planned to services for commuters?
Mr SPEAKER: Order! I call the honourable member for Bulli to order.
Mr BAIRD: I thank the honourable member for Baulkham Hills for his question.
Mr SPEAKER: Order! I call the honourable member for Cabramatta to order.
Mr BAIRD: The honourable member has an interest in transport as the parliamentary secretary for transport and roads and is doing a great job, as usual.
Mr SPEAKER: Order! I call the honourable member for Blacktown to order.
Mr BAIRD: It is a great pity that the honourable member for Kogarah did not follow the fine example of the honourable member for Baulkham Hills.
Mr SPEAKER: Order! I call the honourable member for Kogarah to order.
Mr BAIRD: This week the honourable member for Kogarah continued to complain that safety on our railways has been downgraded because of the Government's failure to spend money on maintenance. That is an amazing statement considering the small amount that the former Labor Government spent on maintenance and considering the condition of the railways when the coalition came to office. This Government has invested $2.4 billion in the railways in the time it has been in office, and it is a very different rail system that we operate today. If the Page 5552 honourable member wanted to concentrate on something, he should have concentrated on the financial performance of the State Rail Authority, which has now come into line with best practice around the world. The Opposition should be aware that the SRA's operating result was $62 million better than for the budget in the last financial year.
Mr SPEAKER: Order! I call the honourable member for Port Stephens to order.
Mr BAIRD: In the current financial climate that is an outstanding achievement. It means that the Government's contribution towards the cost of running the rail system fell by $30 million, or 11 per cent. In real terms State Rail is now saving taxpayers about $240 million a year compared with the cost when Labor was in office. That amount is significant. It shows that the Government is getting it right. Members on this side of the House had to put up with the pain of getting the reforms through to achieve these results. Cumulative savings to the Government since it has been in office and to the taxpayers of New South Wales amount to $838 million over the past five years.
Mr SPEAKER: Order! I call the Minister for Land and Water Conservation to order.
Mr BAIRD: That $838 million has been spent on roads, hospitals and schools across this State, and all New South Wales benefits from that. Instead of the waste that went on under the previous Government, this Government is about reforming the State Rail Authority and making the system better. This Government has been rebuilding the system.
Mr SPEAKER: Order! I call the honourable member for Hurstville to order for the second time.
Mr BAIRD: I shall respond to the interjection. Hurstville station has never looked better. It was one of the most run-down stations in the network. The honourable member should compare the way Hurstville station looks now under this Government with the way it looked under the previous Labor Government.
Mr SPEAKER: Order! I call the honourable member for Penrith and the honourable member for Newcastle to order. I call the honourable member for Penrith to order for the second time.
Mr BAIRD: Honourable members opposite - including the honourable member for Penrith - know that stations have been upgraded.
Mr SPEAKER: Order! I call the honourable member for St Marys to order.
Mr BAIRD: The honourable member for Penrith knows that her station now has a car parking area that it did not have. The former Labor Government promised it for a long time.
Mr SPEAKER: Order! There is far too much interjection. I call the honourable member for Penrith to order for the third time.
Mr BAIRD: We all know there has been an amazing transformation of the rail system by this Government as a result of the determination of all members on this side of the House. Members of the Opposition can only criticise.
Mr SPEAKER: Order! I call the honourable member for Kogarah to order for the second time. I call the Minister for Multicultural and Ethnic Affairs to order. I call the honourable member for Londonderry to order for the second time.
Mr BAIRD: This Government has been rebuilding the system, introducing modern rolling-stock and providing safe and reliable signalling equipment. The result of this investment is paying dividends for the commuter. Last year on-time running for both suburban and inner city peak hour trains was 92 per cent, the highest ever recorded, not the 70 per cent or 80 per cent that was recorded under Labor.
Mr SPEAKER: Order! I call the honourable member for Illawarra to order. I call the honourable member for Eastwood to order.
Mr BAIRD: The biggest improvement was on the western line, where reliability improved from 86 per cent to 93 per cent. Instead of complaining, the honourable member for Penrith should congratulate the Government because her commuters and her constituents are benefiting.
Mr SPEAKER: Order! I call the honourable member for Smithfield to order.
Mr BAIRD: The honourable member for Riverstone, the honourable member for Blacktown and the honourable member for St Marys should join her. This Government has eliminated all the manual door suburban trains, introduced a modern automatic ticketing system, begun an easy access program for the disabled, expanded the electric rail system to Dapto, introduced closed-circuit television surveillance on a further 10 stations, and began a $10 million upgrading program of city circle stations. Of course, the Government spent $658 million rebuilding, providing vital infrastructure such as bridges, signals, stations, freight wagons and carriages.
Mr SPEAKER: Order! I call the honourable member for Broken Hill and the honourable member for Canterbury to order.
Mr BAIRD: I am happy to talk about all those matters because on every criteria in the railways, this Government is doing it better than the previous Labor Government ever did, and Opposition members know it.
Ms Allan: What about clean trains?
Mr BAIRD: I am glad to hear the honourable member for Blacktown calling out on this issue. Blacktown station will have a major transformation. The Government is spending $14 million on upgrading the station and interchange. How much did the Labor Government spend at Blacktown?
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Mr SPEAKER: Order! I call the honourable member for Riverstone to order.
Mr BAIRD: The changes to the timetable this weekend should provide improved reliability. They signal also the withdrawal of the last of the single-deck fleet. As from this weekend the system will consist entirely of a double-deck fleet. The Government can only compare the condition of the State Rail Authority when it came to office with what is happening now - a much improved system.
Mr SPEAKER: Order! I call the honourable member for Smithfield to order for the second time.
Mr BAIRD: The Government is continuing to improve the rail system for commuters.
Mr SPEAKER: Order! I call the honourable member for Riverstone to order for the second time.
Mr BAIRD: I repeat that the cumulative savings achieved by the coalition Government are $838 million.
DISMISSAL OF FORMER FRENCHS FOREST POLICE PATROL COMMANDER
Mr ANDERSON: I direct my question without notice to the Minister for Police and Minister for Emergency Services.
Mr SPEAKER: Order! I call the honourable member for Burrinjuck to order.
Mr ANDERSON: Did the Police Board recommend the dismissal of the former patrol commander at Frenchs Forest after the Minister referred the matter to the board for consideration? Why did he reject the board's recommendation?
Mr GRIFFITHS: I thank the Leader of the Opposition in waiting for his question.
Mr Langton: On a point of order. I recall vividly that yesterday I was called to order for not addressing a member by his proper title. I draw your attention to the fact that the Minister is doing the same thing.
Mr SPEAKER: Order! I call the honourable member for Eastwood to order for the second time. I direct the Minister for Police and Minister for Emergency Services - as I directed the honourable member for Kogarah yesterday - to address members by their correct titles.
Mr GRIFFITHS: I thank the honourable member for Liverpool for his question. We all wish him luck. As the honourable member is aware, he moved the Ellis amendment, which I graciously accepted because I saw the benefit of it. The recommendation came to me for review. I asked the board to review its decision.
Mr SPEAKER: Order! I call the honourable member for Ashfield to order.
Mr GRIFFITHS: The board examined the decision, but did not recommend dismissal.
Mr SPEAKER: Order! I call the honourable member for Smithfield to order for the third time.
Mr GRIFFITHS: Would the honourable member for Smithfield like to make that statement again outside the House or in the House? He is wrong.
Mr SPEAKER: Order! I call the honourable member for Londonderry to order for the third time.
Mr GRIFFITHS: I will provide the honourable member for Liverpool with a copy of the board's recommendation, with the board's approval, to prove that his assertion is wrong.
SYDNEY FISH MARKET
Mr TURNER: I direct my question without notice to the Minister for Agriculture and Fisheries and Minister for Mines. Will the Minister inform the House of the Government's plan for the fish marketing system in New South Wales and the future of the Sydney Fish Market at Pyrmont?
Mr CAUSLEY: I welcome today the students and teachers of Gloucester Public School. I thank the honourable member for Myall Lakes for his question. It gives me the opportunity to clarify some of the mischievous statements made by the honourable member for Port Stephens - the understudy to the honourable member for Drummoyne. There is no doubt that some of his mischievous statements have caused fear in the industry, particularly the fishing industry and the Sydney Fish Market at Blackwattle Bay.
The Government has no intention of selling the fish market. I made that clear some time ago. More than 18 months ago, the previous Premier and I went to Blackwattle Bay and made it quite clear that the Sydney Fish Market would remain at that site. Perhaps I should have made it clear to the House that the Government does not believe it should be in the fish marketing business. That is something for the industry or private enterprise. I have to make the point that on a number of occasions the Government has said that it will lease the site on a long-term basis and will call for expressions of interest for the lease.
The honourable member for Port Stephens said that I walked out of the fish market without informing the industry, that the Government intended to walk away from it and deregulate the industry. He also made other scurrilous comments. He said that the Government was in need of the site for the Olympic Games; he said anything that came into his head. Nothing could be further from the truth. There is no doubt that the Government regards the Sydney Fish Market as an integral part of the centre of Sydney, and it will remain.
If the industry does not bid for the market following the call for expressions of interest, obviously there must be deregulation. I should have thought it was obvious that a monopoly cannot be handed over to private enterprise. If the industry Page 5554 wants to run the market, the Government is willing to talk about the phasing in of deregulation. There is some debate in the industry whether deregulation should be introduced; it is probably divided 50:50. Though the present system is regulated, the industry is not abiding by the regulations. If the honourable member for Port Stephens would give up talking to his neighbour, he might hear that only a few days ago fishermen were found at the Sydney Fish Market selling from the back of a truck; they were not selling through the market.
Mr SPEAKER: Order! I call the honourable member for Davidson to order.
Mr CAUSLEY: In fact, $8,000 worth of lobster was being sold in the very backyard of the Sydney Fish Market. The industry is flouting the regulations. The honourable member for Port Stephens is saying, "It is terrible. They are going to deregulate the fishing industry", but the fishing industry is deregulating itself. Therefore, one must look sensitively at deregulation. Our real problem is that the $37 million debt that the Labor Party left us is crippling the fish markets. I make it clear to industry that the Government is prepared to forgo a substantial amount of that debt. So industry need not be fearful that that huge debt will cripple any potential bid for the fish markets.
I have also set up a transition committee to deal with all sections of the fishing industry, to talk about expressions of interest, and to talk about deregulation that might occur if private enterprise makes a bid. We need on that committee representatives from all sections of industry to enable discussion on expressions of interest. I have called for non-binding expressions of interest and have allowed a period of four months for that to occur. I give an assurance that whoever makes a bid for those markets will be given time to do so professionally. I hope a bid is made by people in the catching sector because I believe they are the people who should be running the markets. It is their catch and they are the ones who want to get the best price for their product. Obviously, with professional help, they would be able to run those markets. If they are given a chance and people stop peddling lies around the place I believe we can get on with it and ensure a continuing fish market in Sydney and a continuing outlet for New South Wales catches.
FERRY SALES
Dr MACDONALD: Can the Minister for Transport and Minister for Roads confirm that on Thursday 11th November the manager of the Balmain shipyards announced to a meeting that three Manly ferries and four Lady class ferries will be sold this financial year?
Mr BAIRD: At present there is a review of ferry services. Plans are being looked at to determine the best use of RiverCats on inner city services and to provide better service overall. There are ongoing discussions to determine whether one or more of the Lady class ferries will be made redundant.
Mr SPEAKER: Order! I call the honourable member for Drummoyne to order.
Mr BAIRD: At present we have six new RiverCats, which is six more than the Labor Party had operating when it was in government. The three JetCats on the Manly service are about 98 per cent reliable compared with 65 per cent and 70 per cent for the old hydrofoils. We do not apologise for that. We are looking at the possibility of integrating RiverCat services with some of the inner harbour services. We are considering whether the oldest of the Lady class vessels should be sold off, or whether they provide more appropriate, faster and more comfortable services than the older ferries, which are much more costly to run. The Government's proposal is all about efficiency and about providing -
[Interruption]
The honourable member for Kogarah should just settle down.
[Interruption]
Mr SPEAKER: Order! The Minister for Transport and Minister for Roads is the only one with the call.
Mr BAIRD: There is no suggestion that any of the Manly ferries will be affected. I am not sure why the honourable member for Manly is so concerned.
Mr SPEAKER: Order! I call the honourable member for Waratah to order. I call the honourable member for Fairfield to order. I call the honourable member for Manly to order.
Mr BAIRD: Discussions are being held in North Sydney to determine how we can provide a more effective service for people living in harbour areas.
Mr SPEAKER: Order! I call the honourable member for Baulkham Hills to order.
Mr BAIRD: We do not apologise for that.
Mr SPEAKER: Order! I call the honourable member for Wallsend to order.
Mr BAIRD: By selling off outdated equipment we can achieve greater savings and provide better performance and efficiency.
Mr SPEAKER: Order! I call the honourable member for Wallsend to order for the second time.
WESTERN SYDNEY ECONOMIC DEVELOPMENT AND JOB CREATION
Mr RICHARDSON: My question without notice is directed to the Minister for Small Business and Minister for Regional Development. What action is the Government taking to assist economic development and job creation in western Sydney? Has this action received the support of local government?
Mr CHAPPELL: I thank the honourable member for The Hills for his question, which refers to the economic future of greater western Sydney.
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Mr SPEAKER: Order! I call the honourable member for Bulli to order for the second time.
Mr CHAPPELL: Recent studies have indicated that by the year 2001 more than two and a quarter million people will live in the greater western Sydney region. If we are to enable three-quarters of those people to work close to their homes we will have to provide 350,000 additional jobs in that region. The region stretches from Windsor and the Hawkesbury area generally to Camden, and from the Parramatta region out to the Blue Mountains. The Government, recognising the importance of that region, has brought about significant activity by researching the details required to meet the needs of people in that region. One of the key recommendations in a report commissioned last year, entitled "The Greater Western Sydney Economic Development Statement", is the establishment of a special economic zone and the appointment of a board of active business people - people who are committed to the economic development of the region and know how to create business activity and jobs in the region.
The establishment of the Greater Western Sydney Economic Development Board, which is under way at present, has the support of local councils and other stakeholders in the area. Recently I had a meeting with a number of mayors and other key players in that western area, as has the director-general of my department. We have received from those people considerable support for our proposal to support the development of economic activity in that area. Advertisements calling for nominations for the 12-member board were recently placed in the Sydney metropolitan press and the western Sydney suburban press. Already large numbers of nominations have been received. We are keen to have the widest range of candidates who know how to promote business, create jobs and encourage economic activity throughout that region.
The Greater Western Sydney Economic Development Board will provide the Government with valuable hands-on advice on the development needs of the area and on impediments to growth in the region. It will help to co-ordinate dealings between this Government, the Federal Government, local government and industry throughout the whole region. The board will also foster internationally competitive and sustainable economic development in a region of fairly considerable expanse, about 8,800 square kilometres, in which there is already significant economic activity, with people already participating in export markets and with many businesses capable of developing their export potential.
Western Sydney is growing at a rapid rate. Over the decade between 1981 and 1991 the increase in the region's population was 19.3 per cent, obviously with pressure points in some particular areas. As we all know, there have been significant difficulties during the period of great recession that we have been through, particularly in the creation of employment for younger people. Youth in the greater western Sydney region has been particularly hard hit by unemployment, and it is the Government's task to do whatever can possibly be done to turn that situation around. In the Fairfield, Liverpool, and outer southwestern Sydney region the youth unemployment rate is 19.9 per cent. In Blacktown and Baulkham Hills it is about 16.2 per cent, compared with about 13.2 per cent for Sydney overall. The last two months have shown a reasonable improvement in job prospects for our young people compared with the previous 12 months, but we must ensure that business is given every chance to create more economic activity and to create more jobs, particularly for our youth.
We know that the winning of the Olympics for the year 2000 will lead to a direct growth in jobs and in economic activity and the people of the west will be major beneficiaries. Many other factors need to be promoted and developed as the program is developed, including Badgerys Creek airport, which has been on the drawing-board for some time. Some people play fast and loose politics - all too often from the other side. I would really like to see some commitment from the Federal Government to enable the progress of that significant regional activity, which may lead to many jobs and a great deal of economic growth. The New South Wales Government stands ready to facilitate that program in any way it can, in order to create jobs in the region.
I am confident that the establishment of the Greater Western Sydney Economic Development Board will help to accelerate the policies of this Government aimed at combating the current, unacceptably high level of unemployment in the region. The board will build on the work of the Department of Business and Regional Development in the west. Under the business expansion program and the national industries extension service this year $700,000 has been spent on encouraging business growth. The people of the west have already shown considerable enthusiasm for what the Government is embarking on. I am intent on appointing a board comprised of proven business achievers, people who recognise an opportunity when they see one, people who know how to structure a viable business proposition, who know how to access markets both domestic and export, and who know how to build business and jobs in the western suburbs. I encourage such people to nominate now for positions on the Greater Western Sydney Development Board.
STATE WARDS IN KINGS CROSS CLUBS
Mr WHELAN: My question without notice is directed to the Minister for Community Services, Minister for Aboriginal Affairs and Minister for the Ageing. Has a 15-year-old State ward been twice removed from the Pink Panther and Pink Pussycat strip clubs? Does she continue to work there as a prostitute and stripper? Why is the department unable to keep children out of these establishments and in safety?
Mr LONGLEY: Members of the Opposition and other honourable members of this House know the great difficulties with State wards, their traumatic backgrounds and difficult circumstances. The reality Page 5556 is that the department has an adolescent unit working at Kings Cross. It is charged with the responsibility of trying to help runaways, people who come from difficult backgrounds, whether they are State wards or not. It is about time the Opposition had a level of sensibility and respect -
Mr SPEAKER: Order! I call the honourable member for Ashfield to order for the second time. I call the honourable member for Bulli to order for the third time.
Mr LONGLEY: Circumstances such as this are clearly of great distress to all honourable members of this House, but particularly to me and the Government. This Government has allocated significant additional funds to address precisely these problems. The adolescent units trying to resolve these problems for young people who have come from the most difficult and traumatic backgrounds, and trying to deal with these difficult circumstances and rehabilitate these young people so that they might become mature, responsible adults. All the Opposition does is continually criticise and run down State wards. This is a condemnation of the Opposition and its heartless approach. It wants to lock these children away in institutions when they have done nothing wrong, rather than help them to rehabilitate their lives so that they can become mature, responsible adults in our society.
STATE WARDS IN KINGS CROSS CLUBS
Mr WHELAN: I wish to ask a supplementary question arising from the answer given by the Minister. Will the Minister investigate claims that those clubs I have mentioned have been repeatedly tipped off prior to police and Department of Community Services raids? Will he consult -
Mr Humpherson: On a point of order. It is patently clear at this point in the supplementary question that the question does not arise from the Minister's answer.
Mr SPEAKER: Order! I ask the honourable member for Ashfield to repeat the question, which was interrupted by the honourable member for Davidson taking a point of order.
Mr WHELAN: Will the Minister investigate claims that the -
Mr SPEAKER: Order! I call the honourable member for Monaro to order.
Mr WHELAN: - strip clubs have been repeatedly tipped off prior to police and Department of Community Services raids? I was interrupted, but I was about to proceed to ask whether the Minister will consult with the Minister for Police to ensure that these clubs are prosecuted for the sexual exploitation of children.
Mr West: On the point of order. The point of order taken by the honourable member for Davidson is correct. The honourable member for Ashfield has asked an additional question. A supplementary question is supposed to derive from an answer. Obviously the honourable member had the question already prepared.
Dr Refshauge: On the point of order. It is obvious from the Minister's answer that he was talking about State wards. The honourable member for Ashfield in his supplementary question is still talking about State wards. The Leader of the House knows full well that a supplementary question does not have to be relevant to the original question but must relate to the answer that has been given. The Minister spoke about sexual offences committed on State wards. He spoke about State wards at risk and what the Department of Community Services is or is not doing. The subject of the supplementary question is that the department is not doing what it should be doing.
Mr O'Doherty: On the point of order. If the sort of rules that -
Mr SPEAKER: Order! I remind all honourable members that a number of them are on three calls to order already and are at grave risk. I now have a long list of members who are deemed to be on three calls. Any of those members who attracts my attention will be requested to leave the House.
Mr O'Doherty: In response to the remarks of the Deputy Leader of the Opposition, it is obvious that the Minister mentioned children, the bureaucracy, and his department. To permit supplementary questions to be asked that would have an effect on areas of interest to other Ministers would make the whole concept of supplementary questions ludicrous.
Mr Whelan: On the point of order. I know, Mr Speaker, that you always receive great assistance from the honourable member for Ku-ring-gai. However, I refer to the sessional orders that permit supplementary questions to be asked by a member who asked the original question. You have previously ruled that a supplementary question must be relevant to the Minister's response. I have asked a supplementary question about the matters to which the Deputy Leader of the Opposition referred, namely, a State ward. I am not asking a question about anyone else. My supplementary question is about a 15-year-old State ward that the Government is condoning being a young prostitute, and about whom this Minister is doing nothing. I want to know what he is going to do about it.
Mr SPEAKER: Order! I have said on a number of occasions that the sessional order regarding supplementary questions is still in its formative stages. It is correct to say that there must be a nexus between the supplementary question and the answer just given. My attention was invited to the fact that the honourable member for Ashfield had a prepared question. That would not necessarily preclude his question being ruled relevant. It may well be that a member is able to anticipate the answer to his original question. Therefore, a supplementary question cannot be ruled out on the basis that a member had it written out.
Page 5557
During discussion on the points of order I gave consideration to the matter and I am of the opinion that there is a nexus between the Minister's answer in regard to the action of the Department of Community Services, its work in Kings Cross and its treatment of State wards. I rule that the question asked by the honourable member for Ashfield comes within the definition of a supplementary question and therefore is in order.
Mr LONGLEY: The answers are: not to my knowledge; and yes, if the Opposition does have information, it should make it known to the police.
______
PETITIONS
Capital Punishment
Petition praying that the House will enact legislation to reintroduce capital punishment in extreme cases of murder where there is absolutely no doubt that the offender committed the crime, received from Mr Windsor.
Phillip Parkway, Rooty Hill
Petition praying that stage 2 of the Phillip Parkway, Rooty Hill, linking Eastern Road with the Great Western Highway, will receive high priority, received from Mr Amery.
Serious Traffic Offence Penalties
Petition praying that laws relating to road accident fatality or injury be re-evaluated, received from Mr Mills.
Mount Victoria Interurban Train Termination
Petition praying that the House prevent the termination of interurban trains at Mount Victoria, received from Mr Clough.
F6 Freeway Emergency Telephones
Petition praying that the House will consider the installation of emergency telephones on the F6 Freeway from Yallah to the north of Wollongong, received from Mr Rumble.
Homosexual Vilification Legislation
Petition praying that the House not pass those sections of the Anti-Discrimination (Amendment) Bill that make unlawful vilification on the ground of homosexuality, received from Dr Refshauge.
Illawarra Access Project for the Deaf
Petition praying that the House protect and uphold the rights of the deaf community in the Illawarra region by ensuring the continuation of the Access Project for the Deaf, received from Mr Markham.
Public Housing Tenant Water Charge Liability
Petition praying that the House reject the proposed amendment to the Residential Tenancies Act to charge public housing tenants for water consumption, received from Mr Rumble.
Shellharbour Public Hospital Children's Ward
Petition praying that the children's ward of Shellharbour Public Hospital be reopened, received from Mr Rumble.
Police Service Rotational Transfer Policy
Petitions praying that the House reject any policy by the New South Wales Police Service to introduce rotational transfer, received from Mr Face and Mr Mills.
Concord Area Police Station
Petition praying that the Government establish a police station to service the Concord-Rhodes-Cabarita-Mortlake area, received from Mr J. H. Murray.
Ingleburn and Macquarie Fields Police Stations
Petition praying that the House provide, as a matter of urgency, a permanent police station at Ingleburn and upgrade the existing police station at Macquarie Fields, received from Mr Knowles.
Warilla Police Station
Petition praying that more police be allocated to Warilla Police Station, received from Mr Rumble.
Berkeley Police Station
Petition praying that Berkeley Police Station be manned on a 24-hour basis and foot patrols be introduced, received from Mr Rumble.
REGULATION REVIEW COMMITTEE
Report: Future Directions
Mr CRUICKSHANK (Murrumbidgee) [3.12]: I bring up and lay upon the table the twenty-third report of the Regulation Review Committee on future directions for regulatory review in New South Wales.
Ordered to be printed.
Mr CRUICKSHANK: I move:
That the House take note of the report.
The committee has been able to bring this report forward as a result of five years' detailed experience in actually examining regulations. A large number of parliamentary and other groups throughout the world write reports on the subject of regulations, but my experience is that few of these bodies actually sit down to the demanding discipline of reading the regulations and considering their merits and impact on the community. Many of the esoteric reports produced on regulatory practices are based more on theory than on the practical experience of working with regulations. The committee has been able to bring forward the beneficial recommendations that are contained in this report as a result of five years of very hard grind in scrutinising regulations.
Also, the committee has benefited enormously from a short visit overseas where it was able to examine regulatory practices in the United States of Page 5558 America, France and the United Kingdom. In the foreword of this report I have indicated the need for New South Wales to make a substantial investment in regulatory reform action. My committee's discussions with the Organisation for Economic Co-operation and Development officials in Paris show that evidence is mounting that governments are approaching a situation where the volume and complexity of regulations threaten to overwhelm the capacity of government administrations and private sectors alike. OECD papers provided to the committee contain statements indicating that the present rate of growth in regulations will lead inevitably to overregulated societies in which complete compliance with the law is impossible, while citizens and governments will pick and choose which rules to obey and to enforce.
The French Conseil d' Etat has warned that citizens might be divided into two classes: the few who can afford expert advice on how to exploit to the full subtleties of the law; and everyone else, who will be hopelessly lost in the legislative maze, with no recourse to law. The OECD believes that the development of a new management framework to discipline and control regulation is the response we must now make to the dilemma of regulatory growth. New South Wales has achieved a lot so far by way of regulatory reform, and I believe substantial credit for this can properly be put down to the work and ideas of the committee.
Figures supplied by Parliamentary Counsel show that there has been a reduction from a total of 976 regulations as at 1st July, 1990, to 671 regulations on 1st September, 1993, which is a reduction of 31.3 per cent in the number of regulations. The figures supplied also show a reduction in the number of pages in this period from 15,075 to 10,291, which is a reduction of 31.7 per cent. Government departments must now substantiate their regulatory proposals. This requirement is the reason for the decline in the number of regulations. The Regulation Review Committee report addresses the weaknesses that have been disclosed in the regulation review process. That has been achieved as a result of consistent testing of the process over the past five years. The report contains a number of recommendations about future directions for regulatory review in New South Wales.
The report deals in detail with the need to restrict the formal impact assessment of regulations to the most significant cases. Also, it recognises the need to dramatically improve the standard of regulatory impact statements being produced by government departments. The report comprehensively addresses these objectives. It looks also at the issue of plain English regulations and of making the Government Gazette more user friendly to the public. Members may believe that I am drawing a rather long bow when I say that in the United States the general public actually reads and effectively makes use of a publication called the Federal Register, which is the equivalent of the New South Wales Government Gazette. The committee would like to see a similar situation develop in this State. The secret of the appeal of the Federal Register lies in the use of plain English. The report has recommendations to promote that objective.
The report also has something useful to say on the need for sustained government support of the regulatory review process. In 1993 the Public Management Service of the OECD carried out an examination of regulatory management and reform in OECD countries. It found that the determinant of success most frequently cited by officials responsible for regulatory reform was the degree of specific and sustained political support. The support of the New South Wales Government has so far been excellent for general regulatory reform. However, I do not think that I will be giving away any secrets when I say that it is the view of the committee that on a number of occasions the regulatory reform process has not been supported at ministerial level. The report lists some of the most serious departures from the requirements of the Subordinate Legislation Act while, at the same time, giving credit to the substantial support that the committee has otherwise received both from Ministers and departments. Members will find this a useful and interesting report to examine and I commend its recommendations to them.
Debate adjourned.
ABOLITION OF INDUSTRIAL TECHNOLOGY HIGHER SCHOOL CERTIFICATE SUBJECT
Matter of Public Importance
Mr J. J. AQUILINA (Riverstone) [3.18]: I move:
That this House notes as a matter of public importance the Government's abolition of the industrial technology higher school certificate subject from year 11 in 1994 onwards and the adverse consequences thereof.
The Fahey Government's education policies still bear the stench of Dr Terry Metherell. I was hoping, in the absence of the Minister for Industrial Relations and Employment, that the Premier might have been involved in this debate because he has a lot to answer for in relation to this matter. It is about time he took direct responsibility for specific issues affecting his Government. It is Terry Metherell's influence reaching out from the political grave that has caused the Government to abolish the industrial technology subject from the higher school certificate starting from year 11 in 1994.
Terry Metherell's 1989 curriculum document entitled "Excellence and Equity" still exercises a disproportionate and unhealthy sway over the policies of the Fahey Government. If it were not, we would ask the question: why then abolish this subject? That is a question that has been asked not only by me and some members of the Government, but by every industrial technology teacher in this State. I have not yet met one teacher of industrial technology, indeed, not one teacher anywhere in New South Wales, who has condoned this move.
The forces in play here have nothing to do with education, with vocational paths in our secondary school system or with giving school students a wider opportunity to study subjects that will provide them with a vocational path beyond school and beyond the Page 5559 narrow tertiary education that most students are guided towards. In 1989 the document "Excellence in Equity" targeted industrial technology for abolition; it is now happening. The subject's sin was its vocational orientation: it was too practical, too hands-on and too employment oriented. In its place will come a bold, new theoretical subject - design and technology - which will encompass industrial technology, home science, textile and design, agriculture and a host of other subjects.
Mr Fraser: What would you know about agriculture?
Mr J. J. AQUILINA: Precisely. If design and technology is approved, students will know very little about agriculture because the wider subject will incorporate agriculture to the detriment of its existing individual status. The honourable member for Coffs Harbour, as a National Party member and representative of a rural electorate, cannot tell me that he regards that as a good move. He would be denying students in schools at Coffs Harbour the opportunity to study agriculture as an entity in its own right. Agriculture study will be caught up with design and technology. The vision of smudging distinct subjects together under a single rubric has produced some of the Fahey Government's most flawed and ridiculous educational policymaking and a syllabus of meaningless generality. The design and technology syllabus is vague and ill-defined. For instance, at page 6 its aims state, "Students will develop skills in designing, producing, evaluating, researching, communicating and managing".
Mr O'Doherty: And you do not think that is important?
Mr J. J. AQUILINA: I agree with the honourable member for Ku-ring-gai. No doubt this is a fine list of skills, but without a specific context the skills have little meaning. That is where the subject is flawed. It could be included in the aims of any higher school certificate subject. By contrast, the previous industrial technology syllabus required specific skills, such as those referred to at page 4 of the syllabus: analysing electronic circuits, using testing equipment to diagnose faults, having a detailed knowledge of shaping, drape moulding, laminating, casting, jigs, chemical foaming, metal dip coding and extrusion of plastics, or developing a detailed understanding of automotive electricals, suspension, ignition and exhaust and being able to dismantle, tune and maintain a car engine. They are all practical skills, and I think it would be highly desirable that they be taught in a school attempting to teach students hands-on skills in a vocationally oriented subject.
It is obvious to anyone comparing the detailed content of the two syllabuses that one is generalised and theoretical while the other is practical and hands-on. Each has its place, and each will attract a particular student clientele. The subject content is completely different. To say that a student attending one course will end up with the same educational results as a student attempting the other course, is to live in educational fantasy land. I pre-empt precisely what the Government will say in response to this motion. It goes to show that Government members do not understand what the Board of Studies and the Minister are putting to them. Many backbenchers may well be concerned because of the revolution they will face from teachers as a result of this ill thought out procedure.
The design and technology syllabus loses all specific content in its search for an overarching generic subject description to cover a range of subjects about which it no longer wishes to be specific. Some designated outcomes of design and technology are so general and void of specific content that they could apply to any of the 70 subjects in the higher school certificate. For example, the skill contained on page 11 of the design and technology syllabus, "justify decisions made based on analysis of research", could apply to science, economics, Aboriginal studies, agriculture, geography, business studies, maths in practice, engineering science, personal development and physical education, sheep husbandry and travel.
The same comment can be made about the following design and technology outcomes, contained in the syllabus: at page 12, "investigate the structure and functioning of two contrasting organisations"; at page 9, "discuss the concepts of quality, innovation and creativity"; at page 12, "use a variety of audio, aural and visual forms to clarify and communicate design ideas"; at page 14, "appreciate the value of transferring knowledge and skills to new settings; value quality work; display a commitment to achieving established goals". Compare those vague generalisations with the detailed content of the industrial technology syllabus, which states at page 17:
Application, function and use of tuning equipment including - dwell; tachometer, timing light, voltmeter, ammeter, vacuum gauge, stroboscope, exhaust gas analyser and dynamometer.
The Government wants to abolish those technical vocationally oriented practical skills. Why is the Government so opposed to a detailed list of practical skills for students to acquire relevant to particular industries?
Mr O'Doherty: Yesterday's technology; yesterday's skills.
Mr J. J. AQUILINA: If the list of particular skills needs updating from time to time to reflect the changing pattern of industry, the Government should update it. They are not yesterday's skills at all. Subjects with specific skills can be aimed at specific technology. If in the eyes of Government members the current skills are outdated technology, update them, but do not abolish the subject.
Mr O'Doherty: That is exactly what we are doing.
Mr SPEAKER: Order! The honourable member for Ku-ring-gai will have his opportunity to speak later in the debate.
Page 5560
Mr J. J. AQUILINA: The Government should not abolish the capacity to provide hands-on skills. It certainly should not abandon this subject. The practitioners should make that judgment. It is again a situation where politicians who have no experience in the classroom are making the decisions on behalf of teachers instead of listening to the teachers and students. Students undertaking design and technology studies will go to prospective employers saying, "I don't know anything about stroboscopics, exhaust analysis or plastics extrusion".
Mr Schultz: So you admit it?
Mr J. J. AQUILINA: I admit it. I place a high value on the contribution of industrial technology to satisfying the needs of the individual and society, because that is the major objective of the design and technology course. The result of the policy will be a loss of practical work skills and a loss of technical expertise from high school students. Not only is the Government denying students the opportunity to learn practical skills; it is denying them choice. The Government has promoted the rhetoric of choice at every opportunity but, as most Government members will be aware from experiences in their electorates, it is nothing but a sham. Parents do not choose schools for their children; they can only choose a school where vacancies exist. How many schools in the electorates of Government members have sent out letters telling parents not to bother applying for out-of-area placements because the school is full? The myth of school choice and devolved decision making is again revealed with the abolition of industrial technology.
If a government really believed in devolution, it would allow the schools to decide whether they wished to teach the subject. The Fahey Government will allow schools to make only the most unpalatable decisions such as the cut-back on maintenance in order to pay for library books - in other words, the decisions the Government wants to avoid. It will not allow schools to decide whether to teach industrial technology. What is wrong with allowing both subjects to be offered? No one can answer that. The Government has never addressed this argument.
Why does the Government not adhere to its own policy of competition and allow students to vote with their feet? Let us see which subject attracts the most students. Why is the Government ignoring the evidence of enrolment trends? Since 1985 when the subject of industrial technology was introduced it has grown substantially and now represents almost 10 per cent of enrolments among almost 70 subjects. In 1985, 1,616 candidates were enrolled in this subject, and by 1993 that number was 5,493. These are the people this Government wants to admonish. These are the people who, as a result of this action, will be denied an opportunity for hands-on skills.
The higher school certificate candidature has increased by 65 per cent since 1985, but industrial technology candidature has increased by 240 per cent - that is, the industrial technology candidature is growing almost four times as fast as the higher school certificate candidature. That is a clear reflection of student confidence in the subject. It also reflects the increasing retention rates among students. In years past students would have left school and undertaken apprenticeships through TAFE. However, those students now stay on to complete the higher school certificate, and many of them choose industrial technology as one of their subjects. However, the Government would deny them the opportunity to continue this subject.
The Government's main argument for the abolition of the subject of industrial technology seems to be a misguided analysis of the gender equity issue. It is a clear fact that male students substantially outnumber female students when it comes to selecting this subject. Few people these days would argue that girls should not have the same educational and employment opportunities that boys have. Of course they should. It is the most flagrant of fallacies to suggest that girls gain opportunity by denying those opportunities to boys. Honourable members should face the fact that this is the real argument and the real reason that the Government is doing this. Someone high up in the Department of School Education has a hang-up about gender inequity when it comes to school subjects and is doing away with this industrial technology because a disproportionate number of girls and boys are taking the subject. They say they will even out the situation by abolishing the subject because it is popular with boys. That is a nonsensical approach and an approach that will fail. I have an example of where that approach has failed.
New South Wales is not the first to try these so-called innovative trends. They were tried in Britain and failed dismally. The British examples showed precisely how ill prepared school students were for vocational training introduced as a result of these changes. A report by Britain's National Institute of Economic and Social Research released in March revealed that woodwork, metalwork and home economics have become so intellectualised that they put off those pupils most likely to benefit from them. A Labor Government will reintroduce this syllabus. I make no bones about that: a Labor Government will let schools decide if they wish to offer industrial technology to students. If this motion is passed today, there will be the strongest of obligations on the Government to direct the Board of Studies to reintroduce the subject so that students can continue to study it next year.
Mr O'DOHERTY (Ku-ring-gai) [3.33]: I lead for the Government in the absence, due to illness, of the Minister for Industrial Relations and Employment, and as chairman of the government advisory committee on education. The House heard yesterday's Government, yesterday's man, with yesterday's ideas, yesterday's rhetoric and yesterday's arguments. What the honourable member for Riverstone said this afternoon is about as relevant as anything that was said yesterday. Design and technology is the course not just for today; it is the course for tomorrow. Industrial technology had its place yesterday. I am sure that the honourable Page 5561 member would acknowledge that times move on, things change, industry changes and society itself changes.
It was time for industrial technology to change out of its pupal state and become a butterfly - design and technology. The course retains all the practical considerations, all the hands-on experience and all the practical work of industrial technology but uses it in a more efficient and workplace-oriented way, a way that is oriented to the movements in society itself. This discussion is about the continual evolution of our society industrially. Industrial technology was a great course in its day. Of the seven electives that could be studied - and the honourable member referred to the broad range of areas that could be covered - most students enrolled in industrial technology studied woodwork. Of course, woodwork is an important skill, but these days it is becoming more and more a craft skill and less and less a vocational skill. Is it vocationally important to be able to turn out a beautifully carved table leg? It is important for a narrow band of vocations and, of course, it is important for the craft based vocations.
Of the students studying industrial technology under the old system, of all those options available to them, 69 per cent studied woodwork turning out beautifully table legs, chess sets and the like. Most of those students will not get jobs in craft based industries. Most of them will want to move on, for example, to the building trades. Most of them will want to move on to industry proper where they will be working with new technology, in a society that has new demands and no longer recognises those craft based skills as important in the emerging industrial technologies. Yet this course is held up by the honourable member for Riverstone as the be all and end all of courses, even though 69 per cent of the students enrolled in industrial technology studied woodwork. That narrows the field, narrows the band of skills available in society as we try to progress - and progress we are trying to do.
The development from industrial technology to design and technology courses is part of the progression of our society. As always, it is the Department of School Education that leads the way. Thankfully we have a Minister for Education who knows how to show the way, unlike members opposite who would have us back in the days before the Industrial Revolution, learning craft skills. If it was up to the honourable member for Riverstone and his team, we would be in the pre-Industrial Revolution days with people learning how to whittle on the verandah, knit in the backroom, and make papier mâché animals to sell to the tourists that pass by. It is time to leave those days behind. The Industrial Revolution was a long time ago. Members opposite may have noticed that we have moved on to another industrial revolution, to computerisation, and on to miniaturisation. At each of the steps along the way society's expectation of what technology can deliver changed. Design and technology is a new course as part of the new reality, as society moves forward. It incorporates those ideas in the context of a society that wants to move forward.
What does this course of design and technology have as subjects? It has the practical skills that are necessary for people to understand materials; how they work and how they relate to each other; and how to bend, manipulate and manufacture materials to achieve a result. That is an important part of the course, and there is as much practical work in this course as there was in the old course. Additionally, it has a flexible structure that encourages and develops in the students an understanding of production, marketing and management. What better thing can we do for our young people than to give them not just knowledge of materials and how to work them, but also knowledge of how to apply them in a way that is relevant to having a job and making a living? These days people need flexible skills, and it is not just good enough to be able to machine something. It will not be enough for a student to maintain a job tomorrow when he leaves school; he must maintain it for the years and decades ahead.
Students in the design and technology course study production techniques, marketing techniques and management techniques. The course gives them the basis of a career, not just a job. That is what design and technology is partly about - giving students the basis for a career and not just a job. But it is broader than that. It looks at important questions about influences in our society that actually shape technology. That is where the honourable member for Riverstone badly fails to understand where we are going. He seriously fails to understand what students need these days and what our society needs these days.
As I have said many times, it is not enough to know how to work a material, it is not enough to know how to produce, market and manage it, but that is an improvement. The third strand of design technology that is important, and which is not being recognised by the honourable member opposite, is that the course also encourages students to think about the way that the influences of our society are shaping technology. I should like to think that in doing so, they also think about the way our technology, in turn, shapes our society. Surely that is a very important message that we need bear in mind continually as we reassess exactly where we are going. We do not want to turn out people who are just like machines. Those really were the days of the Industrial Revolution, when we were preparing people to work on machines, and the honourable member for Riverstone knows it.
It is no longer good enough to prepare people to sit by a machine and mill a piece of metal. That is not what it is all about. It is about turning out people with skills to be able to develop for themselves and their society something that is better, something that is different; thinking people; people who are able to make the quantum leaps that make our society great in a technology sense; people who are able to take those ideas, market them and produce something that is valuable not just for their society, but for themselves and their families; enterprising people; people who have drive; people with initiative. The Government is assisting that process by giving them, way back in Page 5562 years 11 and 12, the thinking skills as well as the technical skills they need. That is why design and technology is such an important development on what we had.
These underlying principles of society have to be developed and discussed by each of us. Industrial technology was a craft-based subject. Design and technology is a thinking person's subject. It is a subject that helps our technology move forward. The honourable member raises a number of other shibboleths that have to be dealt with this afternoon. One of his main points was the abolition of industrial technology. Industrial technology has not been abolished, it has been enhanced. It has become design and technology, retaining the best of the old, but developing for the new. He said that no one condones this. Pupils will benefit from it and they will be voting with their feet on these relevant subjects.
Teachers will find that they will no longer be narrow cast. Many more teachers will be able to teach in one of the key learning areas of design and technology than ever before. Teachers will be multiskilled, and it is probably true to say that the agenda of the honourable member for Riverstone is being driven by teachers in the system who are uncertain about their future. I think everyone can understand that. It is a fairly natural human reaction to change. But they will see, as will the honourable member for Riverstone, that the design and technology course is as good for the teachers as it is for the students. After all, it is not good enough to lob into the system a teacher with some teaching skills and some craft-based skills, someone from industry or wherever and say, "Now you are a woodwork teacher and you will be a woodwork teacher for the rest of your life", or "You are a home economics teacher and that is all you are going to do".
Teachers want progression in their lives. They want to see that what they are providing for the children in their care is relevant to those children and the society around them. What worse feeling could a teacher have than to know the subject he was teaching was becoming increasingly irrelevant to the society around him? The stress of that, I imagine, after 10, 15 or 20 years of teaching, would be even greater than the stress involved in being able to change. With the professional development that will commence in December, teachers in the system will become multiskilled, they will have more relevant skills to pass on to the children and they will be able teach across areas they have never taught in before. The honourable member for Riverstone should be helping to spread that message rather than reinforcing mistrust and misunderstanding in the system.
The honourable member thought that there was some sort of intention to incorporate agriculture in this course and not teach it separately. It is quite clear from "Excellence in Equity", the important document on which this change is built, that there is no intention to do that. The honourable member for Riverstone should think twice before he throws around those sorts of comments. He will frighten the natives; he will frighten the animals. There is absolutely no intention to do that. Some of the other speakers who will follow me will touch on that again.
The third shibboleth that needs putting down is the statement of the honourable member for Riverstone that design and technology is theoretical, vague, and has been implemented with no concern for teachers, no staff development and no training. Design and technology is not a theoretical subject. As I have already mentioned, a large component of the course involves a major project. In that respect it is just the same as the industrial technology subject that the honourable member for Riverstone rates so highly. The major project is relevant, once again, to the reality of today's workplace. It does not relate to turning out just one piece of work in one subject area but to turning out a piece of work, a project, a system, or investigating an environment in a way that brings together skills from many areas and incorporates all the aspects of design and technology. It does not have a narrow industrial focus, as the honourable member for Riverstone said. It will bring together all the skills that will be important to students when they leave school.
From that point of view, design and technology is not only theoretical; it is also practical. Even the written aspects - 40 per cent of the final mark - have a practical application for the students who are learning and studying for those written papers. The course is practical from start to finish. It is patently ridiculous to suggest that the syllabus was designed without regard to teachers. Teachers are concerned and they have been involved in the process at every turn. In fact, within 12 months the course will be evaluated, and any concerns will be factored into the redesign of the course because the Government is about evolving courses; it is not about being stuck in the past.
Generic skills are covered in design and technology that are also covered in other areas. The honourable member for Riverstone mentioned that that was a problem with design and technology, but it is not a problem; it is a strength. Should we not be teaching children the same sorts of things in many different subjects in many different ways? Are we not trying to teach them values and skills and a belief in themselves and their society across a range of subject areas? I do not understand how the honourable member for Riverstone can say that that is a weakness in some way. It is, in fact, a strength.
As I said from the start, the honourable member for Riverstone has brought here today the idea of yesterday's man, in yesterday's government, teaching yesterday's skills to yesterday's generation. But the Government, and the Minister for Education, Training and Youth Affairs in particular, is leading the way in tomorrow's ideas for tomorrow's generation in the ways that are relevant to tomorrow, the ways that are important to the children who leave school this week and want to get a job in years to come, not just for next year, but for the year after that and the year after Page 5563 that; for a society that wants to develop, not be stuck back in either the Industrial Revolution or, heaven forbid, the pre-Industrial Revolution days where the honourable member for Riverstone would have us stay. He brings this matter up today simply as a delaying tactic and, for that alone, the whole process needs to be condemned.
Mr J. H. MURRAY (Drummoyne) [3.48]: At a time when industry is demanding competencies in all the skills offered in the current technology course, it is abysmal that the Government should consider scrapping the industrial technology course and replacing it with a course that is basically a design-type curriculum course that is covered in a multiplicity of other courses offered to high school students. It would be a disaster if the current course were destroyed. As honourable members know, it is the second fastest growing higher school certificate course of the decade. The honourable member for Ku-ring-gai quoted some figures, but he did not say that it is a growth course area. Anyone who has ever been to a high school would have seen the number of students attending the course. When I went to school one never saw a girl in an industrial technology class, but time after time Government publications contain photographs of girls attending engineering courses. Last week a newspaper reported that the majority of engineers graduating in chemical engineering at the University of New South Wales are females.
If this course is destroyed, kindergarten, which provides an incentive for children to embark on higher education and undertake courses for professions such as engineering, will be destroyed. Since the Metherell era we have seen changes to the education system in New South Wales that parallel the discredited education system introduced by Thatcher in England. Many of the Thatcher-style changes that were introduced by Metherell will again be changed, with one exception. In the field of technology Thatcher's ideas are still being implemented. It is interesting to note what people in Britain think of their education system. I read from an article in an August edition of the Daily Mirror:
Thousands of pupils are being deprived of a chance to learn engineering, metal work and woodwork.
[Interruption]
Do Government members want to learn something from other people's mistakes? This is a mistake that the British made. This Government is perpetuating those mistakes. The Daily Mirror article continues:
The report by the National Institute of Economic and Social Research due out in autumn blames the Government's new curriculum. It warns that schools will no longer produce youngsters capable of using a lathe or a drill and that British industry will suffer. Craft schools are being squeezed out in favour of the more theoretical design courses.
That is exactly what the Government is doing in New South Wales. The British people are saying "We have been through it. It does not work. We want to scrap it". This Government is trying to adopt the same discredited scheme. I give the honourable member for Ku-ring-gai his dues; he does have some grey matter. But not everyone who goes to school is bright. When the honourable member for Ku-ring-gai went to school 50 per cent of children obtained the higher school certificate. The retention rate for schoolchildren now is about 90 per cent. So a lot of former pupils who did not obtain the higher school certificate will need to attend special courses. The theoretical courses that are being provided at present have no substance. They create chaos in the classrooms because they do not have curriculum back-up for year 11 and year 12 students. [Time expired.]
Mr RIXON (Lismore) [3.53]: I have a lot of sympathy for the honourable member for Drummoyne and the honourable member for Riverstone. It appears that they went to school in the old days, when schools had either academic or practical courses. They must have gone through school during the 1940s or 1950s when English, French, Latin, mathematics I, mathematics II, physics, chemistry and history were taught, but not practical subjects. If they did not attend the courses to which I have referred they probably attended practical commercial courses such as home economics, woodwork or metalwork courses. They probably remember that, back in those days, the following subjects were taught: technical drawing, cooking, sewing, woodwork, metalwork, food technology, home economics and industrial arts.
As time went on other subjects, such as industrial technology, wood technology and metal technology were introduced. Other subjects included fabric studies, material science, plastics and leatherwork. Perhaps those honourable members even completed courses in farm mechanics or agricultural science. Students undertook a combination of many of those courses. Some students who completed their courses were very good at using a hammer and saw. After all, we judge our students by their final products. I, like many other parents who have students at school, am concerned about where they are going. I want to ensure that my children have a practical education but they should also be encouraged to undertake design work. They should be taught how to read a design, how to create a design and how to create works of art. We will know that our students are successful when they produce quality products in years 11 and 12.
At the weekend I had the pleasure of attending the unveiling of a cabinet designed by Jeff Hannah. The cabinet, which was unveiled by Mrs Hayden, was designed by an artist - a person who knew how to use tools, how to create and design a concept and how to put it together. Jeff Hannah created a cabinet that is worth a conservative half a million dollars. In the near future that cabinet will be housed in the State Library. With modern education, students from kindergarten to years 11 and 12 will be able to design and produce things such as wool presses, wind sails for roller blades, musical instruments - violins or electric guitars with all the computer work built into them - or they will be able to restore motor cars or Page 5564 design and build new engines. They will learn how to design, develop and construct the lighting and sound effects for discotheques. They will be able to learn all that is involved in producing cattle and sheep and developing plant breeding programs, matters which are dear to my heart.
With the provision of all these courses students will be able to develop their talents. Education is all about practical design and development. It is obvious that the Opposition members to whom I referred earlier attended school in the 1940s. I did not realise that the honourable member for Drummoyne was as old as that, but he must be because those are the sorts of courses which were taught in the late 1940s and early 1950s. The education system in New South Wales will produce students with the skills that they need to manage businesses, to work in businesses, and to live in a modern, technological age. Labor will not be able to introduce any additional courses as they have already been implemented. [Time expired.]
Mr WINDSOR (Tamworth) [3.58]: This matter has caused public concern, particularly in country areas in New South Wales. The honourable member for Ku-ring-gai said earlier that the honourable member for Riverstone introduced this matter of public importance for political purposes. That is not the case. He introduced this matter of public importance to highlight this issue of concern to the community. I am not opposed to the new design and technology course, but I believe there is a degree of concern about the removal of the higher school certificate industrial technology course. I urge the Government to reconsider its decision and, if at all possible, to run both courses for a period to determine how best to solve this problem.
A number of children in the school system require a more practically based learning course, which is provided by the industrial technology course. Some may argue that these children should be taken up by the TAFE system; however, I believe the education system should provide this more practical course. I have had meetings with various teachers throughout my electorate, with parents and some students who have studied the course, and with some who have also been involved in TAFE courses. I do not pretend, as do others in this place, to be the holder of all knowledge, but I am obliged as a local member to bring to the attention of the Parliament, the Minister and the Board of Studies that all is not Fleet Street and that many people are concerned. I raise this issue as one who is generally supportive of the Department of School Education and of the Government's policy on education.
I take this opportunity to congratulate the Assistant Director General of Education, Mr Frank Fisher, who resides in Tamworth, on the excellent job he and his cluster directors have done. I am not attacking the Government on a philosophical basis, but not enough thought has gone into this change. If this decision has been made because of a gender imbalance perceived by some people on the Board of Studies, rather than a practical education issue, the Minister should look closely at what is being done. The honourable member for Ku-ring-gai mentioned in his speech that there have been changes in society, I think implying that the honourable member for Riverstone is living in the past. I believe many students would prefer to move beyond the industrial technology course, and the new course will provide that avenue.
A proper education system also provides for those who want a more practical application. Many children will move into areas of agriculture, where they will not require the skills of design and technology, and they may not have the intellectual ability to acquire the broad skills involved in design and technology. Those children will still require the more practical course of industrial technology. I urge the Parliament to consider this question and I urge the Minister and the Board of Studies to reconsider. Perhaps they could talk to people in country New South Wales about what the change means to them. Sufficient staff are available to run both courses, which would provide the best of both worlds, without any additional funding necessary for the education budget.
Mr FRASER (Coffs Harbour) [4.3]: The first part of the motion moved by the honourable member for Riverstone is:
That this House notes as a matter of public importance the Government's abolition of the industrial technology higher school certificate subject for year 11 for 1994 onwards -
I agree with that part of the motion, because it is a matter of public importance. I do not agree with the last five words:
- and the adverse consequences thereof".
There are no adverse consequences. The troglodyte Labor Party members fail to recognise that in these days of technology, with employers insisting on employees with greater knowledge and a greater skill base, relevant educational courses must be provided. It is not sufficient education to teach children how to make a box out of five pieces of timber. They need to be trained to design items and products and test whether they will work - to develop the practical knowledge and skills to produce a finished product. When those children later enter an industry they will have the knowledge and the skills from the ground up, having been taught from kindergarten to years 11 and 12. The education process will have a much broader base and will encourage children to be creative.
The honourable member for Riverstone made a remark about agriculture. Members opposite know nothing about agriculture or the way it should work. It is insulting to say some country children need a higher education to run successful businesses on farms. Over the years they have been practising skills in breeding techniques, cropping techniques, etcetera. They will now be given a formal base from which to work in the area of agriculture. For example, they may taken an opportunity to study a cattle breeding program, which would result in high yields and greater productivity. The Federal Labor Government Page 5565 tells us that the agricultural community - the most efficient industrial community in Australia - needs to be more efficient.
The new system will provide an opportunity for children who want to attain the higher school certificate and leave school with a basic knowledge of breeding programs, biological programs - knowledge that they can use in practical experiences on their own properties to increase efficiency and productivity. The basic skills of children living on farms will be polished, and those children will have the opportunity to employ their skills to make their businesses more economically efficient by producing even high yields. The honourable member for Riverstone said that children will be ill-prepared in vocational skills. The exact opposite is true.
Industry is demanding greater skills, it is demanding that students know more about an industry before they enter it. A private firm has installed computerised lathes at Bellingen High School. Through a system of design technology, the students have produced magnificent pieces of engineering work. The lathes will give the students an opportunity to design and make a product and enter it in competitions. Under this system of education the students understand what they are doing, why they are doing it and are allowed to use their practical skills to produce items of great value and items of which they can be proud. At present 450 teachers have been trained in design and technology under a course of training the trainer. Teachers can use their skills and can teach other teachers. This Opposition motion is a push from the Teachers Federation. Concerns have been expressed, but we are doing what the market requires, and what education deserves in New South Wales.
Mr J. J. AQUILINA (Riverstone) [4.8], in reply: I thank all honourable members who contributed to this debate. I particularly thank the honourable member for Drummoyne for his worthwhile and practical contribution - spoken like a practitioner, a person who knows something about schools, classrooms and education. He is a practitioner; he has been in a classroom with students, and he knows the practical experiences of a teacher. I compliment also the honourable member for Tamworth, who spoke in a practical, down-to-earth and commonsense way. He hit precisely on the issue: there is no question of doing away with the subject of design and technology; that is not what the motion refers to. In my opening remarks I said that I welcomed the introduction of the subject design and technology. The issue raised in the motion is why it is necessary to do away with the subject of industrial technology. Why not allow the two subjects to coexist? That is what many teachers, parents and students in the State's schools cannot understand.
The honourable member for Coffs Harbour raised a number of general issues, but he failed to understand the gravamen of the motion. He does not know what is involved with the new subject or what must be taught in the industrial technology course. He reiterated the comment of the honourable member for Ku-ring-gai that in a sense the hands-on practical experiences will remain in the design and technology subject. That demonstrated that neither of those honourable members has read the syllabus or understands it. If they did understand, they would have no argument with my proposal. Why would so many teachers be upset about the design and technology course if hands-on practical experience was to be maintained in the design and technology subject?
Worse than that, not only is there no facility for hands-on practical experience to be maintained in the design and technology course, but the new subject is so loaded with theory and conceptualisation that even if the subject maintained a practical component there would not be time for that component to be used in the teaching of the subject. That practical consideration has been raised by teachers, in the very best interests of their students. An enormous amount of time must be devoted to concept, design and the theoretical aspects of design and technology, and therefore insufficient time will be available to devote to giving students hands-on experience of the subject.
I compliment the honourable member for Drummoyne and the honourable member for Tamworth on their contributions. Many of the submissions made by Government members revealed that they have their heads in the clouds and that their feet are nowhere near the ground when it comes to the reality of what happens at schools. The Government is making the same mistake as it has made many times in the past four to five years in regard to so-called educational reform; it is bringing in theoretical ideas proposed by people outside the classroom without practical consultation with and input from the teachers. I become very upset about this issue. Time and again the Minister, through the media, tells the world that the Government highly respects the professionalism of our teachers. But the actions of the Government belie her statements.
The teachers are the last ones to be consulted about or to hear of proposed changes. This is another instance of the genuine concerns of teachers being dismissed by the Government as being some kind of Teachers Federation ruse. I have not spoken to members of the Teachers Federation about this issue; at no time has the Teachers Federation raised it with me. I have spoken to teachers and to masters at various schools, and they are extremely concerned about the proposed change. It is not good enough for the honourable member for Ku-ring-gai to say that woodwork is a craft skill, not a vocational skill and that the Government is about the future and not about the past. To be truly cognisant of the vocational skills that will be required in the future, one needs to have an understanding and appreciation of the craft skills required to provide those future vocational skills.
There is not much point in being able to design a method for making something if one does not have the practical experience of how to put it together. In this regard I refer to the experience in the United Page 5566 Kingdom, on which I commented briefly in my earlier remarks. I should give precise details of the experience in the United Kingdom. Britain's National Institute of Economic and Social Research released a report in March this year. It is not an outdated document but is current and relevant. The report found as follows:
. . . woodwork, metalwork and home economics had become so intellectualised that they put off the pupils most likely to benefit from them . . . Instead of teaching basic skills, schools were emphasising imagination and grandiose design, with the result that pupils' work fell short of European standards and failed to prepare British students for vocational training.
That quotation is taken from the United Kingdom Daily Telegraph of 22nd March. According to the report:
Typical examples of pupils' work included crudely decorated cardboard boxes, a wooden train that fell to pieces when moved and an electric table lamp that had no wires . . . In Continental Europe home economics classes, pupils prepared meals following recipes with the help of the teacher. Afterwards they served and ate the meal they had cooked.
That has been the practical experience in many of their schools since these subjects were introduced. The report continued:
British pupils drew maps of the world showing where rice and wheat grew and wrote essays on convenience food.
Mr Hartcher: That gives them an understanding of world distribution of food resources.
Mr J. J. AQUILINA: That is the change that is being contemplated in the subject of design and technology, which is getting away from the practical experience and changing it to a theoretical base. The Minister interjected to say that it gives students an understanding of world distribution of food resources. I agree wholeheartedly with that comment. That has a place in our schools, but why should it have that place at the expense of the hands-on practical skills required and urgently sought by many students? I repeat the point that was made by the honourable member for Drummoyne, that this is the second most popular subject in the higher school certificate curriculum. The increase in interest in the subject has been astronomical. When it was introduced in 1985 the number of students undertaking the course was 1,616 and that has steadily grown to 4,284 in 1989 and this year's candidature is 5,495 - almost 10 per cent of the candidature for the higher school certificate.
Students are voting for this subject with their feet. It was ill-informed of the honourable member for Lismore to say that this motion dealt with Industrial Revolution times, that it was about the past. The honourable member for Ku-ring-gai said that Opposition members were yesterday's people because they were advocating hands-on experience. It is not yesterday's students who are coming forward in increasing proportions seeking to do this subject. The honourable member for Ku-ring-gai and other Government members should realise that industrial technology is not a subject from the Industrial Revolution. It was introduced in 1985, barely a decade ago. It is a relevant and current subject and one that is equipping students for the future. By all means let design and technology be introduced - but not at the expense of industrial technology. Give students in our schools, through hands-on practical experience, the capacity and opportunity to use their skills.
Motion agreed to.
LIMITATION OF ACTIONS (RECOVERY OF IMPOSTS) AMENDMENT BILL
Bill introduced and read a first time.
Second Reading
Mr WEST (Orange - Minister for Energy, and Minister for Local Government and Co-operatives), on behalf of Mr Collins [4.19]: I move:
That this bill be now read a second time.
The main purpose of the Limitation of Actions (Recovery of Imposts) Amendment Bill is to amend existing statutory and common law rights of recovery by taxpayers in the event of a court invalidating or changing the interpretation of the law, so as to protect the State from having to make large, unforeseen refunds of tax validly collected before the court decision. Honourable members may have noticed the comments recently attributed to the Chief Justice of the High Court of Australia, Sir Anthony Mason, on the role of judges. Sir Anthony Mason said:
It is scarcely to be credited that anyone with any understanding of the judicial process now believes the fairy tale that judges "discover" the law and then declare it, without actually making it, as though the judges resembled the delphic oracle revealing the intention of the pagan Gods.
Judge-made changes to the law are a fact of life. The Government does not take issue with that. It is, however, the responsibility of government to ensure that there is no undue burden on the public purse as a consequence of such changes. A particular need for this legislation has arisen as a result of a High Court appeal in Capital Duplicators v. Australian Capital Territory against a backdated licensing scheme in the Act involving X-rated videos.
The Australian Capital Territory licensing scheme is similar to the backdated licensing or business franchise schemes operated by the State and Territories in respect of tobacco, petroleum products and liquor. Those schemes involve the imposition of a licence fee calculated by reference to produce sales effected in some period before the fee falls due. They enjoy the approval of a number of High Court cases following on the Dennis Hotels case in 1960. The High Court heard argument in the case in April and a decision is pending. The essence of the matter now before the High Court is that backdating schemes may not be an effective way around section 90 of the Commonwealth Constitution, which gives the Commonwealth a monopoly on excise duties.
Page 5567
An adverse decision in Capital Duplicators v. Australia Capital Territory would put at risk annual New South Wales revenues from tobacco, petroleum products and liquor licence fees. In New South Wales such licence fees will raise an estimated $1.389 billion in 1993-94, or 15 per cent of total revenue from State taxes, fees and fines, and 7.5 per cent of total receipts from all sources. The States and Territories collectively raise approximately $3.8 billion per annum from such licensing schemes. The decision may also have implications for other State taxes and charges.
In addition to the prospective loss of revenue, even larger amounts are at risk if the High Court were to retrospectively overrule the decision in the Dennis Hotels case. The amount potentially at risk of having to be refunded has been substantially increased by recent court decisions on refunds of payment made due to a mistake of law. In a 1992 case, David Securities Pty Limited v. The Commonwealth, the High Court held that there was no common law rule operating in Australian law to preclude the recovery of moneys paid under a mistake of law. The result is that there is no prima facie rule to prevent recovery of licence fees previously paid if the High Court were to overturn the decision in the Dennis Hotels case. In the Capital Duplicators case, the New South Wales Solicitor-General argued, on behalf of the States, that if the High Court decides to overrule the Dennis Hotels decision, it should do so prospectively. If the High Court does not accept this argument, the States will have to rely on Commonwealth and State safety net legislation to limit the threat posed to State finances should it become necessary to make large refunds of licence fees. In argument before the High Court the Commonwealth Solicitor-General stated:
The Commonwealth has indicated to South Australia and has indicated generally to the States that it is prepared, in the event that Dennis Hotels were to be overruled, to impose at a uniform rate Dennis Hotels-type imposts in respect of existing . . . imposts [of this type] and to distribute the amounts so collected to the States.
The Commonwealth Solicitor-General also advised the court of:
. . . the Commonwealth's acceptance that it is prepared to take immediate action to protect existing revenue bases of the States which may be affected by an overruling of Dennis Hotels.
Commonwealth and State officials have been working together to prepare a package of Commonwealth legislative measures to protect State licence fee revenues already collected. Work is also proceeding on uniform imposts under Commonwealth legislation, which can be introduced quickly to replace the revenue currently generated by State licence fees if such measures are required. However, at this stage the Commonwealth has not informed the States of the detail of the proposed safety net arrangements. The bill represents as good a safety net as the State is unilaterally able to provide in relation to claims for refunds of taxes and fees, and will complement measures that the States have requested the Commonwealth to introduce. The Limitation of Actions (Recovery of Imposts) Amendment Bill applies the limitation period to all State taxes, including fees, charges or other imposts, notwithstanding any other legislation.
The amendment bill imposes an additional requirement that the claimant for a refund must prove that the tax has not been passed on either directly or indirectly. It would be manifestly unjust to allow a business to recover from the State taxes which it had passed on. It also provides that an impost is not recoverable if the invalidity of the impost arose from a change in the law or legal principles, such as might occur as a result of a court decision. This is the field of judge-made law to which I referred earlier. I commend the bill and, for the assistance of honourable members, I table a summary of its provisions.
Debate adjourned on motion by Dr Refshauge.
CHOICE OF LAW (LIMITATION PERIODS) BILL
LIMITATION (AMENDMENT) BILL
Bills introduced and read a first time.
Second Reading
Mr WEST (Orange - Minister for Energy, and Minister for Local Government and Co-operatives), on behalf of Mr Collins [4.27]: I move:
That these bills be now read a second time.
The background to the bills is as follows. Choice of law rules are the legal rules which determine what law should be applied when a factual situation is linked to more than one legal system. Honourable members will appreciate that each State and Territory has its own system of laws to deal with many contingencies in everyday life. Those systems of law might compete with each other in different ways. For instance, a contract may be made in Queensland, but is to be performed in New South Wales; a motor accident may happen in South Australia but a car and or a driver come from a different State; or a tax may be imposed by New South Wales law, but the taxpayer may be situated in another State.
On 19th December, 1992, the full bench of the High Court of Australia delivered judgment in W. T. McKain v. R. W. Miller and Company (South Australia) Pty Limited. One of the questions raised by those proceedings was the appropriate characterisation within an Australian or Australasian context of limitation provisions for choice of law purposes. If limitation statutes are characterised as procedural, the court in which the case is prosecuted will not apply the limitation provisions of another place but will impose its limitation provisions, regardless of whether its law governs the substantive issues between the parties. This obviously encourages forum shopping by plaintiffs whose actions are out of time in one jurisdiction in favour of forums offering more generous limitation periods.
Page 5568
If, on the other hand, limitation statutes are characterised as substantive for choice of law purposes, plaintiffs will gain no advantage by shopping elsewhere. In McKain v. Miller the High Court, by a four-three majority joint judgment, held that limitation statutes should be characterised as procedural. The effect of the decision was that no single law would apply to a particular set of circumstances. The principles on which it was based were strongly criticised by the Australian Law Reform Commission in its discussion paper No. 44 of July 1990 entitled "Choice of Law Rules". That paper stated, at page 53, that the rule that limitation periods be treated as procedural for choice of law purposes has proved to be a source of dispute and uncertainty among judges and commentators. The commission rejected the rule and canvassed alternatives.
The Australian Law Reform Commission released its final report on choice of law, No. 58, in March 1992 and in chapter 10 of that report elaborated upon some of the disadvantages of the current law. First, on a policy level, the commission considered the major objection to the classification of limitation periods as procedural to be that the purpose of the law of the place establishing the cause of action may be thwarted. So, for example, the rule could operate to bar a claim that could still be actionable in the place in which it arose. Conversely, the commission noted that it can frustrate the purpose of the jurisdiction establishing the cause of action by keeping alive claims that its Legislature would wish to be treated as stale.
The commission considered that both parties to an action should be able to act on the assumption that a particular incident is determined by the law which governs its substance. Otherwise, of course, both must keep track of the laws of any other place which might be able to assume jurisdiction over a claim because of some connection with it. The commission proposed that if the Legislature of one of those other places has prescribed a particular limit, the principle of comity requires that it should be applied in preference to the law of the place in which the matter is prosecuted.
Again on a policy level, the commission noted that it had become clear from a number of recent High Court decisions that the practice of forum shopping is to be discouraged. It proceeded to note in that connection that there can be no more fertile field for a forum shopper than States and Territories with different limitation periods. If limitation periods are regarded as procedural, they are necessarily brought within the law of the jurisdiction in which the action is pursued. If that forum allows a litigant a longer time in which to bring an action, there will be a significant advantage in bringing the action in that forum with the effect that the object and purpose of the jurisdiction in which the cause of action arises is defeated.
Not surprisingly, the commission recommended that limitation periods should be treated as matters of substance. At the July 1992 meeting of the Standing Committee of Attorneys-General, Ministers asked the Special Committee of Solicitors-General to report on what action should be taken to resolve the difficulties created by the High Court decision in McKain v. Miller. In its report, the special committee unanimously recommended adoption of the recommendations of the Australian Law Reform Commission. Standing committee Ministers adopted that recommendation and model legislation was prepared. The Choice of Law (Limitation Periods) Bill conforms to those model provisions. The Limitation (Amendment) Bill is declaratory of the result sought to be achieved and will operate to supplement the Choice of Law (Limitation Periods) Bill, pending enactment of corresponding legislation in other States and Territories.
The bills will, amongst other things, ensure that the Limitation of Actions (Recovery of Imposts) Bill and similar limitation legislation enacted by other States and Territories will be effective. The effect of the Choice of Law (Limitation Periods) Bill is that even if proceedings challenging taxes paid in other jurisdictions are pursued through New South Wales courts, the limitation periods imposed by the taxing State will apply. Equally, under the Limitation (Amendment) Bill, courts in other jurisdictions hearing actions for the recovery of taxes paid pursuant to any invalid New South Wales legislation will be obliged to observe the limitation periods applied in this State.
The operation of these associated bills goes, of course, far beyond actions for the recovery of taxes imposed under legislation that might be found to be invalid. It is, however, in that context that the measures are currently in focus. In short, the Choice of Law (Limitation Periods) Bill deals with the problems identified as a result of the 1991 High Court decision in McKain v. Miller. The bill seeks to recognise the law of a jurisdiction dealing with limitation periods as part of the substantive law of that jurisdiction. The result will be to curtail forum shopping. The Limitation (Amendment) Bill provides that New South Wales laws relating to New South Wales limitation periods form part of the substantive law of this State, thus complementing the measures in the Choice of Law (Limitation Periods) Bill. I commend the bills. For the assistance of honourable members, I table a summary of their provisions.
Debate adjourned on motion by Dr Refshauge.
TRADE MEASUREMENT (AMENDMENT) BILL
Bill introduced and read a first time.
Second Reading
Mr WEST (Orange - Minister for Energy, and Minister for Local Government and Co-operatives), on behalf of Ms Machin [4.35]: I move:
That this bill be now read a second time.
The Commonwealth, State and Territory governments have agreed that there should be uniform trade measurement laws in order to promote commercial Page 5569 certainty and bring about a reduction in business costs and greater efficiency in the trade measurement industry that services the market-place. The Trade Measurement Act 1989 commenced in New South Wales on 1st July, 1991, as part of the scheme for uniform trade measurement legislation. Section 6(3) of the Trade Measurement Act 1989 explicitly exempts bread from the ambit of the legislation. Bread was excluded from the operation of the uniform trade measurement legislation because State and Territory trade measurement authorities were unable to agree upon the appropriate mechanism for determining bread weight. Industry was also divided on this issue.
In the absence of uniform standards, State and Territory jurisdictions have been forced to introduce or retain specific bread legislation. Presently, part V of the Bread Act 1969 and the Bread (Weights) Regulation 1977 prescribed the weights and measures requirements for the baking and sale of bread in New South Wales. The Act provides that packed and unpacked bread be baked in standard loaf sizes prescribed under the regulations. The regulation establishes a range of loaf sizes for which bread must be baked. The regulation also requires packed and unpacked bread to be marked with its nominal weight and carry a range of descriptive markings.
The bread requirements in each jurisdiction are currently not uniform. This means that bakers have been subjected to a system where requirements for the marking of bread and size of loaves vary markedly from jurisdiction to jurisdiction. This imposed unwarranted production and administrative costs on industry. National bakers are currently required to have different packages and different moulds for each jurisdiction. This situation also adds to the costs of conducting training programs for staff. Mutual recognition has assisted bakeries which produce bread in only one State for sale in another State, but has not assisted the national bakeries that produce bread in a number of States.
The Ministerial Council for Consumer Affairs resolved at its meeting of 30th July that bread should be regulated under the uniform trade measurement legislation. The implication of this resolution is that all States will repeal their respective bread legislation and provisions exempting bread from the uniform legislation will be deleted. Clause 3 of the bill gives effect to the schedule of amendments to the Trade Measurement Act 1989 encapsulated in schedule 1. Schedule 1 repeals section 6(3) of the Trade Measurement Act 1989. Schedule 1 also inserts a savings and transitional provision which ensures that bread packed before, but sold after, the commencement of this bill does not have to comply with the new requirements.
Clause 4 gives effect to the schedule of amendments to the Bread Act 1969 contained in schedule 2. The most important features of the amendment in schedule 2 are the repeal of part V of the Bread Act, which relates to bread weights and the removal of any powers granted to weights and measures inspectors under section 24. These powers are unnecessary as the requisite inspectorial powers are provided under the Trade Measurement Act. Clause 5 will repeal the Bread (Weights) Regulation 1977.
The overall effect of these amendments will be to make bread subject to the provisions of the uniform trade measurement legislation and remove any specific State legislation appertaining to bread. The legislation will require bread to carry a weight marking and there will be no standard loaf sizes. In essence, these amendments intend bread to be regulated in the same way as other products. That is, if packed, bread will require an actual weight marking rather than the current requirement for nominal weight. In a nominal weight system, the dry matter of the bread must represent 60 per cent of the nominal weight marked on the loaf. Nominal weight does not represent the actual weight of the loaf.
Unpacked bread will be deregulated unless it is sold by reference to weight. In this case, the price will need to correspond with the true measurement. It is unlikely that bread rolls will be regulated. First, bread rolls are usually sold unpacked; and second, the Trade Measurement (Pre-packed Articles) Regulation 1991 excludes products which are ordinarily sold by number and are packed in a transparent package. This exemption would normally apply to bread rolls. The proposed amendments will benefit business and consumers. The most important benefit for industry is that uniform standards will apply.
Small business will be assisted by the reduced regulatory controls: no standard package sizes will permit greater flexibility and provide incentive for better product innovation. Because the small baker is the primary producer of unpacked bread, small business will gain from the deregulation of unpacked loaves. The net weight marking on bread will provide the consumer with an accurate description of the weight of the bread. The nominal weight marking that currently applies gives no real indication of what is being purchased. I commend the bill.
Debate adjourned on motion by Mr Amery.
HEALTH CARE COMPLAINTS BILL
In Committee
Consideration resumed from 16th November.
Clause 4
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [4.42]: I move:
Page 4, clause 4. After line 17, insert:
"Independent Review Panel" means an Independent Review Panel constituted under Part 6;
This is probably one of the most important amendments that will be moved today. There is certainly a whole range of issues that come up before the Independent Review Panel. It is appropriate at the outset to debate that matter because its effects may Page 5570 impact on other clauses. I am sure the Minister would agree that it is probably better to debate that issue once and not every time an amendment is moved. The issue really is whether there should be an independent review of the commissioner's decisions. Some people say that is the end of it when a decision is made, and that decision has to be worn. I believe if that line is taken, we would never have had an Ombudsman, an Independent Commission Against Corruption, or a Health Care Complaints Commission. People will say a decision has been made and you have to cop it. It is important to say that we do not always get it right. Sometimes mistakes and errors of judgment are made. I am not saying that malice is necessarily involved when a wrong decision is made. But there should be an ability to review a decision to ensure that the right result is obtained.
I am not asking for a review process that would involve reinvestigating a complaint from the beginning, going over all the evidence again, bringing back all the witnesses, including the complainant and the medical practitioner involved, and having further costly legal representation. I am saying a review panel could examine the evidence and documentation already presented and then assess whether the complaints commission has made an appropriate decision.
The honourable member for Bligh will move a further amendment which attempts to achieve what I am seeking to achieve. But unfortunately her amendment merely relates to the merits of a matter. That would entail legal representation, witnesses to be called; and there would be a fiasco similar to the one in Elliott's case. The abuse of the process in that case is delaying the delivery of justice. I do not want a legalistic situation to pertain or to delay matters. However an independent review panel would be able to make a short sharp review of the commissioner's decisions. The panel would provide that opportunity without enormous rigmarole. It is like having a second opinion. Throughout the health care system it is often said "If you are worried, get a second opinion".
Although I hate the words the Minister uses of "customer focus" - I think they are atrocious - we certainly talk about consumer focus. We talk about consumer focus, and I believe it is quite reasonable for health consumers to be able to have access to a short sharp review. One of the problems all members on this side have highlighted - and some members on the other side have also highlighted it, and I understand the Minister has made some changes - is the slowness of investigating complaints through the present complaints unit. Delays have not been intentional but there have been blocks to obtaining a speedy decision. Many people feel they are not being listened to appropriately and are not getting a fair go. If some people do not get the result they expected, they think that somehow the investigation has been undermined. By establishing an independent review panel, the commission would be more speedily able to examine complaints. I am aware that by more speedily examining complaints, mistakes will be made occasionally. This amendment will enable speedier decisions to be made and any mistakes to be immediately picked up. The commission would be redirected to look at a complaint.
This amendment will not destroy the commission, tear the heart out of the bill, undermine the integrity of the commissioner or the commission or cause the Government to lose face if it accepts it. I believe it is a simple amendment that adds an extra consumer protection to give the vast majority of people interested in the handling of health complaints the feeling that the system is moving closer to being absolutely right. Without this provision it will look as if the Government is trying to hide something or that it has made up its mind and is not interested in further consultation. I am trying to limit the number of formal divisions so that the time of the Parliament is not wasted, but of all the amendments to be moved, this amendment is a marker.
It is important to have independent review. I believe this amendment will be the beginning of getting the bill as right as we can, in the light of the information that is available. I am not proposing an independent review panel that is part of the commission. That would not be independent enough. I suggest that the Minister establish a review panel, That panel would comprise three people: a legal practitioner, who would chair it; a person to represent the interests of consumers - and the House might note that I refer in the amendment to consumers and not to customers - and a person from one of the appropriate registration boards. For example, if a complaint is made about a medical practitioner, the appropriate registration board would be the Medical Registration Board.
Of course, there could be a number of aspects to the complaint and an appropriate person might be recommended from a number of registration boards, but only one would be chosen. With a three-person panel, obviously a majority decision would flow from its deliberations. The panel would take decisions away from the internal reviews that are proposed in the bill. I believe an independent panel would give greater credibility to the commission, to the legislation, to the Government and to the Parliament. Certainly the Ombudsman is able to look at issues referred to him, but usually the Ombudsman will not spend an enormous amount of resources going over individual results again. The Ombudsman can look at the systemic handling of complaints by the commission. I understand that a report to be released soon contains significant comments about how that process works, though it is not related to individual complaints. After all, that is not the function that I envisage the Ombudsman carrying out. It is not a case of going to the Ombudsman in the event of an unsatisfactory result before the commission.
The amendment would ensure that the Ombudsman was not loaded up with work. People would not subsequently be disappointed because the Ombudsman decided not to look at a matter. In Page 5571 passing, it is important to point out the percentage of complaints investigated by the complaints unit compared with those investigated by the Ombudsman. The complaints unit looks after many more complaints than the Ombudsman does. To suggest that the Ombudsman will examine complaints not dealt with by the complaints unit suggests a misunderstanding of the rigour that has existed in those two organisations. That is why the amendment gives the Minister mandatory responsibility to establish a review panel with sharp focus. It is not a case of it becoming a legal minefield, with lawyers arguing one case or the other, and bringing in witnesses to guarantee credibility and so on.
The panel is designed to examine the documentation and to ensure that the appropriate decision is made. On a number of occasions I have had the opportunity to look at documentation relating to individual complaints. In many cases I believe the complaints unit made the correct decision, even though a complainant may still feel aggrieved and may believe the decision was wrong. I have told complainants of my understanding from the information available to the complaints unit. I believe that occasionally the complaints unit has made not a wrong decision but a decision that perhaps recommends weaker action than should have been taken. I might have considered that the unit should have been harder against a hospital, a system in a hospital, or a practitioner. That is the type of thing I want to cover by this amendment. It is not that I want to be on this panel - far from it. But there should be an independent panel to determine whether a matter has not been handled as well as it should have been or whether one aspect of a matter has been given greater weight than it deserved, with others not taken into account or downgraded in significance.
The panel review will allow for another go. If the commission is doing its job and doing it well, this independent panel will regularly find that there is no recommendation to be made, apart from the fact that the commission got it right. If that is the case, a parliamentary committee can review the process of the commission and of the review panel. There is also provision for a review of the legislation itself. At that stage it might be considered that it has been a delightful waste of time and the panel could be abolished. But why not give the panel a chance to see if it will work, thereby giving the community confidence in this legislation? A number of organisations have committed themselves to this legislation and a number of organisations are totally opposed to it.
Some other organisations support the legislation but have asked for the inclusion of an independent review panel. I have not had contact with an organisation that has specifically said not to establish an independent review panel. Certainly those who oppose the bill outright see the panel as allaying some of their concerns. Those who support the legislation have not said that the panel should not be established. I believe the majority of those in peak organisations consider it to be reasonable to have an independent review panel. This is not a Labor Party plot. This is not an attempt to give jobs to lawyers, doctors or health consumers. I am not even prescribing who should be there, apart from the categories from which they should come. The Minister will decide who serves on the panel and, of course, the appropriate registration boards will make those decisions as well. This amendment will ensure that there is integrity in the process.
Mr ROGAN (East Hills) [4.58]: I support the Deputy Leader of the Opposition in moving this amendment. It is a very important amendment, and I trust that the Minister will see the merit of it. Obviously I would not wish to canvas matters raised in the second reading debate because clearly I would be out of order if I did so. However, it is important to note that one of the overriding themes of contributions other Opposition members and I made last night during the second reading debate on this legislation was that health consumers, as represented by the organisations referred to last night, are expressing serious concerns about what they see as their protections and their rights under this bill.
The proposed amendment will go some way towards allaying some of those concerns. As the Deputy Leader of the Opposition has highlighted, an independent review panel will provide oversighting. Inherent in that will be a degree of consumer protection and, without canvassing matters outside the scope of the legislation, I should like to refer to the Californian model of a similar body to the Health Care Complaints Unit proposed under this legislation. In California the body does not comprise one person, but a significant number of consumer representatives. The constitution and functions of an independent review panel, depending on the successful carriage of this amendment, will come under part 6. The Deputy Leader of the Opposition referred to the appointment of three persons to the panel in the event that the House - and I trust that it will - carries this amendment.
I hope the Minister will see merit in the motion and embrace and accept the amendment on behalf of the Government. The three-person panel includes one person who, in the Minister's opinion, represents health care consumers. Though honourable members may debate later who that person may be and, indeed, the organisation the person may represent, the principle is in place. At least a consumer representative will be on the panel, which will oversight and provide independent review of decisions made by the new Health Care Complaints Commission. The functions of the review panel, as outlined in the foreshadowed amendments, will be:
88. (1) The principal function of an Independent Review Panel is to review the decision for which the review is sought and to recommend to the Commission the action (if any) that, in its opinion, should be taken in respect of the decision.
(2) For the purposes of exercising its principal function, an Independent Review Panel is entitled to have access to the same information as was available to the person whose decision is being reviewed in reaching the decision.
Page 5572
Last evening in the second reading debate, Opposition members drew attention to individual concerns about the current complaints unit, which would, presumably, carry over to the Health Care Complaints Commission. I congratulate the Deputy Leader of the Opposition for his initiative in introducing amendments that will provide some independent review of those decisions. I believe they will also meet some of the concerns expressed in the media. Those concerns were referred to last evening and were expressed in the Sun-Herald editorial of 14th November. The editorial referred to some of the defects of the legislation as follows:
This means members of the public will be unable to find out how effectively the new body is investigating their complaints about the medical profession. It will also mean people who feel their complaints have not been adequately dealt with will repeat claims that the system is slanted in favour of the medical profession, and not the patient.
Concerns raised in the second reading debate were echoed in the editorials of major newspapers. In an editorial of 2nd November, 1992, the Sydney Morning Herald raised the concerns of consumers about the first bill, and those concerns are now echoed in the current bill. The amendment provides a means by which an independent review can take place. If the amendment is carried, part 6 of the bill will spell out the composition and functions of an independent review panel, which will give some form of protection. Accordingly, I urge the Minister, the Government, the House and Independent members, who I know have particular concerns about consumers and the oversighting of the new commission, to support the amendment.
Mr GIBSON (Londonderry) [5.8]: The editorial in last Sunday's Sun-Herald read:
Politicians are servants of the public - no more and no less. But this fundamental point of our great democracy is about to be flouted in NSW as Liberal, National and Labor parties combine to pass new legislation over health complaints.
Part of that editorial is correct. This amendment would give the consumers of New South Wales some faith. Politicians are servants of the public, no more and no less. Government speakers and the Minister maintain that consultation has occurred on a wide range of matters, but members of the Opposition refute that. Last night I heard with great joy the Minister say he had consulted with the people from Chelmsford. Those people, who were sitting in the gallery, were amazed at the Minister's statement. I should like to tell honourable members the form that that consultation took.
The Chelmsford people went to see the Minister and handed him their concerns in writing. The Minister told them that he would hand those concerns to Merrilyn Walton because she was the architect of the bill. That was the end of the meeting. That is the consultation the Minister talked about last night. Great consultation with a body that represented 50 people who died and, as I said last night, thousands of people who were hurt and humiliated by what happened at Chelmsford. The people who were sitting in the gallery last night have been to hell and back, yet the Minister had the audacity -
The TEMPORARY CHAIRMAN (Mr Tink): Order! Would the honourable member explain the relevance of his comments to the amendment to clause 4?
Mr GIBSON: The proposed amendment to clause 4 will restore public confidence in the legislation. The proposed independent review panel will provide wide-ranging representation. The manner in which debate on the bill proceeded last night left a lot to be desired. One of the main groups that will be affected by this bill is the Chelmsford Victims Action Group. I am just trying to correct a statement that was made last night.
The TEMPORARY CHAIRMAN: Order! That matter should have been dealt with at the second reading stage. I ask the honourable member to address the clause.
Mr GIBSON: The amendment of the shadow minister proposes the establishment of an independent review panel comprising three people: a health practitioner - which is only right - a person involved in the law, and a person who, in the Minister's opinion, represents consumer groups in New South Wales. If New South Wales consumers are to be treated properly, it is not unfair to ask the Government to look at establishing this panel. This amendment does not go too far if we consider the pros and cons of the legislation and the security provided by it. People cannot appeal to the Ombudsman as conciliation is excluded from this legislation. They have nowhere to go. I hope the Minister and the Government will look at this amendment with a view to supporting it and establishing this worthwhile panel. As I have said, the panel will be comprised of representatives from the legal fraternity and the health fraternity and one representative nominated by the Minister. I urge the Government to support the amendment.
Dr MACDONALD (Manly) [5.12]: This is a difficult amendment. However one argues it appears to have merit. A large number of consumer groups support the concept of an independent review panel. Before I address the issue of who supports the amendment and who does not, I wish to deal with the question of medical complaints. Medical complaints bring with them a particular flavour and they have particular characteristics because of the concerns they raise and a particular strength because often there is an underlying grievance. Complaints can never be resolved because the views of many people are firmly held. I mention that only because medical complaints are different from complaints that arise in other professions.
Many people who make complaints never receive satisfaction. Appeal mechanisms, which are provided for in this legislation, range from the right to appeal to the commissioner to have a complaint reheard or dealt with again to the right to have the Ombudsman deal with matters of an administrative nature other than those that relate to the conduct of a conciliator. The bill also provides an opportunity for the proposed parliamentary standing committee to be dealt with. Page 5573 As I understand it, there is no reason why those who believe they have been subjected to injustice or those who complain about the way in which their grievances were dealt with should not have an opportunity to bring those matters to the attention of the parliamentary standing committee.
Progress reported and leave granted to sit again.
PRIVATE MEMBERS' STATEMENTS
______
MANLY ELECTORATE MENTAL HEALTH SERVICES
Dr MACDONALD (Manly) [5.16]: I am happy to see the Minister for Health in the Chamber. I wish to draw to his attention mental health services in the Manly electorate and, in the broader context, the provision of community health funding and the allocation of that funding. I deplore the lack of adequate funding for mental health services. The Minister might be able to tell honourable members why it is not possible to fund mental health services adequately, but I want to put it clearly on the record that I deplore the lack of adequate funding. Tonight I wish to bring to the attention of the Minister a community based proposal. Recently, Brian Burdekin, the Human Rights Commissioner, highlighted the need for community based mental health services in the report. His two-volume report covers a wide range of issues, some of which I wish to draw to the attention of the House because they relate to matters I will address later. Mr Burdekin, in chapter 5 of his report, made the following recommendation in relation to increased funding:
Federal, State and Territories Governments should provide increased funding and resources to integrated mental health services as a matter of urgency.
He went on to state in chapter 8:
A strategy was to be developed whereby 24 hour and 7 days a week psychiatric emergency or crisis teams would be available throughout Australia.
At the moment they are not. He said in chapter 9 that community mental health services should include an appropriate combination of a number of facilities, including crisis services, mobile teams, day programs and community outreach programs. A comment was made in the aftermath of Burdekin's report that one of the major human rights abuses in this country is the lack of funding. Burdekin, in chapters 10 and 11, talks about the provision of supported accommodation for people with psychiatric disabilities. In chapter 12 he recommended:
The Federal Government should encourage the development of "Clubhouse" or other effective programs based on transitional employment schemes.
Before referring to that matter in detail I want to point out that my requests are consistent with this statement on Department of Health policy contained in a document:
In New South Wales, mental health services and funding are not equitably distributed.
The document also stated:
In line with the National Mental Health Policy, the NSW strategic plan aims to develop widespread community based services to provide early intervention and treatment.
I draw to the Minister's attention that a mental health task force of Manly, Warringah and Pittwater has been established. The task force, which comprises representatives from community groups, local councils, the police, health services, and Federal and State agencies, is looking at developing a Manly drop-in clubhouse, which is consistent with the Minister's policy.
The concept of a clubhouse has been supported by the Association of Relatives and Friends of the Mentally Ill, and also by our local Manly hospital community health services. If the Minister provides the necessary funding, an option lease with a drop-in facility for the mentally ill would be $236,000; a purchase would be $600,000, most of which would be for upfront costs. I am planning next week to hold a workshop in response to the Burdekin report. Brian Burdekin will speak to the community in Manly, to ascertain community response. The workshop will also be attended, I hope, by former senator Peter Baume. These measures are community based and community supported. I anticipate that the Minister might ask why the community does not do something about it. The community plans to do something about it, but it needs some resources. [Time expired.]
Mr PHILLIPS (Miranda - Minister for Health) [5.21]: I have only two minutes in which to respond. Anyone who reads the Burdekin report carefully will know that it strongly supports the policy direction on mental health in New South Wales and basically urges New South Wales, and other States in particular who lag behind us, to move faster. The issue is about trying to solve some of the problems in the system; years of poor implementation of this policy need to be corrected. The Burdekin report lists 34 excellent initiatives that have been undertaken in New South Wales. The Government has moved substantially to community based funding.
Not only has the mental health budget increased, but the community based share of that budget has moved from 20 per cent to 40 per cent. I do not pretend that we do not need to do more and to move faster. That is why I was determined to move as quickly as practicable with closure of institutions such as Gladesville. The honourable member for Manly made one important comment: mental health resources are not equitably distributed. I agree. One problem is that the Northern Sydney Area Health Service has a predominance of funding for mental health, and other areas are disadvantaged in comparison. That will make it difficult for priorities to be given to particular projects. I support the projects of those centres. However, we need to make sure that funding is concentrated on the health care issues and hopefully obtain the support of the community.
Page 5574
ST PATRICKS PRIMARY SCHOOL, ASQUITH
Mr O'DOHERTY (Ku-ring-gai) [5.23]: For some time parents, teachers and the principal of St Patricks Primary School at Asquith have been concerned about the intersection of Royston Parade and Baldwin Avenue, Asquith, where the school is situated. Baldwin Avenue comes from the vicinity of the railway bridge that crosses the northern rail line; Royston Parade comes from the north and finishes at Baldwin Avenue; and Sherbrook Road comes from the south, and involves quite a steep climb. This is a particularly nasty intersection at the end of a school day, when students are trying to cross the road, many parents are parking in the church grounds opposite while they pick up their children, and buses are picking up children to take them, in some cases, to distant suburbs - St Patricks, being a systemic school, draws students from a wide range of suburbs. Students from nearby Asquith Girls High School, many of them on their P-plates and eager to return home at the end of the day, are using the same intersection.
Julian Tobin is the principal of St Patricks Primary School. I visited the school recently and heard her concerns about this intersection. She has been raising these concerns for some time with officers of the Roads and Traffic Authority. With Julian Tobin I watched the spectacle at 3 p.m., with children trying to cross the road and teachers trying to regulate their crossing. I watched cars streaming up and down the intersection with, in some cases, motorists completely ignoring the traffic rule that while children are crossing in a designated crossing with lights drivers have to wait until all the children have finished crossing before they may turn from one street into another. Often they turn right from Royston Parade into Baldwin Avenue in order to progress to the Pacific Highway.
I also saw vehicles coming from the south in Sherbrook Road and turning left into Baldwin Avenue to travel to the Pacific Highway. On one occasion I saw a motorist trying to sneak through the intersection as soon as there was a green light, trying to get through the lights before the children made it to the other side. It is a recipe for disaster. No one would want to see an accident at that intersection involving schoolchildren being knocked down. This matter needs immediate attention. As soon as Julian Tobin raised it with me I brought it to the attention of the Minister for Transport and Minister for Roads and the Roads and Traffic Authority. I asked them to look at that intersection immediately with a view to trying to provide pedestrian arrows to make it perfectly clear to the traffic that they must wait until all the children had safely crossed.
The Roads and Traffic Authority has now agreed that this is a matter of some urgency. It is going to consider providing arrows to prevent traffic from getting through while children are crossing, and will split phase the light. Split phasing is the technical term for stopping traffic one way and allowing traffic only to come through the other side, until children have crossed. The combination of those two measures - split phasing of the lights and provision of right and left turn arrows - will go a long way to allaying the concerns of Julian Tobin and her school community. I pay tribute to her for raising the matter with me. The Roads and Traffic Authority believes work can be completed before first term next year.
I congratulate St Patricks on its building refurbishment program. It is going very well and will provide a better library and other facilities when it is completed. It is good to see that while that building is in progress and there is some disruption in the school, children are able to go across the road to Asquith Public School, where they are able to have their own lunch and play times at the school's facilities. I pay tribute to the principal of Asquith Public School, Ruskin Donlan, for allowing children from St Patricks to use the facilities of his school during the building works.
Mr CAUSLEY (Clarence - Minister for Agriculture and Fisheries, and Minister for Mines) [5.28]: I noted the statement of the honourable member for Ku-ring-gai and also the fact that he has been in contact with the Minister for Transport. I trust that his contact with the Minister for Transport will alleviate the problems he has outlined.
MOUNT VICTORIA TO LITHGOW RAIL SERVICE
Mr CLOUGH (Bathurst) [5.28]: A couple of weeks ago I raised in this House the possibility that rail services between Mount Victoria and Lithgow would be cut back to some extent in the future. I also tendered a petition from many people in Lithgow who were concerned about that possibility. Since my first speech on the matter the Minister has said it was rubbish and Mr Brew has indicated that it will not occur. I have sought further advice from the railway unions involved and they have assured me that a number of matters are factual. I wish to quote from a letter addressed to the Lithgow Mercury by Mr Paul Thompson, the PTU councillor at Lithgow, outlining one or two facts:
Fact - City Rail management has a paper circulating on the withdrawal of interurban services from Mt Victoria to Lithgow and replacing them with the current bus services running into Lithgow by extending them to Mt Victoria.
That would mean that the $4.5 million interchange that was constructed at Lithgow railway station would, to all intents and purposes, become worthless. The interchange itself was the subject of debate before it was built. It was the most expensive option available to CityRail. However, that was the option chosen; a lift now operates in the facility and those who use it are pleased with it. The article proceeds:
Fact - City Rail has already made all the required plans and measurements at Mt Victoria to accommodate the extra trains to be stabled there.
My investigation revealed that to be correct. A deal has been done with Freight Rail to free up the lines that had been used at Mount Victoria so that Freight Rail could stable interurban carriage sets at Mount Victoria. The next fact is:
Page 5575
Fact - City Rail has already drawn up a plan to construct a bus interchange at Mt Victoria on the vacant land they have on the Blackheath side of the station.
That plan has been in the wind for some time. I have been frequently alerted about it by railway unions - whose members, after all, are at the coalface and know what is happening in the authority; obviously they get copies of internal memoranda that are circulated concerning what is happening. The fourth fact is as follows:
Fact - City Rail intends to hand their interurban storage roads at Lithgow over to Freight Rail in March, 1994.
This is the crux of the issue and is related directly to the second fact to which I referred, that CityRail has made all of the required plans and measurements at Mount Victoria to accommodate the extra trains and then will hand over to Freight Rail that section of the Lithgow yard that has been used for the stabling of interurban sets at that station. I am led to believe also that as from March 1994 CityRail will be handing over to Freight Rail the railway line between Mount Victoria and Lithgow. With that will go responsibility for maintaining the 10 tunnels on the bottom side of the line towards Lithgow and responsibility for track maintenance in that area.
I imagine it would be fairly simple for someone to deny that any such memorandum has been circulated. If that occurs, I will ask the union to produce the copy it has. I expect that if it is the intention of CityRail to reduce the number of services operating to Lithgow, that will become apparent fairly soon. Only a few days ago I was at the Lithgow railway workshops when an accreditation certificate was handed over. It is obvious that Lithgow is the place from which all interurban services should commence. It is a traditional railway town, though under this Government staff numbers have been reduced appreciably; the number of enginemen has been reduced by more than half.
The interurban services that meet the travel requirements of people who live in the Blue Mountains area commence at Lithgow and operate through the Blue Mountains. Lithgow is the logical place to stable the trains, as that is where the electrified system finishes. Had the advice given to the State Rail Authority been taken, the electrified system could have been used right through to Bowenfels station and that would have avoided the necessity to construct a $4.5 million interchange. I ask the Minister for Agriculture and Fisheries and Minister for Mines to refer this matter to the Minister for Transport and Minister for Roads for comment.
Mr CAUSLEY (Clarence - Minister for Agriculture and Fisheries, and Minister for Mines) [5.33]: The honourable member for Bathurst said that when he raised this matter with the Minister last week, the Minister said he was speaking rubbish. I suppose the honourable member does not accept that opinion. I have always found the Minister to be truthful. I am sure that the honourable member is again shooting at shadows, because it is convenient for him to do so. I am sure the issues raised can be addressed by the Minister.
The honourable member for Bathurst suggested that the Government had reduced staff numbers in the rail service. It will be obvious to everyone that when Labor was kicked out of office in New South Wales the railways were losing $5 million a day. The Opposition has not learned from the experience in Western Australia, South Australia and Tasmania. The mentality is the same: just throw money at the problem. Opposition members have no conscience about using taxpayers' money. The honourable member for Bathurst should be watching closely what is happening to the honourable member for Port Stephens and what he is doing to his chances of being re-elected, as a consequence of the bill he has introduced. The electorate of Bathurst unquestionably will be represented by a member on this side of the House after the next elections. Despite the comments being made with a view to gaining a headline from this issue, I am sure people will realise that good management comes from this side of the House and they will elect a person to sit on the coalition side of the House following the next elections.
STAMP DUTY EXEMPTION ON RURAL PROPERTY TRANSFERS
Mr SMALL (Murray) [5.35]: I raise an issue that is important to farming families and may affect small business people. I wrote to the former Premier on three occasions and recently have written to the present Premier about stamp duty exemption for family members involved in primary industry production in respect of the transfer of properties. In my opinion Treasury will not be deprived of stamp duty when transfers of properties are undertaken between family members. At present very few properties are transferred into different ownership within a family, especially from parents to sons or daughters, because stamp duty is not affordable. When parents pass on, their properties are frequently bequeathed to children and no stamp duty is payable.
What is happening now is that properties in effect are being handed over to sons, though the title is not transferred. Therefore the arrangement does not attract stamp duty. The true title to the land does not devolve to the sons or daughters. In turn this practice creates a problem for parents, who may have retired and live in town. Because the property remains in the name of the parents, the parents are not eligible for the age pension because they retain the title to the asset, even though it is not providing them with any income. In these circumstances farming families, especially parents, are being done a great disservice. The Government should ease the burden by following the pattern adopted in Victoria and removing the liability for stamp duty on property transferred between direct family members. I request that this important issue be resolved in New South Wales to assist farmers who want to hand their properties on to their sons or daughters, or perhaps to other direct family members, by removing the obligation to pay stamp duty.
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In these difficult economic times many parents in the New South Wales farming community - especially in the Murray electorate - cannot afford to pay the stamp duty that would be payable on the transfer of their properties. Many families are suffering financial hardship and have huge debts. I realise that the Government needs as much stamp duty as possible to enable it to maintain its revenue. However, I am sure that my proposal will assist farming families. Young country people must be able to secure land to undertake farming activities. This would be one way of encouraging them. It would be an affordable way for parents to pass their land to direct family members and retire in good grace. They would then become eligible to obtain the age pension, as they would not have their farms as an asset in their names. Federal and State duties cause many problems for the people to whom I have referred.
This exemption should be available to farming families and direct kin of families with small business. Though undergoing difficult economic times, the Victorian Government since coming to office has removed stamp duty on farming property transfers between direct members of families. I congratulate it on that initiative and call on the New South Wales Government to do likewise. My suggestion is that the Government exempt from stamp duty transfers of farming properties and small businesses within families.
NEWCASTLE HARLEY TOURS
Mr PRICE (Waratah) [5.40]: I raise a concern relating to Newcastle Harley Tours. This company was formed by my constituent Bernie Viemeier, who operates a number of Harley Davidson motor cycles, one, at least, fitted with a sidecar. On request he runs tours of the beach side of Newcastle and into the city. His business is located in a car park in the Queen's Wharf area. In June 1991 Mr Viemeier sought permission from the Department of Transport to commence operating his vehicles, offering tourist joyrides around the city. Incredible delays were experienced up until the middle of May 1992, when the then Assistant Minister for Transport assured the Newcastle Lord Mayor, who had made representations on Mr Viemeier's behalf, that the department would give approval for this service to operate.
It should be borne in mind that Mr Viemeier had given his submission considerable thought. The submission included letters of support from a number of local members, the Newcastle Lord Mayor, the Hon. Bob Brown, then Federal Minister for Land Transport, and the late alderman Don Geddes, barrister-at-law, who had investigated the matter, as well as various officers of the local tourist authority. Mr Viemeier had given this venture considerable thought. The department continually procrastinated. I made representations, certain denials were made and rules were to be set. Finally, in May 1992 the department said it would organise the matter. This was mainly because the matter had been placed on the agenda of the Federal Conference of Land Transport Ministers and other States were in favour of, and were in fact proceeding to provide, regulations to suit similar tours in their respective States.
Since that time a set of rules has been produced. Mr Viemeier believes the rules are designed specifically to force him out of business. He claims that the safety requirements are unreasonable. I have inspected his operation and witnessed many people enjoying the tours. One of his tours around the beach front of Newcastle has a speed restriction of 40 kilometres per hour. At his own expense and initiative Mr Viemeier fitted seat belts to the sidecar, which is in excess of any law required for normal sidecars. Yet the department is now compelling the use of full-face helmets, even though that is not a requirement for other motor cyclists. Also, Mr Viemeier is not permitted to operate out of the car park; he is supposed to stand in a taxi rank.
This issue is reaching stupid proportions. Mr Viemeier now informs me that a significant amount of taxpayers' money is being wasted because field officers are witnessing him working - something he has never denied - and private investigators have been engaged by the department to film his operation - another matter he has never denied. How much money is the department prepared to spend to prove that this person cannot operate two motor cycles and a sidecar? This is extraordinary, given that the city tourist promotion people are anxious that Mr Viemeier continue with his operation. His business is quite an event on the boardwalk of Newcastle Harbour. The department has now taken court action against Mr Viemeier. I quote from a letter he wrote to me:
Dear Mr Price,
The Department of Transport is now engaging in a personal vendetta. They are no longer happy to let the Newcastle Local Court decide the merits of my case and have, with the aid of huge amounts of taxpayers money, leapfrogged the system by issuing me with a Supreme Court summons to stop me from working.
That is extraordinary. If the department is seeking to stop him from working, that is one thing, but the costs associated with a Supreme Court hearing are outside the range of most people, but not the Department of Transport. Yesterday I raised this matter with the Minister when I thought private members' statements would have been allowed, but they were denied. The Department of Transport is seeking that the Supreme Court hearing be held in Sydney, making it almost impossible for Mr Viemeier to be represented or to attend. I ask the Minister to consider this matter because the department is overdoing it and the matter should be further examined. [Time expired.]
SOUTHEAST FORESTS TIMBER INDUSTRY
Mr COCHRAN (Monaro) [5.45]: I raise again a matter on behalf of the timber industry of New South Wales in the southeast region to follow up a matter I raised some weeks ago in this Parliament relating to the sabotage of equipment in the forests. I view this matter with the same grave concern as Page 5577 many others, not only those who work in the industry but people across New South Wales who consider that this eco-terrorist activity is beyond the pale, and is life threatening. It should be condemned by everyone, not just those who have any sympathy with timber workers.
Following the recent revelations I made in the House with regard to the sabotage, I was condemned by the editor of the Bega District News for having dared to suggest that it was the greens who were sabotaging the power poles in that area. I am pleased that a friend of the timber industry forwarded me an extract from a journal referred to as the Earth First! Journal. I wish to read into Hansard some of the rubbish that is being pedalled around the countryside in order to encourage people in the green movement to sabotage equipment. The article states:
Dear Ned Ludd has returned as a regular feature in the Earth First! Journal for discussion of creative means of effective defence against the forces of industrial totalitarianism.
This is the sort of nonsense that is going on. I give further examples from the document:
Almost all damaging projects require the use of "heavy equipment" - bulldozers, scrapers, cranes, shovels, rollers, etc. All over the country you see these behemoths left on work sites overnight, generally with little or no protection. Usually, they are left completely unguarded, with the engine compartment unlocked.
The document goes on to describe how these motors can be accessed and great damage can be occasioned by tipping water and sand into the filling compartments of the motors. The article further states:
Friday and Saturday nights are good for night-work, since any spilled water will have had plenty of time to dry before Monday morning when the workers return. Avoid the type of oil filler tube that also holds the dipstick, or at least make sure that no tell-tale grit will show on the dipstick if the oil level is checked. Don't use so much water that the oil level rises too far. The goal is to leave no sign of tampering, so that the engine is run and destroys itself.
This is the type of material that is being pedalled by the environment movement. The document continues:
According to Ecodefense, two of the most effective measures are abrasives in the oil or fuel, or (preferably salt) water in the oil. The oil filler is very easy to find. It is a large cap, usually with a T-shaped handle on top. Water is cheap, easily washes down the abrasive, and cleans up any spills. It also causes internal rusting.
These clowns are advocating that people should go into the forests and tip salty water and sand into these machines that cost hundreds of thousands of dollars. These types of publications are being distributed amongst the eco-terrorists of the southeast forests. I am sure both sides of the House would condemn this type of action because it is damaging equipment and is life threatening. I recently said in this House that power poles were being cut down to a height of one foot above ground level. A light wind could blow the pole stumps over and could cause a major bushfire that would threaten the environment that these people claim they are protecting. If there is an ounce of common sense in the minds of these people operating in the southeast forests, they should desist from their actions and at least give the forests, the animals and the residents an opportunity to survive. I ask members of the House to condemn the actions of the environment movement. I shall certainly take the matter up with the local police in an attempt to ascertain who is peddling this nonsense amongst responsible environmentalists.
Mr CAUSLEY (Clarence - Minister for Agriculture and Fisheries, and Minister for Mines) [5.50]: I thank the honourable member for Monaro for the opportunity to speak on this issue. This sort of damage is also occurring in my electorate. It would be bad enough if people were only being provided with information about how to create this sort of damage, but the honourable member for Blacktown and the honourable member for Port Stephens move motions defending these eco-terrorists. Hard-working people who do not earn much money would normally be defended by the so-called defenders of the working-class, but what happens? The Labor Party of New South Wales is defending these eco-terrorists.
Hard-working people who are battling to earn the basic wage are being affected. They spend most of their money paying lease payments on this expensive equipment, which must be left out in the bush. They are worried that some of these terrorists, who do not work, could be skulking around waiting for the opportunity to wreck equipment. These hard-working people at least are earning a crust and paying taxes; they are not sitting and bludging off society like some of the people who wreck this expensive equipment. The timber industry workers are absolutely disgusted that the Australian Labor Party is prepared to support these terrorists at the expense of the good, hard-working people who are at least helping to boost and not drag down the economy of this country. The people of my electorate and I are also disgusted with this type of action. The people who try to defend their property or right to work in some instances have been physically dragged away - [Time expired.]
HYPER VIDEO GAME MAGAZINE
Mr NEWMAN (Cabramatta) [5.52]: My electorate office received a telephone call today from a Mrs Flower of Mount Pritchard, who voiced her concern about a magazine her son had purchased. The magazine entitled "Hyper" is a video game review magazine marketed at the 10 to 14-year-old age group. Mrs Flower told me that some of the contents were pornographic and obscene. I purchased a copy so that I could look at the article that was the cause of concern. The magazine's cover has a cartoon caricature and does not give any indication of sexual content. Displayed on the cover are references to Aladdin, Thunderhawk, Battlemaniacs, Final Fight and other types of video games that we would expect young people to be interested in.
The centrefold in the magazine has a picture of Walt Disney's Aladdin. Clearly, it is a magazine directed at the 10 to 14 age group. But when one Page 5578 turns to page 16, what a shock! Displayed in a photograph are two naked people with artificial apparatus attached to their bodies - one on the man's penis and the other inserted into the woman's vagina. Also contained on that page in the written article is language that every parent would take exception to. I quote from a section referring to Virtual Valerie:
A CD based game in which the aim is to please Valerie. At the conclusion of the game, two dildos are proffered for the player's use, to be inserted via the Macintosh's mouse into Valerie's vagina as she moans and begs for more.
The article proceeds to talk about "sex.bondage, sex.golden showers.sheep and alt.sex." - whatever that means. It explains where young people can acquire these types of video games. In another section the article refers to stimulation from these video games. It says:
And there's no physical aspect. Short of using the handset (or the whole phone, what the hell) or a mouse for manual stimulation, you still don't get to do much. Users can masturbate during the conversation, but it's not the same as making the choice of sticking it in or giving something a lick just when you feel like it.
It is a disgraceful page containing disgraceful language. It is a disgraceful article. The first edition of this magazine is disguised as a children's magazine but it has contents that would shock the most sturdy builder's labourer. I call on the Minister for Consumer Affairs to take immediate action against this publication. Mrs Flower has written to the Minister and to the magazine editor saying that she finds its contents objectionable. I ask for restrictions to be placed on this magazine. The shadow minister for consumer affairs, Mr Amery, joins me in my condemnation of the way this magazine has disguised its obvious content, which goes beyond the adult area. The magazine contains some straightforward articles, but this article is proof that sometimes three or four pages can be included in a publication intended for the 10 to 14-year-old age group that really belong in the senior triple-X adult bracket. Children in the 10 to 14-year-old age bracket are purchasing this rubbish. [Time expired.]
Mr CAUSLEY (Clarence - Minister for Agriculture and Fisheries, and Minister for Mines) [5.57]: I do not believe that anyone in this House would condone the type of publication that the honourable member for Cabramatta said he has purchased. I am sure the Minister for Consumer Affairs will be interested in the publication. However, I am unaware whether the magazine is printed in Australia -
Mr Newman: A totally Australian publication.
Mr CAUSLEY: The Federal censorship laws leave a lot to be desired. Perhaps members opposite could approach some Federal members to ensure this type of publication is not distributed.
PUBLIC SWIMMING POOL LIFESAVING EQUIPMENT
Mr SMILES (North Shore) [5.59]: I bring to the attention of the House a matter of considerable concern. Every member has a municipal or shire council in his or her electorate that runs and administers public swimming pools. Earlier this week I had a tragic meeting with the mother and grandmother of a 14-year-old schoolgirl who died in tragic circumstances earlier this year. Rebecca Haynes was involved in an accident at the Hornsby municipal swimming pool in March. After some period in a coma, she died in hospital in May. I contacted the mother, grandmother and grandfather of Rebecca to seek permission to raise this matter in the House.
The findings in the coroner's report indicate that lifesaving equipment at the pool was faulty and Rebecca did not receive enough oxygen to assist in full resuscitation. My concern in this matter is that of the hundreds of public swimming pools in New South Wales how many have substandard or faulty equipment that never gets detected? The Local Government Act does not provide for a regulation in regard to life saving equipment, maintenance criteria or staff qualifications associated with our local swimming pools. Since the new Act came into force less than six months ago, and with it the repeal of ordinance 52 - which laid down in detail swimming pool safety requirements - public swimming pool owners and operators, such as councils, have had the opportunity to be less vigilant in this critical area of community safety than they otherwise would have been.
It has been put to me that, in reality, since the repeal of ordinance 52 requirements, the only organisations having any form of monitoring control over councils and other bodies are professional indemnity and public liability insurers. I find this extraordinary and unconscionable. It is saying to our community that we will protect people adequately when they swim in our publicly owned swimming pools, but only if the price does not become too high in terms of premiums and other costs. As the Act now stands councils and pool administrators can employ whomever they choose to carry out work associated with the installation and maintenance of life saving equipment; and they can employ whomever they choose to undertake the general supervision associated with the administration and safety control of our public swimming pools. I find this particularly difficult to contemplate, because we look to having a competent staff to manage and supervise all such pools in a busy summer season.
I have been informed, to the credit of local government, that throughout the metropolitan councils in the absence of any other directives there has been, to a large extent, an unspoken policy to continue to abide by the requirements established by the old ordinance 52. I am grateful to those councils that have given consideration to this matter and have, at least, acknowledged the fundamentals associated with the old ordinance 52. But unfortunately we must acknowledge that such an inappropriate situation cannot continue. To me it is appalling that a 14-year-old girl, a former constituent of mine, Rebecca Haynes, suffered death and that there are very serious question marks about faulty equipment at Hornsby Page 5579 pool having contributed to her untimely death. I ask the Minister to bring to the attention of the Minister for Local Government and Co-operatives this serious omission to the regulation dealing with critical safety requirements in New South Wales public swimming pools.
PORT MACQUARIE PRIVATE HOSPITAL OPERATING THEATRE FEES
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [6.4]: On 30th November, 1992, a 15-year-old boy entered a New South Wales hospital for what may now be described as routine surgery. Robert Walker had a lump removed from his breast. He was a day only patient. Robert was admitted at 7 a.m., and at about 8.30 a.m. left the ward to go to the operating theatre. He returned to the ward before 9 a.m. I am pleased to say the operation was successful. Robert and his mother had left the hospital by 3 p.m. the same day. Although confronting a potentially serious condition, the surgery itself these days is relatively routine. Mrs Walker was not expecting any surprises, certainly not on the financial side. Mrs Walker and her family had been covered by HCF for more than 30 years. She was informed by the hospital that she would have nothing to pay after insurance coverage. But so much for the word of this hospital.
Some months later Mrs Walker received a bill from the hospital, which in her words sent shock waves through the family. The total bill was $1,165.00, with HCF's contribution being $504.75. The bill she had to pay amounted to $660.25. Mrs Walker cannot afford this bill. Her family is dependent on social security. Another son is seriously ill with cystic fibrosis. Mrs Walker appealed to the hospital, asking for relief from this bill. What was the response of the hospital? There was a curt letter offering no help, eventually a court judgment, and finally the sheriff was sent around. This was a most humiliating experience for a family that had always paid its bills. The biggest portion of the hospital's bill was for the operating theatre fee. Robert Walker had been charged $925 for a 25 minute operation. That is not the doctor's bill; it is the hospital bill. That is approximately $37 per minute of surgery. That cost is unheard of - even the American hospitals that cater for the super rich would not dare charge that amount.
What hospital are we talking about? None other than Port Macquarie private hospital. This is the hospital run by Health Care of Australia, the company that is set to take over the only public hospital in Port Macquarie. The town will have two hospitals, both run by the same company, a company that obviously charges like a wounded bull. Who runs the health system? Is it the Health Minister, or the Managing Director of Health Care of Australia, Barry Catchlove, who, incidentally, is on the Government's committee to select the new head of the Health Department?
The hospital should acknowledge that it has made a mistake, apologise, and refund to Mrs Walker any moneys that it claims she owes. If the hospital has not made a mistake, it should still apologise, refund the money and take another look at its billing processes and charges. But this hospital has not done any of those things. This matter demonstrates one of the dangers of health privatisation, particularly when there is a private monopoly operating in a country town. The arguments against privatisation have been traversed many times. Privatisation will result in health costs escalating, public patients losing access to services and government losing control over health spending. This is not the only case of this hospital ripping off patients.
A pensioner who refuses to go public was recently admitted to the hospital for a corneal graft, which is an eye operation. She was told by the hospital she would have to pay $80. She was eventually hit with a bill for $280. When she queried the bill she was told by hospital staff that she would have to take the matter up with "the firm". And who is the firm? None other than Health Care of Australia. In this case the pensioner stood her ground and bargained down the bill by $100. What a shameful spectacle. What an horrendous health care system we have when pensioners have to bargain down a bill from the private monopoly running these hospitals. I call on the Minister for Health to directly intervene and relieve Mrs Walker of having to pay this bill.
Mr PHILLIPS (Miranda - Minister for Health) [6.9]: As usual the Deputy Leader of the Opposition is not telling the full story. Mrs Walker should certainly question the motives of the Deputy Leader of the Opposition, because he has a very jaundiced view. The figures are correct. The bill was $1,165 and HCF did pay $504.75, but the truth is that Mrs Walker had private health insurance with HCF and she had insurance with a $500 excess provision. That is the full story about this issue - it is about the problem of private health insurance. I hope the Deputy Leader of the Opposition takes this issue up with the Federal Minister for Health, Senator Graham Richardson, who is trying to get reform in this area. It is the honourable member's side of the party, the left-wing of the Labor Party, that is trying to do everything to scuttle Graham Richardson in his attempt to get genuine reform, because they have a real difference of opinion about this.
Senator Richardson believes in a health system that is mixed between public and private. The Deputy Leader of the Opposition does not; he believes in a totally socialised system. I guarantee Mrs Walker and the people of Port Macquarie that the new hospital that is being built will provide free access for public patients. It will be an expanded public-private hospital, free to patients, because this Government is delivering health care for the people of Port Macquarie. This Government is not grandstanding on this issue, as the Deputy Leader of the Opposition is. He should take up the matter and offer full support to the person responsible for sorting out this insurance problem in Australia and who is trying to do something about it, that is, Graham Richardson. Perhaps the Deputy Leader of the Opposition can speak to the Prime Minister about it. He is trying to cut Graham Richardson off at the knees, rather than allowing him to get on with the job. [Time expired.]
Page 5580
DUNGOG ANNUAL SHOW
Mr BLACKMORE (Maitland) [6.11]: Last weekend, 13th and 14th November, the hundredth annual show was celebrated at Dungog. The first show was held on 13th April, 1887 - 106 years ago. Since then, the show has been abandoned on a number of occasions. In 1919 it was abandoned because of an influenza epidemic. Between 1942 and 1945 the showground was occupied by the Australian Army during World War II. In 1946 and 1947 the show was abandoned because of bad weather. A report of the inaugural show, as printed in the Maitland Mercury on 16th April, 1887, said about the show:
The first annual show in connection with the Williams River Agricultural and Horticultural Association was opened at the Association's ground at Dungog on Wednesday in circumstances, as indicated by telegraph, not altogether cheering to the energetic committee charged with the practiced arrangements . . .
The ground . . . was a grant from Government, obtained at the instance of Mr Brown, the representative of the district . . .
At 12 o'clock, Mr H. H. Brown, MLA, President of the Association, declared the show opened . . .
Stalls were set up in different parts of the ground, where fruit and gingerpop and sweetmeats were sold; and more substantial refreshments were served at the publican's booth, which was conducted by Mr John Sheridan and Mr Robson.
An efficient body of police under Senior Constable Forest, an active, much respected officer, was present and the Dungog Town Band discoursed popular music to the pleasure of the visitors.
There was a very fine show of bloodstock and the entries generally were large.
The ring of blood mares and stallions was excellent and indicated some handsome, well-framed animals, which claimed much attention.
Mr H. H. Brown was not only the local representative but he was also successful with his display of Ayrshire cattle. He had the field to himself, so he scooped the pool of prizes. It is interesting to note that the prizes for wheelbarrow and model farm gate were won by Mr J. W. Holden and that Mr T. Middlebrook was a prize-winner for a hand-powered chaffcutter. I would like to pay tribute to the active committee that gave its service this year for the hundredth annual show, which was opened by the Governor, Rear Admiral Peter Sinclair. The ringmaster was Mr Jamie Mackay, who was ably assisted by Mr Charles Hooke and Mr Peter Dillon. The broadcast and commentary was done by Mr Kevin Smith, a person we did not see. He sat in the commentary box for two days and gave an excellent commentary of all that was taking place. Stud beef cattle were under the efficient direction of Mr Bede Johnson and Mr Keith Lober; commercial cattle under the watchful eye of Dugald Alison; and dairy cattle under the care of Jamie Alison and John Barnes. Dogs were under the watchful eye of Keith McInnes who, for more than 25 years, has run this particular section of the Dungog show and was very proud of the exhibit that contained 324 entries this year.
In the pavilion Mrs Maureen Barnes, Mr Jeff Forster and Mrs Mavis Olsen were responsible. I am amazed when I attend a large country show, such as that at Dungog, to see the excellent exhibits from rural youth, yet such enthusiasm is lacking in other areas. The cakes, home-made plum puddings, sponge cakes and preservatives were tantalising and I am glad that there was a sheet of glass between me and the exhibits. The art show was arranged by Mr Wilf Smith, Jenny Ryan and Elaine Stuart. The showgirl co-ordinator was Mrs Toni Cowan. Last year's showgirl winner, Trish Steel, capably performed her duties over the past year as showgirl and was present this year. This year's Miss Showgirl is Sophie Cooper. The historical research and editorial for the item in the Dungog Chronicle was prepared by Mr Wilf Smith, with photographs supplied by Mrs Shirley Rumbel, Mrs Jean Lowrey and Allan Nash. I congratulate the members of the Dungog Agricultural and Horticultural Association on running a very successful hundredth show in 1993.
Private members' statements noted.
[Mr Acting-Speaker (Mr Rixon) left the chair at 6.16 p.m. The House resumed at 7.30 p.m.]
HEALTH CARE COMPLAINTS BILL
In Committee
Consideration resumed from an earlier hour.
Clause 4
Dr MACDONALD (Manly) [7.30]: Earlier I outlined the nature of medical complaints. I also examined the provisions within the bill for avenues for grievance. I was about to touch upon one of the features of the bill, the parliamentary standing committee. As I understand it, those who are dissatisfied with the outcome of a complaint will have an opportunity to make a direct approach to that committee, probably in the form of correspondence. I should like the committee to take a very active role, and I would be interested, either at this point in the debate or at some later stage in the debate, to hear the Minister's response as to the nature of all the functions of that standing committee. I should like the committee to take a direct interest in activity and in monitoring the types of complaints that are dealt with by the commission, those that are rejected and those that are conciliated.
One needs only to examine the 1992-93 annual report of the Medical Complaints Unit to contemplate the outcomes of complaints received. In 1991-92, of the 1,700 complaints received, about 25 per cent were declined, about 25 per cent were investigated and a report was provided, 21 per cent were referred for direct resolution and about 25 per cent were still under investigation. In 1992-93, about 20 per cent of complaints had reached the point where a report had been written, 20 per cent had been declined, and of the 60 per cent that were still under investigation, a number had been substantiated and some had been referred for direct resolution. In other words, monitoring the outcomes that flow from the complaints unit and, ultimately, the commission will Page 5581 be an important role for the standing committee. It may not act as a direct forum to which complaints can be addressed, but I believe it will have a watchdog role in seeking to monitor the performance of the commission.
The other aspect one has to consider in deciding whether it is necessary to have an independent review panel is the role of the commissioner, who has enormous powers. He will be under the spotlight. The commissioner will be working under an Act of Parliament - which, of course, is different from the existing arrangement - in which the objectives of the commission and the functions of the commissioner are clearly outlined. That prescription of the role of the commission, the role of that parliamentary standing committee assessing the enactment of that particular Act and the work that the commissioner will carry out requires confidence. If there is no confidence in the process, there is no point going down this path. It is unnecessary to have yet another layer of review, another layer of appeal.
It is also possible that such a review panel will become an bureaucratic nightmare. If a review panel were established, it would tend to attract a large number of relatively minor complaints, complaints that are hard to satisfy. I should like to dwell on that for a moment. Members should ask themselves what they are seeking to get out of this commission. That is an important question. Obviously everyone would wish there to be a fair and reasonable handling of all complaints, but the reality and the inevitability of medical complaints - and I spelled this out earlier - is that not every small complaint will lead to satisfaction. Going to a review panel, equally, will not lead to satisfaction.
But what we want to get out of this commission - and I ask members to really focus on this, because it is important that they are not diverted - are the big fish, the ones that really make the mistakes. We want to get the bad apples out of the basket. We never want to allow things like Chelmsford to happen again. It was the nightmare from which this commenced. I challenge any member of Parliament to tell me that a Chelmsford could recur following the establishment of a commission and a standing committee through an Act of Parliament. I do not believe it could.
We want to get the big fish, the health practitioners, the negligent health service providers who make mistakes and risk public health and safety. That is spelled out in a number of places in the bill. I do not seek to allude to every clause, but the bill clearly lays down that complaints that have to be investigated and complaints that cannot be dismissed - for instance where it is likely that a disciplinary matter will follow, in matters of public health and safety and negligence matters - will be dealt with very effectively. That does not mean that all those who make complaints will be satisfied; many will be dissatisfied. But I believe that the prescriptive nature of the bill, the filter system and the manner in which it spells out the processes that have to be gone through from the time the complaint is submitted to the time it is finalised will enable the commission to identify health practitioners who are doing the wrong thing by the client.
A review panel, however attractive it might be - and I am attracted to the prospect and the concept of accountability and appeal mechanisms - will become a bureaucratic nightmare. It will tend to attract the more minor complaints. The Health Care Complaints Commissioner will deal effectively with certain foreshadowed amendments and will deal very effectively with major issues that are brought to his attention. As I said earlier, I am impressed by some of the concerns and wishes of a number of groups that there be an appeal mechanism. I was impressed by many of the submissions, particularly that of the Mental Health Co-ordinating Council, which is very much behind this bill. I was impressed also by the support for the bill by the Schizophrenia Fellowship - which I mentioned in my second reading speech - and the Australian Consumers Association.
Each of those groups give substantive support to vast elements of the bill. I appreciate the sincerity in which a number of them call for an appeal mechanism. The bill provides a well-defined mechanism that will catch the big fish. I am happy to accept that if during the three-year process when a review is to take place it is clear that there is a need for an independent review panel, I would certainly be happy to assess it and support it. At this stage it is unnecessary. It is likely to add an extra layer of bureaucracy, which will not assist in the working of the commission. I am not inclined to support the amendment.
Ms MOORE (Bligh) [7.40]: I support the establishment of an independent review panel. In fact, I intend to move a subsequent amendment that will set up a review panel of a slightly different nature. I will do so because of meetings in which I was involved at which one of the issues raised - fairly passionately by people from a range of groups - was the need for further appeal mechanisms. I believe the review panel will provide those mechanisms. The Australian Labor Party is proposing to establish a panel whose members will be appointed by the Minister - a practitioner, a person who, in the opinion of the Minister, represents health care consumers, and a lawyer. The panel will be able to review decisions made by the commissioner and recommend to the commissioner any action which, in its opinion, should be taken in respect of such decisions. The commission cannot be requested to reconsider its decision.
My amendment will provide for a review panel that will be able to review decisions and, if appropriate, reconsider a complaint on its merits. In addition, my panel will have a different make-up - persons representing the interests of health care providers, persons representing the interests of health service consumers and a person who has an interest in the provision of health services. The commission will be able to request a review of its own decisions. The Page 5582 major differences are: who constitutes the panel; whether the panel can review complaints on its own merits; whether internal review is available; and whether a lawyer should be a member of the panel. The choice between a panel constituted by the Minister and a panel constituted by the commission is a policy decision.
Ministerial control of the review panel could make the panel more independent than the commission. The opportunity for ministerial control of the commission could be created through ministerial intervention in the review process. If the commission is required to appoint members of the panel it would remove the entire health care complaint process from ministerial control. I understand that the desire for a complaints unit independent of the Minister caused the introduction of this bill. The Australian Labor Party amendment does not specifically permit a complaint to be reviewed on its merits. According to the Public Interest Advocacy Centre, merit review is a basic requirement for this review process. I do not support the amendment that proposes to set up the panel, but I foreshadow that I will move an amendment later to set up a different panel.
Mr HATTON (South Coast) [7.43]: I support the amendment moved by the Opposition for a number of reasons. Essentially, the amendment proposed by the Australian Labor Party and the amendment proposed by the honourable member for Bligh are similar. I cannot support the amendment foreshadowed by the honourable member for Bligh because I believe the Minister should have the power to appoint members of an independent review panel. After all, the Minister is the person who is answerable to the Parliament. It is not acceptable for the commissioner to appoint people who will review his decisions. That represents a conflict of interest; it would not look right, nor is it right. If a controversial issue touched upon the Australian Medical Association or medical training at a university the commissioner might not want his decision overturned. Consequently, the commissioner may be influenced, or he could be accused of being influenced, to appoint members to the panel who would suit his purposes.
The Minister is the responsible person. If the Minister appoints people to the panel who are subject to argument, his decision would be subject to debate in the House, which is the way democracy works. I have asked a number of lawyers about the meaning of the word merit. I have been told that cases will be reheard on their merits. The proposed panel cannot really rehear cases. I support the Opposition's proposition for the establishment of a review panel, so long as cases are reviewed on evidence available to the commission at the time. The panel would be able, independently, to look at the paperwork and make a reasoned decision. I suspect that 99 per cent of the time the independent review panel would reinforce the commissioner's decision and strengthen the review process.
I do not believe the panel will regularly overturn the commissioner's decision. If that were the case, it could be claimed that the commissioner was not doing his job, or the review panel had got it wrong. I do not believe that is the way in which the panel will work. I believe that, almost all the time, it will reinforce the commissioner's decision. But, because the commissioner has considerable powers, the proposed panel is a review mechanism. There is a lot riding on a commissioner's decision. Consequently, a review of the commissioner's decision - which is provided for in both amendments - will be a worthwhile addition to the bill. I support the Opposition's amendment.
Mr PHILLIPS (Miranda - Minister for Health) [7.45]: The proposed independent review panel has resulted in consultation over a number of months with a range of groups involved in this area. The Government rejects the proposal as it would create an independent commission for complaints. The complaints unit is being moved from the Department of Health and being placed in an independent commission. There are more security blankets around this independent commission and its reporting requirements than there are around the Independent Commission Against Corruption, the Ombudsman, or the Director of Public Prosecutions. The establishment of an independent review panel would be a bureaucratic nightmare. The Government is taking a huge step by creating an independent commission and giving every aggrieved party an opportunity to appeal to another body.
Members of the Opposition believe that an independent review panel will not need resources - it will be cheap to run - and that such a body would be able to review complaints made by aggrieved people. Those people get advice from the complaints commission, which has already reviewed their cases. There is provision in the legislation for cases to be reviewed. If aggrieved parties want their cases looked at again, they can appeal. Their cases will be reviewed and, if the decision is the same, they could have their cases reviewed by an independent review panel. That panel cannot make an independent assessment until it has all the structures and resources in place, or will it get its advice from the complaints commission? We have to draw the line at some point. The Opposition's silly proposal could lead to the establishment of another panel or parliamentary committee to review the review panel. Where do we draw the line?
We have drawn the line in major criminal matters that are dealt with by the Independent Commission Against Corruption and the Office of the Director of Public Prosecutions. People have no appeal process except through the courts. This proposal will mean that, if people do not like a decision made by the complaints unit, they can ask for a review and, if they do not like that decision, they can appeal to the courts. Fair dinkum! How many stages will we take people through - people who are aggrieved and hurt - in order to obtain some sort of satisfaction? This proposal goes too far. An Page 5583 aggrieved person can go to a member of Parliament. The independent commission will report to the Parliament and a parliamentary committee will oversee the commission. We have to draw the line somewhere. As Minister, I am gravely concerned that the Department of Health will have to fund this independent review panel. The establishment of an independent commission has been agreed to by a large number of parties after a difficult consultation process. The Opposition now wants to establish another body. The Government opposes its proposal.
As the Deputy Leader of the Opposition indicated, it is not a Labor Party plot. I agree with that; I do not believe this is a Labor Party plot or a political matter. It is merely bad legislation to create extra bureaucratic levels - to obtain what result? What will we really gain? Will we use our resources, as the honourable member for Manly said, to catch the real crooks, the baddies, those in the medical profession who should be caught. We already know about the delays in the complaints commission because of the difficulty of pursuing complaints. If more levels are added, additional resources will be required and further delays will occur. People would not benefit from this process.
If the Government is wrong, the committee of the Parliament will monitor the results from the complaints commission over the next two to three years. The review process, which is part of the legislation, will ascertain if it is going well or if it is flawed. However, at this point of the process the Government does not believe there should be an extra bureaucratic level because it would have to be funded, it would cause substantial delays, and it would not add to the process. It is not required under the Ombudsman Act, the Independent Commission against Corruption Act, or the Director of Public Prosecutions Act. It is not required under the bill that passed recently through this House relating to consumer complaints. Why should it be required in the health area; why is that so different from anything else? The Government is breaking new ground. Let us give it a go and see where it gets us. The Government opposes the amendment.
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [7.52]: The Minister asked what the amendment will achieve. It will achieve a greater degree of confidence in the commission. Major consumer groups that the Minister has consulted and that he says support the bill are asking for an independent review panel. The Minister is already trying to undermine that panel. The Opposition is trying to make it work and to get it off the ground in a way that will have bipartisan confidence. As the Minister pointed out, that is essential for it to work in the long term as well as in the short term. The Government's own consumer advisory groups are saying that they want an independent advisory panel so they can have the extra confidence. Those who do not agree with the legislation are also asking for the review panel.
The Government should allow the review panel to be established to restore confidence in the legislation by a number of groups. Some groups have supported it, some groups have opposed it, and some groups are not interested in it, but they are all concerned to ensure that any review panel established works. The honourable member for Manly asks why there should be appeals in this system. Does he accept that an Administrative Appeals Tribunal is needed in this State, as is Labor Party policy? If he accepts it, will he say the Administrative Appeals Tribunal will not look at this commission? I regard an Administrative Appeals Tribunal as a real charter of reform, but the honourable member for Manly thinks it has gone far enough, that there have been enough appeals and enough views.
The honourable member for Manly should consider his position. He says the Administrative Appeals Tribunal can look at everything else but not at the complaints commission. The Minister says that the Labor amendment allows the complaints commission to consider a matter twice before it is referred to the Administrative Appeals Tribunal. The Opposition is saying the complaints commission should not review the first decision. Its time should not be wasted in that sense; decisions should be sent straight to the independent review panel to determine whether the complaints commission needs to review them.
The Minister asks where the resources and expert advice will come from. I am not asking for expert advice; I am saying that three people - not experts - should consider the facts. The Government has spent so much money on consultants - about which the Opposition has complained - that I would not suggest bringing in more consultants. I am suggesting three people - one with a consumer perspective, one with a legal perspective and one with a health provider perspective - should review what the complaints commission has considered and form a view. That view might be the same, or it might be different.
The Minister might consider some complaints from his own electorate, as I have done when people have told me they are not happy with a decision of the complaints unit. In many cases I believe the complaints unit has made the correct decision, but occasionally it has not been hard enough; it needed to do more. I have often written to the Minister about it and to the complaints unit itself.
Dr Macdonald: Provide the details.
Dr REFSHAUGE: I do not think it is appropriate to provide the details as it would be easy to identify people. I would prefer to discuss it privately. The honourable member for Manly should also realise that sometimes the decisions of the commission or the complaints unit could have been more effective. That is not a reflection on bad practice or an attempt to denigrate the complaints unit. A second view can shed new light on how a matter might be better handled to obtain a better result. The Minister asks why there should be three bites of the Page 5584 cherry. I am not asking for three bites of the cherry, I am asking for two, but I am saying a different group should look at it rather than the same group.
I am not asking for extra resources; I would be asking the new independent review panel to consider what the complaints commission considered and form its own view about whether its conclusions and subsequent recommendations are appropriate or whether the matter could have been handled in a different and more appropriate way. I have the same views as the Minister, but I am trying to give the commission greater credibility and greater respect with consumer groups in the State that the Minister has consulted and highlighted, and greater credibility with the consumer groups who are aggrieved that they have not been consulted. They believe this would be a better way to go, and an improvement to the administrative processes in this State.
The honourable member for Manly does not believe the Administrative Appeals Tribunal should hear appeals from the complaints commission though it should consider appeals from similar tribunals. I urge the Minister to rethink his position. What I propose will not be expensive. It will not involve an additional review. There will be two reviews, but that will give greater credibility to the commission. The Minister should not undermine his own proposal by rejecting this amendment. Go for what will be eminently supported and cheered throughout the State. The Minister has never accepted an amendment I have put forward.
Mr Phillips: That is nonsense. That is a lie, a dirty lie.
Dr REFSHAUGE: In this House the Minister has never accepted an amendment. Break the rule.
Mr Phillips: You liar.
Dr REFSHAUGE: Start a new model, turn over a new leaf and accept this amendment.
Mr HATTON (South Coast) [8.0]: I should make what I believe to be a valid and telling point. Many people who come before tribunals have limited resources. This amendment will give them an opportunity to have decisions reviewed. Of course they can go before a court, but if they do so they will be up against powerful people with much greater financial means and they will face a difficult task. The amendment will satisfy 100 per cent of complainants if they are able to have their decisions reviewed, on the evidence, by a panel.
Mr PHILLIPS (Miranda - Minister for Health) [8.1]: I hear what the honourable member for South Coast says, but I disagree with his predicted outcome. Before one goes through an appeal process one must be assured of getting an improved outcome, bearing in mind the trauma and additional cost involved. Putting in extra steps all the way will prolong the difficulty for people on lower incomes. The honourable member for South Coast and the Deputy Leader of the Opposition spoke about a greater degree of confidence in the complaints commission. Have we lost confidence in the Independent Commission Against Corruption or in the Director of Public Prosecutions? Have we lost confidence in the Ombudsman? Have we lost confidence in the Consumer Claims Tribunal? That is what honourable members were speaking about when they referred to an additional step.
This legislation will be a new step forward. Another concern of mine is that the amendment would establish a body that would have greater authority than the complaints commissioner and will review decisions on appeal. Over a period of time the panel would become a group of three people, like a mini board, that would have power over the complaints commissioner. The commissioner will be aware that every appeal that is lodged will go to a separate group of people. That precedent was rejected by the Government and others. As I said, it does not happen in other areas. The Government will continue to strongly oppose the amendment. I am concerned about the process involved in moving the amendments, of which there are a substantial number.
The Government will accept minor changes, but it cannot agree with a procedure whereby, after a year of consultation at arm's-length, the Public Interest Advocacy Centre writing to 70 organisations and negotiating an agreement, the proposed legislation is brought before the House after consultation with the various medical professional bodies - the Australian Medical Association, the various colleges, the Medical Services Committee, the other professions such as dentists, nurses, and podiatrists - and the various consumer groups, an agreed position is reached. That process involved a sensitive negotiation of balance and fairness. Now the Deputy Leader of the Opposition is seeking to give everyone a second bite of the cherry. That will lead to an imbalance in the outcome of the negotiations that occurred throughout this difficult consultation period. Let me remind honourable members of the letters written by those who have been involved in the process and want to give this legislation a go. First I refer to the AIDS Council of New South Wales:
The AIDS Council today called on all parties in Parliament to expedite the debate on and passage of the Health Care Complaints Bill due for debate next week.
Later on that council's letter said:
The bill contains legislative provision for formal review of its operations within three years. Let's get it up and working and fix what we need to, rather than just talk about it three years later.
The Australian Consumers Association, not a lightweight body, said:
The New South Wales Health Care Complaints Bill has been tabled in Parliament and it spells good news for consumers. On the whole we believe it deserves bipartisan and community support.
The Medical Services Committee, an organisation that represents the medical profession, not consumers, also supports the bill. The Public Interest Advocacy Centre has the most difficult task of taking the disparate views, including those of the Government, and moulding them into a balance, and it supports the Page 5585 bill. The Government has had to make concessions along the way. Now that all of these matters have been brought before the Parliament it is suggested that none of it matters and that everyone should be given a second bite - forget the compromises. That will drag the Government even further and make the consultation process even more difficult.
Mr Hatton: That is what Parliament is all about.
Mr PHILLIPS: I do not question that Parliament has a role to play in reviewing proposed legislation. However, the substantial number of amendments that will be moved will make dramatic changes to the structure of roles and responsibilities. Basically that will mean that the process leading to the introduction of the bill was a waste of time. Ministers will find it extremely difficult to consult in the future when they realise that having consulted and introduced legislation to the Parliament, the Parliament will change the legislation and decide what should happen. Why consult the community?
The Government introduced a bill last year. At that time concern was expressed about its provisions. That bill could have been introduced and dealt with by the Parliament and the brawls we are having now could have occurred then. The Government decided not to do that. It decided instead to go to the community and have an arm's-length consultation process with all of those involved in this difficult area. Having done that, we now are having the same brawls that we could have had 12 months ago. That corrupts the process and makes it extremely difficult for those who want broad community consultation. The Government gets dragged into negotiations and makes compromises, then in the Parliament it gets forced into making further changes. That is not a satisfactory system. The Public Interest Advocacy Centre said:
We believe that significant changes have been made in a number of areas, in particular in areas which are fundamental to a proper health complaints system.
The PIAC supports what the Government is doing. It has made compromises also, as have the parties it represents. The Association of Mental Health on 16th November wrote and said, "We are now able to support the introduction of the bill". The Mental Health Co-ordination Council supports the measure also. The list goes on. The Government knows those groups agree with the bill, but now Parliament will change substantial policy positions in the bill - not minor changes that make the legislation work better, but substantial policy positions. That comment applies in particular to later amendments that would dramatically change the powers of the commissioner. The Government opposes this amendment.
Ms MOORE (Bligh) [8.10]: We are dealing with a specific amendment relating to the independent review body. This particular amendment was recommended by the Public Interest Advocacy Centre and groups which expressed concern about the lack of an independent review. They include the Australian Cardiac Association, the Medical Consumers Association and the PIA consensus group. Though they support the bill, they would prefer it to be taken further. That is the reason for the Opposition and me putting forward proposals for such a review body.
Mr HATTON (South Coast) [8.11]: I was flabbergasted by the comments of the Minister.
Mr Phillips: That is because you want to be judge and jury of everything, John.
Mr HATTON: And I am even more disappointed by the interjection. The Government must be given considerable credit for the consultation process. Out of that consultation process arises certain agreements. Those agreements are influenced by the policy of the Government of the day; they are not clinical. The policy of the Government of the day, plus what has been agreed to by consultation in the community, comes before the Parliament. It is then the duty of Parliament to consider that meld and to add to that process. To suggest that it is somehow an inconvenience and that it is fundamentally wrong for the Parliament to exercise its right - indeed it is the sworn duty of every member of Parliament to contribute to the making of laws and not to put forward amendments because it will lead the Government further away from its policy - is an amazing statement of the philosophy of the Minister or the Government on how the parliamentary system should work.
The Minister's statement is mind boggling. The way the Parliament is functioning now is the way the Parliament was always designed to work until we reached the stage of Executive Government becoming the judge and jury and the Parliament being marginalised. Unfortunately for the Minister, democracy happens to reign in this particular Parliament. There will not be a second review because the matter will be reviewed by the commissioner who made the decision in the first place. There will not be a third review because clause 65 specifically excludes the parliamentary committee from carrying out such a review. Clause 65(2) states:
(2) Nothing in this Part authorises the Joint Committee:
(a) to re-investigate a particular complaint; or
(b) to reconsider a decision to investigate, not to investigate or to discontinue investigation of a particular complaint.
Those people are screened out of the process. The person who feels aggrieved will have to return to the same arbitrator who brought down the decision in the first place or must face great expense by taking the matter to court. All we are asking for is an independent panel of three people to look at the papers and review the process. That is not an unreasonable position to take.
Mr PHILLIPS (Miranda - Minister for Health) [8.14]: The Deputy Leader of the Opposition stated that the Government had not accepted any of the amendments. The consultation process has been going on for over a year, yet the goal-posts are constantly being moved, making it difficult to reach Page 5586 agreement. For example, the bill was first introduced a year ago. In that year the Government accepted four major amendments from the Australian Labor Party. In the past few days the goal-posts are being pushed even further.
Ms Moore: That is the process.
Mr PHILLIPS: The honourable member for Bligh knows that I did not want to introduce the bill until there was agreement that would obviate the need to thrash out matters in the Parliament in order to reach a balance. The Government had to consult the groups that are affected by the changes - that is important. However, a week or so ago the matter was discussed, agreement was reached and the bill was introduced. Now the goal-posts are being substantially shifted - as has been the case for three years. It is not a case of fine-tuning. I refer to the four major amendments agreed to by the Government. The first is that now anyone can make a complaint; the second is the joint parliamentary committee; the third is the broadening of the power of the commission to investigate health systems; and the fourth relates to special reports to Parliament. The Government accepted those, yet in the past few days the goal-posts have been shifted again. That is not a satisfactory way in which to deal with the matter.
The amendment moved by the ALP is substantially the same as those proposed by the honourable member for Bligh. The only difference is that the ALP amendment requires the Minister to establish the review panel. The honourable member for South Coast agrees with that, but does not agree with the honourable member for Bligh. However, this compromises the review and complaint process even further than the amendment of the honourable member for Bligh. Clearly, in many complaints the health system will be a party to the complaint. The Minister will then be placed in conflict because the people on the review panel will be my appointees, yet they will be investigating health systems complaints. This will result in conflict.
Mr Hatton: You are answerable to the Parliament.
Mr PHILLIPS: That is right. But the process now being conducted in this Chamber creates a difficulty for Ministers in the performance of their duties. An Act or policy that allows someone to fall in a trap later down the track should not be created, and that is an important point. Further, it must be emphasised that the process will provide health service providers with another mechanism for further delaying investigations by the commission and, therefore, any action which may be taken as a result of such an investigation. For example, under the proposals of the honourable member for Bligh once a review is requested the commission would be prevented from taking any action until the review was resolved. The ALP amendment does not designate any time periods, opening up the possibility for even further delays. That is the difficulty in making amendments on the run, as we are doing tonight - and this is after three years of going through the process! The Government continues to oppose the amendment.
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [8.18]: Unfortunately, the Minister still has not got the point and does not understand what is happening. When I said that the Minister never accepts any of the ALP amendments, I was referring to amendments moved in the Chamber. In respect of the original bill 34 amendments were suggested. I think the Minister is underestimating his own support for my amendments. Of the 34 proposed amendments, 11 were rejected out of hand, three or four were partially accepted and about 20 were actually accepted. So, yes, there was acceptance of what was then suggested. If the Government at that time had wished the bill to be passed, the Minister would not have agreed to the amendments, because he is not prepared to move from the position he holds when he enters the Chamber. That is the big problem.
All I am asking the Government to do is to give it a go. Democracy may actually work and the commission will be given greater credibility. The Minister persists in saying that my amendment will add extra review time. The Minister should read the amendment. If he does, he will know that will not happen. The Minister says that my amendment and the amendment of the honourable member for Bligh are essentially the same. My amendment provides for the Minister to set up the panel; the amendment of the honourable member for Bligh provides for the commissioner to set up the panel. Again the Minister has got it wrong. Is it any wonder he will not accept any amendments? The Minister relies on his "Yes, Minister" people to tell him what to say.
The Minister should take a more personal interest in the bill and guarantee that his input and concern for consumers will provide greater credibility. This amendment and subsequent amendments will give the commission more credibility. As the honourable member for Manly has said, it will not allow those people, some of whom will never be satisfied, to keep targeting the commission as the problem. The Minister would be setting up a different panel each time and, therefore, it would not be one person targeting all of the problems. If it does not work, we can review the legislation, or the parliamentary committee can say that there is no point in continuing. I tell the Minister this: If it does not happen now, it never will. The impetus to get this panel up and going will diminish if a series of problems undermine the confidence -
Mr Phillips: Why do you not deal with the community services complaints bill?
Dr REFSHAUGE: The lobby groups did not want it included at the time. The consumers now want this provision included.
Mr Phillips: Everyone keeps shifting the goal-posts. Next week it will be something different.
Dr REFSHAUGE: The Minister thinks the world stands still, but it actually moves. There is a difference from last year to this year. A few things have actually eventuated. Though the complaints unit Page 5587 has been working hard over the past year on many worthwhile things the Minister is saying we should not worry about that; let us forget what they have done; let us ignore what the department is doing; let us ignore the changes in the way health services are provided. If the Minister had his way, we would be stuck in the 1940s, because he believes we must not change anything. The world changes, times change, new things come into focus and a better way can be seen. I am offering the Minister a better way. I suggest the Minister takes that offer.
Dr MACDONALD (Manly) [8.22]: The debate has become interesting. It not only deals with the merit of a particular proposal of the Deputy Leader of the Opposition but also examines how to achieve a good outcome for the proposed legislation. I believe the Minister, to some extent, did make a mistake in his assessment of the parliamentary process. Benefits will flow to the community from the input to this landmark legislation by community groups and members of Parliament over the past 12 months. I concede that difficulties will arise when one tries to design a process such as the establishment of an independent review panel in half an hour.
Neither process of establishing the panel is likely to be satisfactory. If the commissioner establishes the panel, it will become his baby and he can be accused of bias. If the Minister establishes the panel, we will be moving back down the track that brought us to this point - Chelmsford hospital and the Minister for Health not taking necessary action. It is not appropriate that the Minister should have influence on that panel, nor should the commissioner. So, what do we do? Who should establish the panel? The Deputy Leader of the Opposition says that the panel will strengthen the role of the commissioner. In a sense that is right, but it may erode the powers of the commissioner.
The commissioner is constantly under attack by those who are disgruntled and who do not have a great deal of merit in cases involving complainants who repeatedly go to the panel. This process may work the other way; it may backfire. The Minister asked whether the panel could be abused by powerful people? The powerful people are likely to be the subject of a complaint. We have to examine carefully whether the opportunity would arise where such a panel could be abused. Once again the financially strong will benefit rather than the weak. I ask the Minister to carefully consider these matters.
Mr PHILLIPS (Miranda - Minister for Health) [8.25]: Much of the argument has centred around what various groups want. Throughout the negotiation process, which was a very difficult, detailed, complex and time-consuming process over many months, everyone agreed that the final position of PIAC, as reported, was to defer consideration of the independent panel until it was established whether the review process works. That was the result of the consultation process with the community groups. So, we have not come to the Parliament saying that we have reached a stone wall. The agreement is that the best position at the moment is to get the commission up and running and see where we go further down the track in that review process. For those reasons the Government opposes the amendment.
Question - That the amendment be agreed to - put.
The Committee divided.
Ayes, 44
Ms Allan Mr Martin Mr Amery Mr Mills Mr Anderson Ms Moore Mr A. S. Aquilina Mr Moss Mr J. J. Aquilina Mr J. H. Murray Mr Bowman Mr Nagle Mr Clough Mr Neilly Mr Crittenden Mr Newman Mr Doyle Ms Nori Mr Face Mr E. T. Page Mr Gaudry Mr Price Mr Gibson Dr Refshauge Mrs Grusovin Mr Rogan Mr Hatton Mr Rumble Mr Hunter Mr Scully Mr Iemma Mr Sullivan Mr Irwin Mr Thompson Mr Knowles Mr Whelan Mr Langton Mr Yeadon Mrs Lo Po' Mr McBride Tellers, Mr McManus Mr Beckroge Mr Markham Mr Davoren
Noes, 44
Mr Baird Mr D. L. Page Mr Beck Mr Peacocke Mr Blackmore Mr Petch Mr Causley Mr Phillips Mr Chappell Mr Photios Mr Cochran Mr Richardson Mrs Cohen Mr Rixon Mr Cruickshank Mr Rozzoli Mr Downy Mr Schipp Mr Fraser Mr Schultz Mr Glachan Mr Small Mr Griffiths Mr Smiles Mr Hartcher Mr Smith Mr Humpherson Mr Souris Dr Kernohan Mr Turner Mr Kinross Mr West Mr Longley Mr Windsor Dr Macdonald Mr Yabsley Ms Machin Mr Zammit Mr Merton Mr Morris Tellers, Mr W. T. J. Murray Mr Jeffery Mr O'Doherty Mr Kerr
Pairs
Mr Carr Mr Armstrong Mr Harrison Mrs Chikarovski Mr Knight Mr Collins Mr Shedden Mr Fahey Mr Ziolkowski Mr Hazzard
Page 5588
The TEMPORARY CHAIRMAN (Mr Tink): There being 44 ayes and 44 noes, I cast my vote with the noes and declare the question to have passed in the negative.
Amendment negatived.
Clause agreed to.
Clause 8
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [8.36]: I move:
Page 5, clause 8, lines 13-21. Omit all words from and including the word "including" on line 13 to the word "Minister" on line 22.
The amendment will make clearer this clause of the bill. The bill states that any person may make a complaint, including "in particular the following". It then lists a range of people who can make complaints; the client concerned, a parent or guardian, a member of Parliament, the director-general, a Minister, et cetera. Why are these groups set out in the bill? Are they more important than other persons? Why not merely state, "anybody can make a complaint"? That is pretty clear. In common law any person includes an organisation, corporation - anybody can make a complaint. Why fill up the bill with more words? Why are these people so special? Are they going to get a different hearing in the complaints commission? According to the provisions of the bill they will not, but nevertheless they are highlighted. Why does not the Minister say what he means? The wording should remain as "any person may make a complaint", and the redundant words contained in the bill should be deleted. They are confusing and undermining words.
Mr HATTON (South Coast) [8.37]: I ask the Minister to consider the amendment. As I understand it, if the words are specific they may be interpreted as being limiting, whereas if it is stated say "any person may make a complaint", it simply means that. It is easily interpreted and people cannot be excluded.
Mr PHILLIPS (Miranda - Minister for Health) [8.38]: The intent is to make it clear. It is much easier to clarify particular examples of what the provision applies to than to use the words "any person may make a complaint". In no way does the wording of the clause preclude any person. It states, "A complaint may be made by any person including, in particular, the following". These people have a particular interest in the complaints process so the clause includes the words "in particular". It applies in particular to a client concerned, a parent or guardian of a client concerned, a person chosen by the client concerned, et cetera. It applies also in particular to a health service provider, a member of Parliament, the director-general or a Minister, or anybody else. Obviously health care complaints involve these particular types of people. The Deputy Leader of the Opposition feels that the words will cause confusion. Certainly the Government's intent is otherwise. The new wording is more specific about the types of people the provision relates to. It does not exclude anybody. The Government sees no reason for this change as it believes the position is clarified in the bill.
Mr ROGAN (East Hills) [8.40]: Once again I ask the Minister to clarify this. After all, under the Interpretation Act what is said in this Parliament is considered by the courts in interpreting the legislation. If down the track a person who is not one of those defined in clause 8 were to make a complaint, what class of person would be covered? I know the Minister believes he has clarified this but I would like him to put it clearly on the record, that "any person" means simply that, and that although defined persons are listed in the clause, that of itself does not limit those who can make claims.
Mr PHILLIPS (Miranda - Minister for Health) [8.41]: I can give that assurance to the honourable member for East Hills. The key word at the beginning of the clause is "including". It precludes no one. A complaint may be made by any person, including, in particular, the list that is set out. There is a list but it means everyone, though it clarifies the main people to be affected. I am more than happy to put on record that that is certainly the intention.
Amendment negatived.
Clause agreed to.
Clause 12
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [8.42]: I move:
Page 6, clause 12, line 15. Omit "Before", insert instead "After assessment and before".
In passing I make reference to previous clauses to acknowledge again that the Minister has taken on board what I suggested earlier - that is, that instead of having to consult with registration boards a number of times at every stage, that should relate to notifying rather than consulting. In fact, consultation can occur when it should occur, but not at every step of the way. I thank the Minister for accepting that amendment, particularly in relation to clause 10. But, with clause 12 the concern I have is to some extent minor - that is, to make it very clear that any consultation that occurs with the registration authority occurs after assessment.
The way this clause is written means consultation can occur before assessment. If the Minister has taken on board my concerns that the process, from the beginning, should not be seen to be muddied by a consultation process with the registration authority putting its view in before the matter is assessed by the commission, it seems to me that it should be made very clear that the assessment has to have occurred before consultation. If that is not the case, there could be the perception, and in fact the reality, of the professional body undermining the way in which the assessment is carried out. I do not believe that is the intent of the legislation but there is nothing in the bill that would stop consultation occurring before the assessment. For that reason I strongly urge that the Government accept this amendment, which I believe to be no different from amendments already accepted through the consultative processes it has undertaken with various interest groups. I cannot believe that Page 5589 such groups would say they were opposed to this amendment. I submit that it should be made specific that we all want the words that are in the legislation.
Mr PHILLIPS (Miranda - Minister for Health) [8.45]: The Government will not support the amendment for this reason: the proposal adds nothing to the bill and, in particular, the mechanisms for consultation have been extensively aired with the registration board. That has been an extensive consultative process. The words in the bill are the result of the boards' and the relevant associations' supporting the inclusion of those words. For that reason and on the basis that the proposal adds nothing, and the consultation process has come up with the words in the bill, I prefer to leave it as it is.
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [8.46]: That explanation reveals the absolute blindness of the Minister. Why does the Minister never want my amendments? He has bucketed me, saying he never gets my amendments. There is no point in his getting my amendments if he will never accept one of them. Why ask for the amendments? The Minister has his minders take the amendments to the department in order to provide him with some briefing notes so that he might sound intelligent. The Minister has not understood this bill. He said my amendment adds nothing to it. I have tried to tell him where it makes some change in order to give the same result that people on his behalf have been negotiating for. But the Minister is scared. He has no idea what the bill is about and, in case these words are a trick for some reason or another, he will not move from the words that the Australian Medical Association has given him. For goodness' sake, Minister, have some sense! Listen to what I am saying.
This amendment seeks to make very clear what everyone has agreed to. The Minister may not understand this bill but perhaps his minders will send him a note to say that this is a worthwhile amendment. It will make it very clear that consultation occurs after assessment. Were the Minister to read the bill, he would know that that is what is supposed to happen. However, the way the bill is worded does not guarantee that. Why is the Minister so blind? Why is he so scared that he is not willing to accept this minor amendment that would guarantee what everyone wants? Please, Minister, try not to be so scared about making some minor change to the words in front of you.
Dr MACDONALD (Manly) [8.47]: It is going to be a long night if we are to argue over these things. I would have had real concerns about this clause if it read as follows, omitting some parts:
Before determining whether to investigate . . . the Commission must consult with the Australian Medical Association, Australian Dental Association . . .
In other words, I would be concerned if the clause were to include the bodies associated with and likely to be the defenders of the health providers. The registration bodies are unlikely to be the ones who would try to influence the commissioner not to investigate a complaint or to follow it up, where appropriate. The average medical practitioner would have a great deal of respect and live in some fear of the Medical Registration Board. The amendment is merely to ensure that before determining whether to investigate there must be consultation with the registration board. I believe we have nothing to fear from the amendment. It would be unfortunate if it went to the wire but, if that is the case, so be it. However, if this is a matter on which the Minister has consulted with the registration boards - not with the profession or the profession's own bodies but with the registration boards - and this is the form of words they prefer, perhaps the Minister needs to tell me clearly why it is that there should not be any assessment before that consultation process. If the Minister can satisfy me on that, I would accept his position.
Mr PHILLIPS (Miranda - Minister for Health) [8.49]: I am taking the line that I will accept amendments if they will add to the legislation. The Government is accepting a number of amendments to move the process along. In so doing, the Government is endeavouring to protect the integrity of the bill as much as possible. As I indicated clearly, this proposed amendment was the subject of a significant consultation process with the registration boards and it adds no more to what the process is about. On that basis I see no reason to change the legislation.
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [8.50]: I am confused by the Minister's statement that he will accept amendments that add to the process but will not accept amendments that do not add to the process. His argument was the opposite with regard to the previous amendment. Is he going to change his position on each amendment? This amendment does add the certainty that the commission is not undermined in its assessment. I am sure the registration boards would have no problem with the amendment. The registration boards would want it that way. The amendment will insert what the boards want in the legislation. On advice from the Parliamentary Counsel they trust us to get the words right. The Government should get it right.
Dr MACDONALD (Manly) [8.51]: I am not necessarily satisfied with the Minister's answer, and I should like to ask a couple of questions. Why should the commission not make an assessment of a complaint before consulting with the appropriate registration authority? What is the risk in undertaking that assessment?
Mr PHILLIPS (Miranda - Minister for Health) [8.51]: It is quite obvious from the Act that the commission must investigate any matter if directed to do so by the board. If that is clear, why change it? In a serious matter it would be appropriate for the board to exercise its power at the time the complaint is made to ensure there is no delay in the assessment. That is another reason for not making a change. The main reason, obviously, is that the commission must investigate if so directed by the board.
Page 5590
Question - That the amendment be agreed to - put.
The Committee divided.
Ayes, 44
Ms Allan Mr Markham Mr Amery Mr Martin Mr Anderson Mr Mills Mr A. S. Aquilina Mr Moss Mr J. J. Aquilina Mr J. H. Murray Mr Bowman Mr Nagle Mr Clough Mr Neilly Mr Crittenden Mr Newman Mr Doyle Ms Nori Mr Face Mr E. T. Page Mr Gaudry Mr Price Mr Gibson Dr Refshauge Mrs Grusovin Mr Rogan Mr Hatton Mr Rumble Mr Iemma Mr Scully Mr Irwin Mr Sullivan Mr Knight Mr Thompson Mr Knowles Mr Whelan Mr Langton Mr Yeadon Mrs Lo Po' Mr McBride Tellers, Dr Macdonald Mr Beckroge Mr McManus Mr Davoren
Noes, 44
Mr Baird Mr D. L. Page Mr Beck Mr Peacocke Mr Blackmore Mr Petch Mr Causley Mr Phillips Mr Chappell Mr Photios Mr Cochran Mr Richardson Mrs Cohen Mr Rixon Mr Cruickshank Mr Rozzoli Mr Downy Mr Schipp Mr Fraser Mr Schultz Mr Glachan Mr Small Mr Griffiths Mr Smiles Mr Hartcher Mr Smith Mr Humpherson Mr Souris Dr Kernohan Mr Tink Mr Kinross Mr West Mr Longley Mr Windsor Ms Machin Mr Yabsley Mr Merton Mr Zammit Ms Moore Mr Morris Tellers, Mr W. T. J. Murray Mr Jeffery Mr O'Doherty Mr Kerr
Pairs
Mr Carr Mr Armstrong Mr Harrison Mrs Chikarovski Mr Hunter Mr Collins Mr Shedden Mr Fahey Mr Ziolkowski Mr Hazzard
The CHAIRMAN: The numbers being equal, I give my casting vote with the noes and declare the question to be resolved in the negative.
Amendment negatived.
Clause agreed to.
Clause 16
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [9.1]: I move:
Page 7, clause 16, line 27. Omit "On", insert instead "Within 14 days after".
This amendment would not make a major change to the legislation, but it is an attempt to ensure that the process is speeded up. We could have requested seven days to make this administratively possible and a bit more specific. The amendment will place an onus on the commission to ensure that written notice of the making of a complaint, the nature of the complaint and the identity of the complainant is given to the person against whom the complaint is made. This is not a massive change but, as I have said, it places an onus on the commission not to delay notifying the person about whom the complaint is being made. In our rush to ensure that consumers get a fair go we also should ensure that those against whom complaints are being made get a fair go. I hope this amendment will facilitate that process.
Mr PHILLIPS (Miranda - Minister for Health) [9.2]: The Deputy Leader of the Opposition said that he hoped this amendment will facilitate the complaints process. The Government agrees that the amendment will ensure a reasonable time frame within which to notify a person against whom a complaint is made. This should be clarified in the bill. The Government supports the amendment.
Amendment agreed to.
Clause as amended agreed to.
Clause 18
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [9.3]: I move:
Page 8, clause 18, line 24. After "practitioner", insert:
; or
(d) the matter involves negligence on the part of a health practitioner.
I thought an amendment such as this would not have been required. I remember informing the Minister of a case last year where it was deemed that negligence was not professional misconduct. However, that is rare. I do not understand how negligence cannot be termed professional misconduct, but there are examples in case law. We are not proposing that the commission should be a compensation court or anything like that, but it seems to me that negligence ought to be grounds for investigation. I will be moving amendments similar to this amendment later. The amendment will add some symbolism, but the most important aspect about it is that case law provides, in some instances, that negligence is not to be regarded as professional misconduct. This amendment should not be confused with amendments proposed to clause 23 and other clauses. I urge the Government to accept it.
Page 5591
Mr PHILLIPS (Miranda - Minister for Health) [9.5]: The Government does not accept the amendment because it will substantially change the role and responsibility of the commission. I am advised that medical negligence is part of the civil law of negligence. Negligence is a tort involving breach of duty of care to another person, causing damage to that person. Medical negligence is the term used where such breach occurs in providing medical treatment. The person who suffers damage as a consequence of the negligent act of another has the right to sue that person for damages in a civil court, and professional misconduct is conduct which falls within the definition of professional misconduct under relevant health professional registration legislation. It is a disciplinary matter under such legislation and can involve sanctions from reprimand up to deregistration, depending upon the seriousness of the misconduct.
The same set of facts, that is, the same conduct, can constitute the civil tort of negligence, in which an individual may sue for damages in the civil court, and professional misconduct, in which case the offending health professional may be disciplined under the relevant legislation. The Health Care Complaints Commission will be able to investigate conduct which may be both negligent and professional misconduct. However, it is a matter for the person aggrieved by such negligence to take civil action for damages, though the commission will have the prosecutorial function in appropriate disciplinary proceedings for professional misconduct under relevant health professional registration legislation. Nothing in the bill prohibits a person from taking civil action for damages and making a complaint to the commission at the same time. In fact, clause 95 of the current bill specifically empowers the commissioner to continue to exercise his functions concerning a matter despite the commencement of legal proceedings in relation to that matter. It would not be appropriate for the Health Care Complaints Commission to move into this area of negligence. The existing structure is more appropriate.
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [9.7]: It appears that the Minister is reading from notes rather than listening to what is being said in debate.
Mr Phillips: Especially in legal matters.
Dr REFSHAUGE: What the Minister has said is fascinating, but it has nothing to do with the amendment. The Minister said that there was nothing in the bill to prevent people from going to court, but my amendment has nothing to do with that. It was nice of the Minister to say that and to take up the time of the Committee. I might do an exposition later on something that is irrelevant to a clause or an amendment. Twelve months ago I referred a case of negligence, which was not seen as professional misconduct, to the Minister's department. That case has nothing to do with compensation requirements. No mention has been made of compensation for damage resulting from negligence, but professional misconduct or negligence must be investigated.
If, as the Minister has said, there is an issue of compensation, the bill does not prevent anyone from going to court. People can still go to court and sue for compensation. The Minister, by not accepting this amendment, is prepared to say that, if a case does not involve potential disciplinary action against a health provider but it does involve negligence, he is happy for it not to be investigated. If the Minister has not looked at case law over the past 12 months I suggest he should do so, as I referred a case to him some time ago. He had 12 months to look at that case. If he is prepared to say in this case that he is happy that negligence is not an issue, be it on his head.
Dr MACDONALD (Manly) [9.10]: This amendment has a degree of appeal. Circumstances could arise where a complaint is withdrawn and the commissioner may not continue to deal with a matter which, in his view, is serious. This is clearly an attempt on the part of the Parliamentary Counsel, obviously acting on instructions from the Minister, to cover a number of issues that the commissioner must continue to deal with even though the complaint has been withdrawn. If there has been significant negligence, a health provider is unlikely to escape under subclauses (a), (b) or (c). On the other hand, if the word gross were added to the word negligence, it would not capture matters about which the Minister is concerned. Perhaps the mover of the amendment would agree that the amendment should read that the matter involves gross negligence on the part of the health practitioner. The inclusion of this provision in the bill would be another belt and braces job for the Minister to cover his concerns.
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [9.11]: I seek clarification. Was the honourable member for Manly moving an amendment to my amendment?
Dr Macdonald: I was suggesting gross negligence.
Dr REFSHAUGE: I would be very happy to accept that the words be changed to "gross negligence". The Opposition wants to establish the concept of gross negligence. It may be a problem of ill-definition, but I would be happy for the honourable member for Manly to move an amendment to my amendment. If his proposed amendment conveys what he feels is important, I feel that it conveys the vast bulk of what I think is important.
Mr PHILLIPS (Miranda - Minister for Health) [9.12]: There are a couple of difficulties with the amendment. First, under clause 23 "Investigation of complaint", subparagraphs (ii) and (iii) of subclause (1)(b) state:
(ii) raises a significant question as to the appropriate care or treatment of a client by a health service provider; or
(iii) provides grounds for disciplinary action against a health practitioner.
That covers a significant area. The problem with adding a paragraph (d) is that the question of negligence is added to the bill. Medical groups would strongly oppose that type of addition because negligence is clearly a civil law matter. The types of cases that could be covered are fairly broad, as can be seen under clause 23, which states that the commission must investigate a complaint and sets out matters that can be complained of. Negligence is really a civil law matter.
Page 5592
Mr HATTON (South Coast) [9.14]: Does that mean that the commission cannot deal with negligence? That appears to flow from what the Minister is saying. Clause 23(1)(b)(ii) says, " . . . raises a significant question as to the appropriate care or treatment . . .". As soon as the treatment of a client by a health service provider is entered into, it will pose the question of negligence - the care is inappropriate because the health provider was negligent. I do not understand why there should be any drama about including negligence in proposed clause 18(2)(d).
Mr Phillips: It changes the whole role of the commission. It is a civil law matter.
Dr MACDONALD (Manly) [9.15]: We are dealing with a fine point of law. I hear what the Minister is saying, and if the term "negligence" is included, it may create difficulties rather than improve the bill. We need to debate whether clause 18(2)(b) and clause 23(2)(b) cover our understanding of the concept of negligence - in other words, a health provider who is not providing appropriate care or treatment of the client. Does that cover what we think of as negligence - in other words, the doctor who intends to remove one organ but takes another, the doctor who fails to remove swabs, the doctor who removes the wrong leg, and so on? If the lay person sees that as negligence and it is captured in those clauses, that wish is satisfied. I do not want to be party to introducing a concept that will create a legal minefield and major obstacles for the commissioner. This is one of those occasions where lawyers are useful in Parliament. I am just trying to think of another. The Minister has said he does not understand the concept of negligence, and certainly I do not. I would like clarification.
Mr SCULLY (Smithfield) [9.16]: There is a place for lawyers in Parliament. We now have one. In answer to the queries of the honourable member for Manly, I am a little surprised that the Government would not support this amendment. Negligence as it applies to health care providers simply means that the health care provider referred to has not achieved the standard of care that the community can reasonably expect from the health care provider providing the health service. I should have thought the amendment to this legislation was eminently sensible. The complaints unit may not want to take disciplinary action against a medical practitioner and may not think there is a public health or safety issue, but a medical practitioner may have engaged in a careless act or offered a lower than expected standard of care.
It is totally unsatisfactory for the Minister to say that is the realm of the courts. We must ensure that health providers provide not only the best care but, at the very least, the standard of care we all expect, which would be classified as diligent and careful. It is not unreasonable to expect such a category to be dealt with by the complaints unit. It is a reasonable amendment, and I hope the honourable member for Manly supports it. The Opposition asks that the complaints unit have the power to investigate claims that a medical practitioner was careless. That is very important, though it might be at a lower level than disciplinary action.
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [9.18]: One area where negligence could be important is informed consent, which would not raise an issue of public health and safety or a significant question as to the appropriate care or treatment of a client. There would not necessarily be any ground for disciplinary action against a health practitioner who may have done everything else appropriate. Consider the case of Rogers v. Whittaker. In that case a woman required an operation to one eye, which already had a problem; the other eye was all right. The first operation was to clear the vision and allow the woman to see better - a reasonable operation; good standard effective treatment.
The operation was performed perfectly in excellent facilities; appropriate standards were maintained and everything was done properly. However, a sympathetic reaction with the other eye, a known but rare complication, arose. The first operation did not quite work, but the sympathetic reaction in the other eye meant that the woman went blind in that other eye. So, she lost the sight of both eyes. Nothing wrong was done with the care or treatment. That was done perfectly well. The only thing was that the onus of informed consent in that situation was to offer a greater emphasis on the reaction that might occur. Was the doctor negligent in that case? If this criterion is used, there is no need to investigate and everything was done properly. I suggest that the provision should be widened to make it clear that negligence must be taken into account. As the Minister said, this paragraph would need to be added to other clauses of the bill to make them logical and consistent.
Mr PHILLIPS (Miranda - Minister for Health) [9.21]: One of the difficulties with the amendment is that it takes us into a legal minefield in determining the role of the Health Care Complaints Commission having regard to the civil law on negligence. My concern is about crossing that line that would change the bill. As I understand it, in layman's terms, the meaning of the word negligence is captured in clause 23(1)(b)(ii), which says:
23. (1) The Commission must investigate a complaint:
(b) if, following assessment of the complaint, it appears to the Commission that the complaint:
(ii) raises a significant question as to the appropriate care or treatment of a client by a health service provider;
Negligence is a broad term. The difficulty with using it is that negligence is capable of a whole range of legal meanings. In all other Acts governing the registration of boards negligence is not used. In negotiations with the medical profession the word negligence will impart a range of different meanings. The question of informed consent relates to care or treatment and would be a matter for disciplinary Page 5593 action by the boards, as a clinical issue. I strongly counsel members against using the legalistic term "negligence" in the bill when it is not used in any of the Acts relating to the registration of medical boards.
Dr MACDONALD (Manly) [9.24]: I move:
That the amendment be amended by inserting after the word "involves" the word "gross".
The amendment would then read, "the matter involves gross negligence on the part of a health practitioner".
Mr PHILLIPS (Miranda - Minister for Health) [9.24]: Clause 18 of the bill is as follows:
Can a complaint be withdrawn?
18. (1) A complainant may withdraw the complaint at any time by notice in writing to the Commission.
(2) On the withdrawal of a complaint, the Commission may cease to deal with it but must continue to deal with the matter the subject of the complaint if it appears to the Commission that:
(a) the matter raises a significant issue of public health or safety; or
(b) the matter raises a significant question as to the appropriate care or treatment of a client by a health service provider; or
(c) the matter provides grounds for disciplinary action against a health practitioner.
The role of the commissioner includes disciplinary matters, registration and the sort of treatment. As soon as one enters the field of negligence, especially gross negligence, one moves into the realm of the civil law on negligence. I would be loath to cross that line by juggling words in regard to a legal, sensitive professional matter.
Question - That the amendment of the amendment be agreed to - put.
The Committee divided.
Ayes, 44
Ms Allan Mr Markham Mr Amery Mr Martin Mr Anderson Mr Mills Mr A. S. Aquilina Ms Moore Mr J. J. Aquilina Mr Moss Mr Bowman Mr J. H. Murray Mr Clough Mr Nagle Mr Crittenden Mr Neilly Mr Doyle Mr Newman Mr Gaudry Ms Nori Mr Gibson Mr E. T. Page Mrs Grusovin Mr Price Mr Hatton Dr Refshauge Mr Hunter Mr Rogan Mr Iemma Mr Scully Mr Irwin Mr Sullivan Mr Knight Mr Thompson Mr Knowles Mr Whelan Mr Langton Mr Yeadon Mrs Lo Po' Mr McBride Tellers, Dr Macdonald Mr Beckroge Mr McManus Mr Davoren
Noes, 42
Mr Baird Mr D. L. Page Mr Beck Mr Petch Mr Blackmore Mr Phillips Mr Causley Mr Photios Mr Chappell Mr Richardson Mr Cochran Mr Rixon Mrs Cohen Mr Rozzoli Mr Cruickshank Mr Schipp Mr Downy Mr Schultz Mr Fraser Mr Small Mr Glachan Mr Smiles Mr Griffiths Mr Smith Mr Hartcher Mr Souris Mr Humpherson Mr Tink Dr Kernohan Mr West Mr Kinross Mr Windsor Mr Longley Mr Yabsley Ms Machin Mr Zammit Mr Merton Mr Morris Tellers, Mr W. T. J. Murray Mr Jeffery Mr O'Doherty Mr Kerr
Pairs
Mr Carr Mr Armstrong Mr Face Mrs Chikarovski Mr Harrison Mr Collins Mr Rumble Mr Fahey Mr Shedden Mr Hazzard Mr Ziolkowski Mr Peacocke
Question so resolved in the affirmative.
Amendment of amendment agreed to.
Question - That the amendment as amended be agreed to - put.
The Committee divided.
Ayes, 44
Ms Allan Mr Markham Mr Amery Mr Martin Mr Anderson Mr Mills Mr A. S. Aquilina Ms Moore Mr J. J. Aquilina Mr Moss Mr Bowman Mr J. H. Murray Mr Clough Mr Nagle Mr Crittenden Mr Neilly Mr Doyle Mr Newman Mr Gaudry Ms Nori Mr Gibson Mr E. T. Page Mrs Grusovin Mr Price Mr Hatton Dr Refshauge Mr Hunter Mr Rogan Mr Iemma Mr Scully Mr Irwin Mr Sullivan Mr Knight Mr Thompson Mr Knowles Mr Whelan Mr Langton Mr Yeadon Mrs Lo Po' Mr McBride Tellers, Dr Macdonald Mr Beckroge Mr McManus Mr Davoren
Page 5594 Noes, 41
Mr Baird Mr O'Doherty Mr Beck Mr D. L. Page Mr Blackmore Mr Petch Mr Causley Mr Phillips Mr Chappell Mr Photios Mr Cochran Mr Richardson Mrs Cohen Mr Rixon Mr Cruickshank Mr Rozzoli Mr Downy Mr Schipp Mr Fraser Mr Schultz Mr Glachan Mr Small Mr Griffiths Mr Smiles Mr Hartcher Mr Smith Mr Humpherson Mr Souris Dr Kernohan Mr Tink Mr Kinross Mr West Mr Longley Mr Yabsley Ms Machin Mr Zammit Mr Merton Tellers, Mr Morris Mr Jeffery Mr W. T. J. Murray Mr Kerr
Pairs
Mr Carr Mr Armstrong Mr Face Mrs Chikarovski Mr Harrison Mr Collins Mr Rumble Mr Fahey Mr Shedden Mr Hazzard Mr Ziolkowski Mr Peacocke
Question so resolved in the affirmative.
Amendment as amended agreed to.
Clause as amended agreed to.
Clause 23
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [9.42]: I move:
Page 9, clause 23, line 29. After "practitioner", insert:
; or
(vi) involves gross negligence on the part of a health practitioner.
This amendment is similar to amendment No. 5 standing in my name but with the addition of the word "gross". The debate has already occurred regarding this amendment and, therefore, I will not take up any further time.
Mr PHILLIPS (Miranda - Minister for Health) [9.42]: The Government opposes this amendment for the same reasons put forward in regard to amendment No. 5. The Government cannot support what is clearly bad legislation. The process of adding this clause has not been thought through properly. If the health care complaints commissioner actually found gross negligence, where will the matter be taken? What will be done with it?
Dr Refshauge: There is another amendment.
Mr PHILLIPS: The Government opposes this amendment.
Amendment agreed to.
Clause as amended agreed to.
Clause 27
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [9.45]: I move:
Page 12, clause 27, line 13. Omit "2", insert instead "5".
This clause refers to the circumstances in which a commissioner should discontinue hearing a complaint. One reason is that the complaint relates to a matter that occurred more than two years before the complaint was made. There is significant provision that, in the eyes of the commissioner, the complainant may have sufficient reason for having delayed the matter. In many cases that may be obvious. For example, cases involving sexual assault may be disbelieved for many years; when ultimately believed, a complaint is made. I cannot imagine that the complaints unit would not use the discretion available to it in relation to cases of that nature.
My concern is that those obvious cases may not be the only cases. For that purpose the time limit should be increased from two years to five years from the date of the occurrence of a matter to when a complaint is made. After five years it is difficult to obtain information, witnesses or corroborative evidence or records. An increased time limit potentially increases the net of complaints that might be brought to the commission. The response from the Government to the initial report of the Ombudsman suggests that more complaints have been received by the complaints unit and that there is a speedier processing. I should have thought that an increase to five years will not allow many of the complaints that have not been made to be lodged.
During negotiations reference was made to either two years with an open-ended discretion or an absolute five year cut-off. I do not believe either of those suggestions is favourable. If this amendment fails, I do not believe that the bill will fail; it is significantly better than Victorian legislation, which has a much shorter time limit of one year. I urge the Minister to throw away his briefing notes and make up his own mind and agree that a liberal approach to the time limit, which does not significantly change the bill, adds to the process of enhancing the bill.
Mr PHILLIPS (Miranda - Minister for Health) [9.48]: The arguments put forward by the Deputy Leader of the Opposition are so compelling and overwhelming that I am willing to support the amendment.
Amendment agreed to.
Clause as amended agreed to.
Page 5595
New clause 30
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [9.50]: I move amendment No. 10 circulated in my name:
Page 14. After line 16, insert:
Requirement to answer questions
30. (1) The Commission may require a health practitioner against whom a complaint is made to give it written answers to specific questions asked by the Commission concerning any matter relevant to the complaint.
(2) The health practitioner must answer the questions within 28 days after the date of the Commission's requirement.
(3) The Commission may extend the 28-day period by a further period of 14 days if requested to do so by the health practitioner and if the Commission is of the opinion that the extension is fair and reasonable in the circumstances of the case.
The intent of the amendment is to speed up the processes of the commission. One of the major problems that my colleagues and I raise in this House on occasions is the enormous amount of time it takes for many cases to be investigated. One of the problems that regularly crops up is that the time taken to get evidence and information on which to make a decision stymies the complaints unit. Under the provisions in this bill the complaints unit will have search and seizure powers, backed up by search warrants. What does the practitioner say about complaints? I want a clear message given that practitioners have to respond. But, what if they do not? I have not suggested any penalties for a breach of the provision. I think it should be left to see whether the clear message is worth while or whether a further amendment should be made later. This is a matter that a parliamentary committee could examine. The amendment I would propose would not result in anyone being fined or sent to gaol, but would send a clear message to practitioners that the legislators believe they should respond. This could be one of those provisions of the bill followed up by the parliamentary committee. I urge the Government to support the amendment.
Mr PHILLIPS (Miranda - Minister for Health) [9.52]: Once again the Opposition would have a provision in this bill that would break the legal rules. The amendment would broaden significantly the direction in which the Government is seeking to go. I am concerned that the amendment is a further corruption of the bill. Clause 33(g) provides strong powers for the commission to require the provision of information. Clause 33 is about the powers of entry, search and seizure. Subclause (g) will require any person on the premises to answer questions or otherwise furnish information in relation to the matter. That wording is strong and clear.
The Deputy Leader of the Opposition seeks to include in legislation a provision that would deny an important right recognised in all similar jurisdictions under the criminal law. I do not understand the reason he would seek to do that. I would not want this Health Care Complaints Bill to walk over that territory. The only result that the amending bill could have is to remove a person's well recognised right to refrain from making self-incriminating statements. No such provision is contained anywhere else in the law. Why choose this bill to trample into that type of territory? That shows the type of nonsense in the amendments being moved by the Opposition. The Government opposes the amendment.
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [9.53]: I am surprised that the Minister thinks that the amendment of 33(g) would trammel people's civil liberties. How does that provision preserve any right and how does my amendment remove that right? The issue is the imposition of a time limit. The Minister's search and seizure provision requires the answering of questions. My amendment seeks to do that and also to put a time limit on it. There is no time limit in the Minister's provision. The intent of the time limit is to remedy a significant problem, that of delay in the completion of investigations.
Mr PHILLIPS (Miranda - Minister for Health) [9.56]: An important part of clause 33 is the boxed note at line 15.
Dr Refshauge: It is not part of the bill.
Mr PHILLIPS: No, but it clarifies the position. The note reads:
. . . a person must not, without reasonable excuse, refuse or fail to comply with a requirement made, or to answer a question asked, under the authority of section 33. This, however, does not take away the protection given by the law where a person's response may be, or tend to be, self-incriminating.
This was an important matter in the negotiations with the health professionals. The stupidity of the amendment moved by the Deputy Leader of the Opposition is that no penalty is to be provided for a breach of it. That has to be bad legislation. The messages in other parts of the bill are quite clear; there is a requirement to provide information, but the right is retained against making a self-incriminating statement. The amendment moved by the Deputy Leader of the Opposition would remove that right.
Dr Refshauge: It will not take away the right. The note read by the Minister does exactly the same.
Mr PHILLIPS: The notes are quite clear. This provision was arrived at after substantial negotiation and consultation with the health professionals. No one should be writing into a bill a provision that takes away a right. That is the advice I have about the Opposition's amendment. Also, there should not be in a bill a provision that does not provide for penalties. What if the provision is ignored? It is bad legislation. Further, the amendment is unnecessary.
Mr HATTON (South Coast) [9.58]: There is nothing peculiar about the amendment. In defamation proceedings in courts one is able to use interrogatories to demand responses within a time frame. The bench has the power to order interrogatories. Why then is it not reasonable that the bill should demand an Page 5596 answer within a reasonable period. If the bill does not specify a time limit, proceedings could go on for months and months, perhaps for no other reason than that the general practitioners, health professionals or providers are busy people not willing to give the matter appropriate time.
Dr MACDONALD (Manly) [10.0]: The Minister has drawn attention to clause 33, which relates to powers of entry, search and seizure. Subclause 33(g) empowers an authorised person to require any person on premises entered and inspected to do certain things. That provision has much value. On the other hand, the amendment proposed by the Deputy Leader of the Opposition seems not to relate to what may happen at the time of entry, search and seizure on certain premises but to the purpose of the investigation. Subclause 29(1) states that an investigation is for the purpose of obtaining information. The amendment seeks to establish a requirement for certain questions to be answered. I ask the Minister what is inconsistent with a requirement of a health practitioner, when asked, to provide information? Is that requirement not inconsistent with the purpose of the commission, which in its investigative phase is to obtain information? Why would such a requirement be inconsistent with the investigative process?
Mr PHILLIPS (Miranda - Minister for Health) [10.1]: I am surprised at the comments of the honourable member for South Coast. The bill does not mention a court but a Health Care Complaints Commission. If a matter is later taken to court, criminal law provisions can then be applied. This measure is being used to broach other territory. The honourable member said he saw nothing wrong in the bill requiring that responses be made within a particular period of time. The Deputy Leader of the Opposition has really indicated that he knows the amendment is meaningless. If health practitioners do not want to answer questions when asked, and do not want to answer questions in writing, such provisions are meaningless anyway. Why persist with an unnecessary provision?
I turn now to the concerns raised by the honourable member for Manly. The proposed Opposition amendment requires that a practitioner make a response and actually answer a question irrespective of the self-incriminating nature of the answers. Such a provision does not exist in other similar areas in criminal law. Why is the Opposition seeking the amendment? Is the Opposition suggesting that the Attorney General should handle the administration of the health care complaints legislation and make rulings which would set a precedent for other legislation?
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [10.4]: The Minister may not have noticed the new way of writing legislation. Boxes containing notes are inserted into bills but are not part of the proposed legislation. They are not meant to be law. They are explanatory bits.
Mr Phillips: I know that.
Dr REFSHAUGE: Then why did the Minister all of a sudden read out that note as if it creates an aspect of law in the bill.
Mr Phillips: Because you said you wanted to send a message.
Dr REFSHAUGE: But not in a box. The Minister does not even know his own argument.
Mr Phillips: You said you wanted to put that in and send a message. You said it is meaningless, but the message is in the box.
Dr REFSHAUGE: That is not the message in the box at all. I do not know what the Minister is talking about. Perhaps he should read the amendments to find out what they are about. Nothing in the proposed amendments will take away the right of a person not to self-incriminate. The Minister suggests the amendment does take away that right. If the Minister is correct, why is provision made in one clause but not in another? If the Minister is concerned about that aspect, I am happy for such provision to be also included as an amendment. If the Minister wants certain penalty provisions, he should put them in the bill. The Minister should accept the amendment as a clear message. If he thinks that only those people at or within those premises will be asked questions, he should put a time limit on their responses. At present, clause 33 provides no time limit for reply. The Minister seems unable to have the bill drafted as he would like. He should accept the proposed amendment as an attempt to tell health care providers that they should participate and give answers. That is what the amendment is about.
Mr PHILLIPS (Miranda - Minister for Health) [10.5]: This is a very sensitive area in which agreement has been reached through a substantial negotiation process. The proposed amendment deals with a sensitive matter and would not be accepted by the medical profession. The honourable member is proposing an amendment that, according to what he has said, would have no basis of support. The honourable member originally said that he does not seek to remove any penalties because he wants the process to go forward. Third, the bill should not be used to take away the right of a person not to make a self-incriminating statement. Measures similar to that proposed do not exist in any other jurisdiction, including criminal law. For those reasons, obviously, the Government has to oppose the amendment because it would make bad legislation.
Mr MILLS (Wallsend) [10.7]: I wish to return to the main point of the proposed amendment, but first I shall comment on the last point made by the Minister. The Deputy Leader of the Opposition has already volunteered willingness, if the Minister should so wish, to add a box to the amendment proposed for clause 30(1) similar to that at the end of clause 33(h) in relation to where a person's response may be or tend to be self-incriminating. However, the reality for members whose constituents bring their complaints to them is that attempts have to be made to assist them, perhaps by talking to officers of the complaints Page 5597 unit as it exists at present. One of the greatest difficulties is that the ordinary medical provider, who is busy, tends to put off, usually without malice, the business of writing the report. The principle purpose of the proposed amendment is to establish a requirement that the report be written and that responses to questions in the report be made within 28 days. The amendment sets a time limit. The bill, unfortunately, leaves that on the never-never, so that the complaints unit, or the Health Care Complaints Commission as it will be, can only keep calling practitioners and attempting to persuade them to respond.
Virtually all medical providers will agree with the requirements of the law and comply with a time limit when it is set. A period of 28 days is a reasonable time limit. I urge the Minister to set a 28-day time limit for responses, for the sheer practicality of enabling the complaints unit to deal with complaints, with the co-operation of most if not all health service providers. Would the Minister, in the shoes of a medical provider, adopt the hobnailed boots approach of clause 33 or the softly softly approach of the proposed amendment? The amendment proposes that the commission, knowing that most providers would accept a 28-day time limit, would approach providers for questions to be answered. That is the softly softly approach. Clause 33 will apply only if the amendment proposed to clause 30 is ignored by the provider. The proposed amendment makes excellent sense.
Mr O'DOHERTY (Ku-ring-gai) [10.8]: The honourable member for Wallsend argued against himself. He acknowledged that medical practitioners will be anxious to have complaints cleared up and will be anxious to co-operate in that process. That is exactly what the Minister is saying.
Mr Mills: They will put it off.
Mr O'DOHERTY: I doubt they will put it off if their status as medical practitioners is hanging in the balance, as it would be if a serious complaint is laid. The Minister is saying that it is most important that the commission operate with the full confidence and co-operation of the medical profession. If complaints are made against medical practitioners, it is in their best interests to co-operate and have those complaints cleared up. Until that happens, they, their practices and their families will be under a cloud. The introduction of compulsion would elevate such matters to a plane they have not previously been on. There would be a danger of losing the confidence and co-operation of the medical profession if this level of compulsion is introduced at this point in the bill. Such compulsion does not exist elsewhere. The honourable member for Wallsend picked up on the Deputy Leader of the Opposition's point about clause 33, which is only relevant in the context of clause 32, which says that entry can be refused. Let us not hear any argument about the compulsion in clause 33 without first looking at clause 32. It is not in a box; it is in the bill. It is a proper clause. The Deputy Leader of the Opposition should look at it.
New clause negatived.
Clause 30
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [10.10]: I move amendment No. 11 in my name:
Page 14, clause 30. After line 22, insert:
(2) The Commission may not obtain a report from a person who has a financial connection with the health practitioner against whom the complaint is made.
This is a very important amendment. Some changes are being made to improve the legislation in regard to an expert providing either a disclaimer or a statement about any personal, financial or professional connection. I support that being maintained in the legislation. The essence of the amendment is that if there is a financial relationship or a financial connection with a person being complained of, potentially money could be lost if that person lost part of his or her practice. If there is a link to that person, whether it is declared or not, the commission presumes there is bias. It is similar to saying that if a doctor sends a patient to a private hospital in which he or she has a pecuniary interest, the doctor should declare that interest. That is the policy of the Private Hospitals Association, and although it is a good policy I do not think it delivers what we need. If a doctor says, "I have an interest in that private hospital, I am declaring it, I am sending you to it", the patient's attitude could be, "By declaring it, everything is clear. Because it has been declared, it must be okay".
I suppose there are rare cases in Australia where obtaining an expert opinion from a person who does not have a financial relationship could be very difficult. It could be the case that only one of two practitioners in a joint practice can be called as an expert witness. I cannot think of it occurring, and I am not talking about joint membership of the Royal Australasian College of Physicians or the Royal Australasian College of Surgeons. It may be that expert opinion has to be sought overseas. It is not uncommon for the complaints unit to travel interstate to obtain advice. This amendment is very important to the integrity of the process, particularly in view of the defeat of the amendment to establish an independent review panel to protect the commission from receiving dud evidence and dud reports from people with a business relationship. Simply because one has a business relationship does not mean that one is a bad practitioner. I do not want to imply that people having business relationships are necessarily evil. However, this is a very important principle that we should be supporting.
Mr Phillips: Financial relationships?
Dr REFSHAUGE: Honourable members should support the amendment.
Mr PHILLIPS (Miranda - Minister for Health) [10.13]: The amendment proposed by the Deputy Leader of the Opposition attempts to ensure that anyone who has a financial connection with a health practitioner against whom a complaint is made cannot provide a professional report. The amendment will prevent the commission from obtaining or requesting Page 5598 an expert report on conditions where a small number of professionals are practising, for example in the treatment of rare forms of cancer surgery or psychosurgery. The field would be restricted by the amendment. The bill provides that people giving reports must declare their financial interest, thus ensuring that at the time of the report people are able to judge its bona fides. It is common practice in many fields of endeavour, when seeking expert reports, that if there is a financial relationship, that relationship must be declared.
That declaration provides for honesty and exposure of the financial interest, therefore enabling people to make judgments about the bona fides of the report. But to exclude the availability of resources to the complaints unit by excluding anyone with a financial relationship will create limited choices. The complaints commission will have difficulty in every case in determining beforehand in all inquiries whether there is a financial relationship. But if, in the time in which the report is written, a person declares his or her financial relationship, the bona fides can be tested. The Government believes the safeguards in the bill are sufficient and provide the flexibility that the complaints commission requires to obtain the information and expert reports it needs to make its decisions about a particular case that comes before it.
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [10.17]: The only point made by the Minister for Health that had any validity was that it may be difficult to obtain expert reports in very rare cases, such as from people who are experts in deep sleep therapy. Dr Gill might want to give a report to Dr Herron. No one else is practising this type of therapy. If the financial relationship clause is not included, the same people will be making a report on their own business. That is a real problem. The Minister has misunderstood the difference between declaring an interest and not taking part in a decision in which one has an interest. Members of Parliament have a pecuniary interest register. We all declare what we own and try to get it right, as complicated as it is. People look through the register occasionally to see who owns the most property, the most shares or whatever. But honourable members are not allowed to vote on something from which they would gain a direct benefit. The same thing occurs in councils. The law in the local government area has been changed so that anyone who is obtaining a direct benefit cannot vote on a matter. There is a very important difference between the principle involved in declaring an interest and taking part when one has an interest.
Mr Mills: It is a question of morality.
Dr REFSHAUGE: Morality on the part of the person supporting a vote. I will never suggest that all people do the wrong thing. But I do not want the decision that the commissioner is making to be based on an expert opinion in relation to someone who may be detrimentally affected because of a report's accuracy. That is a very important principle. We need to have integrity of that process. That is an important principle. We need the integrity of that process. On those rare occasions that we have to investigate deep sleep therapy, or we are confronted with a real weirdo situation, it is worth going overseas to obtain expert opinion. Even on those rare occasions it would be highly unlikely for someone in a related area not to be able make an appropriate expert report.
Mr PHILLIPS (Miranda - Minister for Health) [10.20]: One of the difficulties with which we are confronted in this type of amendment is that terminology is prepared on the run. For example, what is the definition of "a financial connection"? Does the Deputy Leader of the Opposition mean people in partnership, a debtor-creditor relationship, or a specialist referral from a general practitioner? The Deputy Leader of the Opposition might be referring to the business relationship which is established by referrals. The referral of business by general practitioners generates an income, so that might be the financial connection. The definition of "financial connection" is extraordinarily broad. The medical board is self-funded through the profession, so would that be termed a financial connection? The term "financial connection" is to be found in clause 30 of the bill. But the term is critical when it is used to exclude evidence. The problems with which we are confronted are the exclusion of evidence and the limited choice. Every time a report is sought an investigation will have to be conducted to obtain information from the person -
Mr Mills: Answer the question.
Mr PHILLIPS: How will we know in every case? This amendment makes the definition of "a financial connection" so broad that it is open to challenge and corruption. The problem is that it is not clear enough.
Question - That the amendment be agreed to - put.
The Committee divided.
Ayes, 44
Ms Allan Mr Martin Mr Amery Mr Mills Mr Anderson Ms Moore Mr A. S. Aquilina Mr Moss Mr J. J. Aquilina Mr J. H. Murray Mr Bowman Mr Nagle Mr Clough Mr Neilly Mr Crittenden Mr Newman Mr Doyle Ms Nori Mr Gibson Mr E. T. Page Mrs Grusovin Mr Price Mr Hatton Dr Refshauge Mr Hunter Mr Rogan Mr Iemma Mr Rumble Mr Irwin Mr Scully Mr Knight Mr Sullivan Mr Knowles Mr Thompson Mr Langton Mr Whelan Mrs Lo Po' Mr Yeadon Mr McBride Dr Macdonald Tellers, Mr McManus Mr Beckroge Mr Markham Mr Davoren
Page 5599
Noes, 42
Mr Baird Mr D. L. Page Mr Beck Mr Petch Mr Blackmore Mr Phillips Mr Causley Mr Photios Mr Chappell Mr Richardson Mr Cochran Mr Rixon Mrs Cohen Mr Rozzoli Mr Collins Mr Schipp Mr Cruickshank Mr Schultz Mr Downy Mr Small Mr Fraser Mr Smiles Mr Glachan Mr Smith Mr Griffiths Mr Souris Mr Hartcher Mr Turner Mr Humpherson Mr West Dr Kernohan Mr Windsor Mr Kinross Mr Yabsley Mr Longley Mr Zammit Ms Machin Mr Merton Tellers, Mr Morris Mr Jeffery Mr W. T. J. Murray Mr Kerr
Pairs
Mr Carr Mr Armstrong Mr Face Mrs Chikarovski Mr Gaudry Mr Fahey Mr Harrison Mr Hazzard Mr Shedden Mr O'Doherty Mr Ziolkowski Mr Peacocke
Question so resolved in the affirmative.
Amendment agreed to.
Clause as amended agreed to.
Clause 36
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [10.32]: I move:
Page 17, clause 36, line 22. Omit "10", insert instead "20".
This amendment will increase the penalty from 10 penalty units to 20 penalty units. The intention of the increase is to highlight the fact that the offence is serious. I understand that 20 penalty units will keep the offence within the lower court system, thereby preventing enormous delays. Prosecutions of persons impersonating authorised persons are important and should not be delayed. It is a serious matter when a person enters a doctor's surgery claiming to be from the complaints commission, yet the offence carries a penalty of only 10 penalty units. The penalty for obstructing a person is 20 penalty units, but the penalty for raiding a doctor's surgery and pretending to be someone else is watered down. It is stupid. I am tempted to seek a higher penalty but I want to ensure that it comes within the District Court ambit in order to avoid lengthy delays.
Mr PHILLIPS (Miranda - Minister for Health) [10.33]: The Government supports the motion.
Amendment agreed to.
Clause as amended agreed to.
Clause 39
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [10.34]: I move:
Page 18, clause 39. After line 21, insert:
(f) refer the matter the subject of the complaint to the Director of Public Prosecutions.
It is surprising that this provision is not included in the bill. It does not necessarily restrict the commission, or anyone, referring a matter to the Director of Public Prosecutions, and it seems appropriate that it should be a potential outcome. The Minister argued against one of my earlier amendments - not that I wish to traverse the subject - and said that just because a range of people were listed, that did not stop any person making a complaint. Similarly, this will not stop anything occurring but it may highlight the fact that this is a reasonable response, and in some cases it may be a totally responsible response, of the Health Care Complaints Commission.
Mr PHILLIPS (Miranda - Minister for Health) [10.35]: Clause 39 is intended to provide the commission with a direct process to refer a matter to the Director of Public Prosecutions. There is some concern that it may unnecessarily limit the bodies to which the commission can refer, by making specific reference to that body only. Certainly, the commission may want to refer the matter to the Director of Public Prosecutions, but there is a concern about limiting or narrowing the process.
Dr Refshauge: Will the Minister indicate what other bodies it may be limited to?
Mr PHILLIPS: I am quite happy not to go too hard on this matter. The Government wants the commissioner to have flexibility. The Government is more than happy to accept the amendment, which will allow the commission to refer the matter to the Director of Public Prosecutions.
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [10.37]: I thank the Minister. If some other bodies are involved, perhaps an amendment to the Statute Law (Miscellaneous Provisions) Bill might be appropriate.
Amendment agreed to.
Clause as amended agreed to.
New clause 42
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [10.37]: I move:
Page 19. After line 27, insert:
Access to investigation documents
42. (1) The Commission must, if requested to do so by a party to a complaint, make available for inspection by the party all documents obtained by it in the investigation of the complaint, including any reports obtained under Division 5.
(2) The Commission must do all such things as are necessary to ensure that the identity of a person giving a report under Division 5 is not disclosed on an inspection under this section.
Page 5600
(3) When giving notification under section 41 to the parties to a complaint, the Commission must also notify them of their rights under this section.
I understand that this amendment may be superseded by an amendment that the Minister has agreed to regarding freedom of information following the completion of a complaint. If the Minister indicates that freedom of information will be given after a complaint has been fully investigated or terminated in any sense, this amendment will obviously not be required and I would be happy to withdraw it.
Mr PHILLIPS (Miranda - Minister for Health) [10.39]: The Government will move an appropriate amendment to the bill.
Amendment, by leave, withdrawn.
Clause 42
Amendment by Dr Refshauge agreed to:
Page 19, clause 42, line 34. After "complaint", insert:
; or
(c) refer the matter the subject of the complaint to the Director of Public Prosecutions.
Clause as amended agreed to.
New clause 46
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [10.40]: I move amendment No. 20 standing in my name:
Page 21. Before line 4, insert:
Access to investigation documents
46.(1) The Commission must, if requested to do so by a party to the complaint, make available for inspection by the party all documents obtained by it in the investigation of the complaint, including any reports obtained under Division 5.
(2) The Commission must do all such things as are necessary to ensure that the identity of a person giving a report under Division 5 is not disclosed on an inspection under this section.
(3) When giving notification under section 45 to the parties to a complaint, the Commission must also notify them of their rights under this section.
If this amendment is covered by the freedom of information amendment to which the Minister has agreed, I shall withdraw it.
Mr PHILLIPS (Miranda - Minister for Health) [11.40]: The freedom of information amendment will cover both clauses.
Amendment, by leave, withdrawn.
Clause 63
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [10.41]: I move amendment No. 21 standing in my name:
Page 29, clause 63, lines 7 and 8. Omit "within 15 sitting days", insert instead "before the end of the next sitting day".
Amendment No. 22 standing in my name is similar to the amendment I have just moved. Why should the Presiding Officers sit on a report? This refers to a report to the Parliament that will have already been through a number of processes. The report will have been to the director-general and to the Minister. Why give the Presiding Officers 15 sitting days for reading time? They may be slow readers and the report might be voluminous, but this provision would leave the Presiding Officers open to criticism regarding political interference in the timing of the release of a report. Under this Government, which sits so few days, we may never see the report. This amendment will not change the intent of the legislation, which is to get the report before the Parliament so that it may be made available to the public as soon as possible. The 15 sitting days is an absurdly long period. The procedure should be seen to be as open to scrutiny as possible.
Mr PHILLIPS (Miranda - Minister for Health) [10.43]: The only reason the clause is framed in this way is to make it consistent with other legislation. The Presiding Officers will have a degree of flexibility. I see no good reason to depart from a procedure that has not failed us in the past. This clause is consistent with similar provisions in the Ombudsman Act and the Independent Commission Against Corruption Act.
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [10.44]: The blind faith of the Minister in his Presiding Officers is an indication of the integrity of the present incumbents of those positions. Future Presiding Officers may not have the Minister's absolute support. I do not have the total naive conviction that these Presiding Officers may not play with the timing of the release of a report. Many reports have been released at 5 o'clock on a Friday when it was known that the media will not get them and they will be buried by the time Monday comes along and the football results are available. It is important that all similar legislation is changed. The Minister is introducing milestone legislation. Let us make it a milestone in respect of a number of other Acts by bringing them into line with what should be common practice.
Mr PHILLIPS (Miranda - Minister for Health) [10.44]: I am usually loath to change precedents for the sake of the suspicion of the Deputy Leader of the Opposition and his lack of confidence in Presiding Officers of any persuasion. I have not consulted the Presiding Officers about any difficulties that might be caused by shifting from the standard 15 days. The present provisions seem to be all right for the Independent Commission Against Corruption and the Ombudsman, who deal with major issues. If pushed, I would accept the amendment. But, will it make a difference?
Amendment agreed to.
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [10.46]: I move amendment No. 22, which is consequential to the previous amendment:
Page 29, clause 63, line 13. Omit "may", insert instead "must".
Amendment agreed to.
Clause as amended agreed to.
Page 5601 New part 4
Ms MOORE (Bligh) [10.46]: I move amendment No. 1 circulated in my name:
Page 29. After line 29, insert:
PART 4 - REVIEW OF DECISIONS
Application by complainant for review of Commission's decision
64.(1) Without limiting any other provision of this Act, a complainant is entitled to apply to the Commission for a review of any decision of the Commission concerning the complaint.
(2) An application for a review must be made within 1 month after notice of the Commission's decision is given to the complainant.
(3) The Commission must review its decision within 21 days after receiving the application for a review.
(4) The Commission must give written notice to the complainant of its decision on review.
Application for review by Review Panel
65. (1) A person, being:
(a) a complainant who is dissatisfied with a decision of the Commission on review or with a failure or refusal by the Commission to review a decision within 21 days after receiving an application for a review; or
(b) a person against whom a complaint is made who is dissatisfied with any decision of the Commission concerning the complaint,
is entitled to apply to the Commission to constitute a Review Panel for a review of the Commission's decision.
(2) An application to constitute a Review Panel must be made within 1 month after notice of the Commission's decision is given to the person.
Constitution of Review Panel
66. (1) On receipt of an application to constitute a Review Panel the Commission must constitute a Review Panel consisting of:
(a) a person who represents the interests of health service providers; and
(b) a person who represents the interests of health service consumers; and
(c) a person who is not a person referred to in paragraph (a) or (b) but who has an interest in the provision of health services.
(2) The person referred to in subsection (1)(c) is to be the chairperson of the Review Panel.
Multiple Panels and multiple reviews
67. One or more Review Panels may conduct one or more reviews at the same time.
Functions of Review Panels
68. The functions of a Review Panel are as follows:
(a) to review the decision of the Commission for which the review is sought;
(b) if necessary, to reconsider a complaint on its merits;
(c) to make recommendations to the Commission as to the action to be taken concerning a complaint;
(d) to make such reports, if any, to the Commission as a consequence of the review as the Review Panel considers appropriate.
Access to information
69. For the purpose of exercising its functions, a Review Panel is entitled to have access to the same information as was available to the Commission in reaching its decision.
Decision-making by Review Panel
70. A decision supported by at least 2 members of a Review Panel on any matter arising before it is the decision of the Panel.
Notification of results of review
71. The chairperson of a Review Panel must notify the parties to the complaint and the Commission, in writing, of the results of a review as soon as practicable after the review is completed.
Remuneration of members
72. A member of a Review Panel, while sitting as a member, is entitled to be paid by the Commission at the same rate as a witness who gives expert evidence in the Supreme Court.
This amendment relates to the review panel. My amendment is different from that moved by the Deputy Leader of the Opposition. The bill provides for a review of the commission's decision by the commission only. Internal review does not protect accountability. The proposed independent appeal body will provide a review, on the merits, of a commissioner's decision. It is inexpensive and balances representations by health care providers and health service consumers. As I said previously, the proposal was recommended and supported by the Public Interest Advocacy Centre and such groups as the Australian Cardiac Association, the Medical Consumers Association and the PIAC consensus group. I commend the amendment.
Mr PHILLIPS (Miranda - Minister for Health) [10.48]: The Government opposes the amendment for the reason it opposed a similar amendment moved by the Opposition. That extensive debate covered both amendments.
Dr MACDONALD (Manly) [10.48]: I concur with the comments of the Minister. I should emphasise that though there may be significant differences between the review panel contemplated by the Opposition and that contemplated by the honourable member for Bligh, so far as I am concerned, in essence, there is no difference between them. Matters have been raised in debate that could be subject to determinations, such as whether the panel should be established by the Minister or the commission and whether the word "merit" would open up the process. I cannot support the amendment.
Amendment negatived.
New clause 66
Mr PHILLIPS (Miranda - Minister for Health) [10.50]: I move:
Page 30. After line 34, insert:
Power to veto proposed appointment of Commissioner
66. (1) The Minister is to refer a proposal to appoint a person as the Commissioner of the Commission to the Joint Committee and the Committee is empowered to veto the proposed appointment as provided by this section. The Minister may withdraw a referral at any time.
(2) The Joint Committee has 14 days after the proposed appointment is referred to it to veto the proposal and has a further 30 days (after the initial 14 days) to veto the proposal if it notifies the Minister within that 14 days that it requires more time to consider the matter.
Page 5602
(3) The Joint Committee is to notify the Minister, within the time that it has to veto a proposed appointment, whether or not it vetoes it.
(4) A referral or notification under this section is to be in writing.
The purpose of the amendment is to provide for the vetoing by the proposed joint parliamentary committee of the appointment of the Commissioner of the Health Care Complaints Commission. These provisions are based on the Statutory Appointments Legislation (Parliamentary Veto) Amendment Act 1992, which commenced in May last year. The Act applies similar provisions to the appointment of the Auditor-General, the Commissioner for the Independent Commission Against Corruption, the Director of Public Prosecutions and the Ombudsman. It is clearly the intention of this legislation to place the proposed Health Care Complaints Commission on equal footing with these types of bodies. Therefore, the appointment of the commissioner should be subject to the same power of veto that applies to appointment to the offices I just mentioned. I thank the honourable member for Manly and others who have brought this provision to the attention of the Government. I commend the amendment.
New clause agreed to.
Clause 71
Mr HATTON (South Coast) [10.51]: I inform the House that I do not intend to move amendment No. 1 in my name. Instead, I move:
Page 33, clause 71, line 22. Omit the word "must" and insert instead the word "may".
Clause 71(1) as it stands without my amendment states:
71. (1) If any evidence proposed to be given before, or the whole or a part of a document produced or proposed to be produced to, the Joint Committee relates to a secret or confidential matter, the Committee may, and at the request of the witness giving the evidence or the person producing the document must:
(a) take the evidence in private;
The present bill makes a lot of sense. However, if a public servant comes before a parliamentary committee and says, "According to our department, this document is confidential", the contents of the document cannot be published. The way the bill is framed makes a lot of sense. However, if a bureaucrat, or the department represented by a bureaucrat, appears before a parliamentary committee and says that a document - which may be an administrative document or a document that could have a significant impact on the health consumer - is confidential, the committee is prevented from revealing the contents.
I realise that this measure is designed to protect sensitive issues. The document may refer to a doctor suffering from AIDS who may be practising in a public hospital. That matter should remain confidential. The document would have to be broad in nature because a parliamentary committee cannot examine individual cases. I am concerned that the measure may prevent a parliamentary committee invigilating a government department or a bureaucrat simply because the matter is confidential in the view of the department or the bureaucrat. This clause requires greater definition so that the proposed parliamentary committee can perform the job the bill envisages. That is my main concern.
Mr PHILLIPS (Miranda - Minister for Health) [10.55]: Once again, I find it perplexing that provisions that are good enough for the Independent Commission Against Corruption Act and the Ombudsman Act - both Acts of great interest to the honourable member for South Coast - do not seem to be good enough for the Health Care Complaints Bill. The Government has tried to make those two important pieces of legislation consistent, and that is the reason for these provisions. It has been suggested that the restrictions proposed by the amendment may discourage full and frank disclosure by witnesses. However, on the basis that there would be no direct impact on the commission or the portfolio, I am a bit each way about consistency. I would like to know how strong the honourable member's views are on this issue.
Mr HATTON (South Coast) [10.56]: I understand that this measure was lifted straight from other statutes. The Independent Commission Against Corruption and the Office of the Ombudsman are not government departments but special investigative bodies. In this case, one might well want to invigilate the department or a range of health care organisations to provide wider application. One could have concerns, as I have, about the provision in the Independent Commission Against Corruption Act covering the Committee on the Independent Commission Against Corruption and the provision in the Ombudsman Act covering the Committee on the Office of the Ombudsman, but that is as far as I would be prepared to go.
I am worried that we might be crowding the proposed parliamentary committee, which may have the duty and the will to invigilate a number of government departments and organisations across the board. All I am saying is that the committee "may". Revelation would only be made in extraordinary circumstances and the majority of the committee members would need to make the decision. Information should only be revealed following a resolution of the committee. That is quite different from a member of Parliament leaking information from a committee. That is the way I view the matter. I understand that there are sound reasons for this provision, and I would be happy for the Minister to provide an undertaking to endeavour to define this area more closely so that the clause will not prevent the committee invigilating government departments and officials while carrying out what one would expect to be its normal duty and responsibility.
Mr PHILLIPS (Miranda - Minister for Health) [10.59]: I wish to refer to the comments made by the honourable member for South Coast. The amendment relates to a request by a witness that evidence be Page 5603 taken in private. However, from comments of the honourable member for South Coast I believe that he may be talking about the committee deciding on the evidence it received. In other words, a person is asked to give evidence in private and at the conclusion the committee decides whether that evidence will be kept private or made public. The reason for taking evidence in private is to extract additional information. If it is possible that evidence given in private may subsequently be made public, the whole process is undermined.
Mr HATTON (South Coast) [11.0]: If evidence given before the police committee by officers of the department could have been revealed, the public interest would have been better served, and decisions of the House and the public's perception of the department would have been vastly different. Confidential matters such as drug security fall into this category. Drug security could be referred to in this measure in a different context, or such matters as fraud and malpractice. The bill mentions part of a document to be produced or proposed to be produced. One may wonder what a parliamentary committee could do if a department, in an attempt to cover up something, told the committee that the document was confidential.
The committee would have seen the document and decided that it contains issues of major public interest, but it would be bound by this provision and could not do anything to release it. Frankly, I do not know how to address that problem, but I must draw it to the attention of the House. Perhaps it will need to be addressed by regulations or some other amendment or addition to the bill. All I seek from the Minister is that he will give serious consideration to the bureaucratic aspect of this provision and report back to the House at a later stage as to how provision could be made in this section to allow the parliamentary committee to do its work. Under those circumstances I would see leave to withdraw the amendment.
Mr PHILLIPS (Miranda - Minister for Health) [11.2]: I acknowledge the concerns raised by the honourable member for South Coast. It is a difficult area in which to proceed. I undertake to have officers of the department and members of my office discuss possible changes with him to see if this issue might be resolved. I appreciate his commitment to achieve a solution.
Mr HATTON (South Coast) [11.2]: Perhaps disclosure should be at the discretion of the committee, by vote of the committee in the public interest, and the public interest should be stated.
The CHAIRMAN: Order! Is the honourable member proposing a further amendment?
Mr HATTON: No. It is a suggestion I put in Hansard for the Minister to consider when he addresses this issue.
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [11.3]: I am keen to support the amendment of the honourable member for South Coast, but I totally disagree with his suggestion about disclosure at the discretion of the committee. The original amendment is a much better solution. Whether a parliamentary committee takes evidence in camera is the decision of the committee and not the witness. Therefore, I support the original amendment of the honourable member for South Coast. His foreshadowed amendment that the committee, having heard evidence in camera, may decide to withdraw its statement to the witness and reveal the information it received from that witness could result in a horrendous invasion of someone's privacy and is a totally inappropriate way to proceed. I suggest that the provision should be as his original amendment states, which is that it is the decision of the committee whether it hears evidence in camera and not that of a witness. The witness should not have the power to close committee hearings. I support the proposal by the honourable member for South Coast about having further discussion on this matter.
Mr HATTON (South Coast) [11.4]: Given the undertaking of the Minister on behalf of the Government, I seek leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Mr PHILLIPS (Miranda - Minister for Health) [11.5]: I move amendment No. 2 standing in my name:
Page 33, clause 71. After line 25, insert:
(2) If any evidence proposed to be given before, or the whole or a part of a document produced or proposed to be produced in evidence to, the Joint Committee relates to the proposed appointment of a person as the Commissioner of the Commission, the Committee must (despite any other provision of this section):
(a) take the evidence in private; or
(b) direct that the document, or the part of the document, be treated as confidential.
(3) Despite any other provision of this section except subsection (9), the Joint Committee must not, and a person (including a member of the Committee) must not, disclose any evidence or the contents of a document or that part of a document to which subsection (2) applies.
(4) Despite any other provision of this section except subsection (9), the Joint Committee (including a member of the Committee) must not, and any person assisting the Committee or present during the deliberations of the committee must not, except in accordance with section 66(3), disclose whether or not the Joint Committee or any member of the Joint Committee has vetoed, or proposes to veto, the proposed appointment of a person as Commissioner.
Maximum penalty: 20 penalty units or imprisonment for 3 months, or both.
This amendment is consequential to Government amendment No. 1 relating to the power to veto the proposed appointment of a commissioner by the joint parliamentary committee.
Amendment agreed to.
Amendments by Mr Phillips agreed to:
Page 34, clause 71, line 3. Omit "subsection (5)", insert instead "subsection (8)".
Page 34, clause 71, line 10. Omit "subsection (5)", insert instead "subsection (8)".
Page 34, clause 71, line 17. Omit "subsection (3)", insert instead "subsection (6)".
Clause as amended agreed to.
Page 5604
New clause 77
Amendment by Mr Phillips agreed to:
Page 36. After line 19, insert:
Veto of proposed appointment as Commissioner
77.(1) A person is not to be appointed as the Commissioner of the Commission until:
(a) a proposal that the person be appointed has been referred to the Joint Committee under section 66; and
(b) either the period that the Joint Committee has under that section to veto the proposed appointment has ended without the Committee having vetoed the proposed appointment or the Committee notifies the Minister that it has decided not to veto the proposed appointment.
(2) A person may be proposed for appointment on more than one occasion.
(3) In this section and section 66, "appointment" includes re-appointment.
New clause agreed to.
Clause 78
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [11.7]: I move amendment No. 23 standing in my name:
Page 37, clause 78. After line 29, insert:
(i) to investigate the frequency, type and nature of allegations made in legal proceedings of malpractice by health practitioners.
One matter that was brought to attention during consultation over the past year is that there may be other court proceedings about issues that should be in the province of the Health Care Complaints Commission. Just because someone takes out a civil case against a health practitioner and may win, it should not be thought that nothing else should happen. It may be that the practitioner should be deregistered. The complaints commission should receive complaints and also have an overview of proceedings in other courts.
If this amendment is passed, the parliamentary committee should determine whether it is working in practice. It may be favourable for the courts to notify the complaints commission of issues regarding negligence, malpractice, professional standards and breaches. My concern is that the Chief Justice may say that he is running the courts and not the Parliament and therefore we should not engage in fruitless argument. It may be better to put the provision in these terms to have the commission overview what is happening in courts. Understanding the sensitivities of the courts to co-operate and facilitate a proposed amendment, this provision will ensure that we are aware of what is happening in the system and not just individual complaints to the commission. I trust that the Government will see the wisdom of this procedure and accept the amendment.
Mr PHILLIPS (Miranda - Minister for Health) [11.10]: The Government will not support the amendment. The proposal put forward by the Deputy Leader of the Opposition would require the commission to conduct a major and extensive review on issues that are not really central to its charter. That would involve areas of professional indemnity, et cetera. These types of issues are currently under consideration by the Commonwealth Government's Tito committee on professional indemnity, a major review that is expected to take a significant length of time. It is important that we do not become involved in that issue by substantially changing the charter of the complaints commission. It is also a matter of investigation and review by the Commonwealth Government at this stage. I ask members not to support this amendment.
Mr HATTON (South Coast) [11.11]: I have an interest in this matter for a number of reasons. Recently I have been doing some reading on the anti-trust and retail legislation in the United States that allows consideration of antecedents, the track record in other words, of companies and organisations. One of the major problems in our court system in this country - and I know very well we are not talking about a court system - is that all that is being considered is a particular complaint against a person and not that person's pattern of behaviour. The record of the person complained against could clearly indicate real problems with that person being a health service provider. The amendment will give the commission power to investigate the frequency, type and nature of allegations made in legal proceedings of malpractice by health practitioners. I do not think the amendment expands the existing provision as much as the Minister imagines it does. It indicates whether the practitioner is a lemon.
Dr MACDONALD (Manly) [11.13]: We are getting to the heart of another issue that will draw this Committee into conflict. I think the matter will arise again when the Committee is dealing with clause 89. The Minister claims that the amendment goes beyond what he envisaged to be the role of the commission. I remind the Minister that in his second reading speech and in messages provided to consumer groups he claimed that one of the benefits of the new Health Care Complaints Commission will be its ability to look at matters in a systemic sense. I draw attention to clause 59, which relates to investigation of health services:
The Commission may . . . investigate the delivery of health services by a health service provider directly affecting the clinical management or care of clients which may not be the particular object of a complaint but which arises out of a complaint or out of more than one complaint . . .
It then qualifies that by saying that that is where a significant issue of public health and safety or a number of other matters are involved. Clearly it invites the commission to look beyond its role of examining complaint after complaint. That is one reason why the provision was welcomed by the AIDS Council, for instance. It allows matters to flow from the commission rather than have the commission dealing with individual complaints, enabling Page 5605 improvements to flow in the provision of health services and gives the commission a role in making recommendations to the Director-General of Health.
I turn now to clause 78, which deals with the function of the commission. I ask myself: What is it about this particular amendment that is inconsistent with the provision in the bill? The Deputy Leader of the Opposition seeks the inclusion of an additional clause that merely will allow the commissioner to draw on the lessons that flow from legal proceedings of malpractice by health practitioners. I ask the Minister: How is that inconsistent with clause 59? Does it not strengthen the commissioner's opportunity to look into what is happening not only in the commission but also in legal proceedings regarding malpractice, thereby to confirm impressions he has about complaints or a series or pattern of complaints that are already coming in? That knowledge might convince the commissioner to make a recommendation about the matter. I do not think the Government has anything to fear from the amendment.
Mr PHILLIPS (Miranda - Minister for Health) [11.16]: It comes back to the question of what is good or bad legislation. At present nothing prevents the commission from examining a systemic matter of concern and writing to courts asking for information. At present the main response of the courts is to ignore requests. The amendment will change nothing. If one is to investigate the frequency, type and nature of allegations in legal proceedings of malpractice by health practitioners, one has to write to the courts to get that information. At present the courts do not have to disclose that information. That is part of the problem. I presume it is those sorts of matters that the Commonwealth Tito committee is looking at. Even if the amendment is carried, it does not mean anything.
Mr HATTON (South Coast) [11.17]: I submit it does mean something. The amendment would enable the attention of the commissioner to be brought to the fact that the practitioner has a bad track record, enabling the commissioner to be directed to cases which he might consider. That will set the commission off on a track which is clearly set out in the bill. If it is in the Act, the commissioner will know he has a responsibility to at least consider that avenue of investigation. On the other hand, if the provision is not in the Act the commissioner might well say, "That is not in my jurisdiction. I do not have instructions to act that way; I choose not to do it that way". The amendment allows him to take that action. If the complainant is insistent, the amendment would make it most likely that the commissioner will follow what is a very desirable path. It could be that the Australian Medical Association may wish to bring to the commissioner's notice that a doctor has a track record of which the Australian Medical Association is not very proud, and the AMA might want the commissioner to go down that track. Not only the health consumer but also the professional bodies might wish to draw the attention of the commissioner to that track record.
Mr PHILLIPS (Miranda - Minister for Health) [11.19]: If the Australian Medical Association or any other body is concerned about a particular doctor, I would expect it to do what the bill provides that it may do - lodge a complaint for investigation. Clause 23(1)(b) states that the commission must investigate a complaint if, following assessment, it appears to the commission that the complaint is a significant issue of public health or safety, or raises a significant question as to the appropriate care or treatment of a client by a health service provider. That is what the complaints commission is all about.
The proposed amendment would add another unnecessary clause without power or validity. If the complaints commission, under the provisions of the bill, writes to the courts seeking that information, a problem will arise under legislation covering those jurisdictions. For that reason the Tito committee in Canberra is looking at this whole question. It is a complex, significant legal matter. The proposed amendment does not mean anything and does not change anything.
Mr HATTON (South Coast) [11.22]: I offer a final word on this issue. The proposed amendment is important. A complaint and the practitioner the subject of that complaint will be looked at in the context of the power that the proposed amendment to the bill would give the commission to take into account the track record of the particular practitioner.
Question - That the amendment be agreed to - put.
The Committee divided.
Ayes, 45
Ms Allan Mr Markham Mr Amery Mr Martin Mr Anderson Mr Mills Mr A. S. Aquilina Ms Moore Mr J. J. Aquilina Mr Moss Mr Bowman Mr J. H. Murray Mr Clough Mr Nagle Mr Crittenden Mr Neilly Mr Doyle Mr Newman Mr Gaudry Ms Nori Mr Gibson Mr E. T. Page Mrs Grusovin Mr Price Mr Hatton Dr Refshauge Mr Hunter Mr Rogan Mr Iemma Mr Rumble Mr Irwin Mr Scully Mr Knight Mr Sullivan Mr Knowles Mr Thompson Mr Langton Mr Whelan Mrs Lo Po' Mr Yeadon Mr McBride Tellers, Dr Macdonald Mr Beckroge Mr McManus Mr Davoren
Page 5606
Noes, 43
Mr Baird Mr D. L. Page Mr Beck Mr Peacocke Mr Blackmore Mr Petch Mr Causley Mr Phillips Mr Chappell Mr Photios Mr Cochran Mr Richardson Mrs Cohen Mr Rixon Mr Collins Mr Rozzoli Mr Cruickshank Mr Schipp Mr Downy Mr Schultz Mr Fraser Mr Small Mr Glachan Mr Smiles Mr Griffiths Mr Smith Mr Hartcher Mr Souris Mr Humpherson Mr Tink Dr Kernohan Mr West Mr Kinross Mr Windsor Mr Longley Mr Yabsley Ms Machin Mr Zammit Mr Merton Tellers, Mr Morris Mr Jeffery Mr W. T. J. Murray Mr Kerr
Pairs
Mr Carr Mr Armstrong Mr Face Mrs Chikarovski Mr Harrison Mr Fahey Mr Shedden Mr Hazzard Mr Ziolkowski Mr O'Doherty
Question so resolved in the affirmative.
Amendment agreed to.
Ms MOORE (Bligh) [11.29]: I move amendment No. 2 circulated in my name:
Page 37, clause 78. After line 29, insert:
(i) to develop, after such consultation with clients, health service providers and persons who, in the Commission's opinion, have an appropriate interest, a code of practice to provide guidance on the way in which the Commission intends to carry out some or all of its functions.
I am proposing setting up a code of practice. The Victorian Health Services (Conciliation and Review) Act provides for a code of practice to be developed by the commissioner after consultation with users, providers and people who have an appropriate interest. The code provides guidance on the way in which the commissioner intends to carry out some or all of the commissioner's functions. The code must be incorporated in the regulations. The code will address many of the concerns of groups objecting to the bill, for example prioritisation of complaints. I hope the Minister will support the amendment.
Mr PHILLIPS (Miranda - Minister for Health) [11.30]: The Government has no problems accepting the amendment for the development of a code of practice that will benefit consumers by providing extra information about the functions of the proposed commission. I think it is good practice and I would expect that the commissioner would consult widely about developing that code of practice. I hope he achieves consensus on that code of practice.
Amendment agreed to.
Amendment by Ms Moore agreed to:
Page 37, clause 78. After line 31, insert:
(3) A code of practice developed by the Commission under subsection (1)(i) has not effect unless it is incorporated in, or adopted by, the regulation.
(4) The Commission may exercise its functions even though:
(a) the Commission has not developed a code of practice in relation to those functions; or
(b) a code of practice has been developed but has not been incorporated in, or adopted by, the regulations.
Clause as amended agreed to.
Clause 89
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [11.31]: The Opposition opposes this clause. It is so restrictive that the commission will not be able to report on anything relating to systemic problems in the health care system. The commission will not be able to report if the Government has to spend one cent more than provided for in its budget. The commission will not be able to report if something is against Government policy. If one wants to neuter a commission, one says, "You cannot report if it is going to cost you anything; and you cannot report if it is going to suggest a new direction". This clause is the worst clause in the bill. It should be deleted.
If the Minister were serious about systemic investigations, by giving the commission power to examine problems not related just to one type of case occurring throughout the system, the commission's powers of recommendation should not be limited. The Government is not necessarily bound by the recommendations, but the commission should be able to say what the Government ought to do. If the Government says it does not have the money to do something, that argument could be weighed in the balance at the next election - or it could be debated. If it is against government policy, the Government could say that it did agree with a recommendation because it was against its policy.
The Government should not restrict the commission's recommendations because the Government may have to provide additional funds. It could find $100 million for Eastern Creek, and yet the complaints commission, which is examining major systemic problems occurring in the health care system cannot make a recommendation because it might cost the Government money to implement a recommendation. That is a ridiculous situation! The clause must be struck out.
Mr PHILLIPS (Miranda - Minister for Health) [11.34]: The Government feels very strongly about this clause. It is a major clause and if deleted or amended substantially, the responsibilities and the Page 5607 powers of the commission would be widened dramatically far beyond what was intended. That would never be agreed to. In fact, the Government moved in regard to the commission being able to make recommendations. Let us examine the difference in its role. The role of the Health Care Complaints Commission is - and it is at arm's-length - to investigate complaints in the system, including systemic complaints as well as individual complaints. At the end of that process the commission makes a report. If one is referring to particular systemic problems, the commission would make a report about that particular problem.
The proposed legislation says that when the commissioner identifies the systemic problem he writes to the Department of Health and requires the director-general to take action on that problem. If the director-general does not take action, if the commissioner is still concerned he writes to the Minister. If the Minister does not take action, and the commissioner is still concerned, he then reports in writing to the Parliament. That process is just and fair, particularly having regard to the fact the Deputy Leader of the Opposition is talking about trying to overcome a particular problem.
The quantum leap is to allow the commission to make recommendations as to how those problems should be solved. First of all, it is the responsibility of the department, the Minister and the Parliament to determine the appropriation and the distribution of resources throughout the health system. Someone in the system who, unaware of what the responsibility for health involves, could be examining a specific systemic problem, and say to the Department of Health, "You will install 20 of these machines that go `ping' around the State at a cost of $50 million". Obviously, that would put enormous pressure on the department and the government of the day because of the necessity to respond to the report's recommendation.
Interest groups will try to influence the commissioner in making his reports. That would take the commissioner into a brand new ball game. How does a legal-type person who is examining complaints make recommendations about how to solve a problem without having significant additional resources, and without having access to the health system, to obtain the information necessary to make a recommendation? That would be a significant change. The Government will fight that proposal right to the end. After more than three years of negotiation, suddenly, towards the end of the process, there is to be a significant change, which will instantly create a monster. Not only is there to be a charter to look at complaints and ensure that those complaints are solved - which is fair - but it is also to be the responsibility of the department and the Government to solve the problems. Governments should be accountable.
But now the Opposition wants the Government to say to the commissioner, "You need to come up with the recommendations as to how that problem can be solved". It is a completely new charter for the complaints commission and that is totally unacceptable to the Government. This issue has been pursued. I remind honourable members of the concern of all of the associations about reaching a compromise position and pushing ahead with the bill. The Government wants to push ahead with this bill, but it cannot accept this major policy change. If it were so important to honourable members opposite, why did this House, not too many weeks ago, pass the Community Services (Complaints Appeals and Monitoring) Bill? Why was this type of clause not in that bill? Suddenly the Opposition has a brand new grand idea that is two or three weeks old to give someone else power to make recommendations. However, it would take away responsibility from the department, the Minister and the Parliament.
The Government strongly opposes the deletion of clause 89. It will oppose any major amendment that undermines the responsibilities and powers of the complaints commission and its ability to identify problems. The department and the Government must establish the best way of resolving problems in the health care area. The commission is accountable to this Parliament. It has the power to comment on the way those problems should be solved. That is the correct way of doing it. We should not say to some outside body "Come up with some recommendations if you want to". That would merely be a matter of choice.
Mr MILLS (Wallsend) [11.41]: If clause 89 remains in the bill the commission will no longer be independent. One of the requirements in the Medicare agreement and one of the bases for establishing the new commission is that it should be independent of government and the department. If the commission is constrained to make recommendations without going beyond existing resources and government policy, it can no longer be called an independent commission. Government will be responsible for responding to the commission's recommendations. That is what independence is about and that is what the separation of powers is about. I urge all honourable members to support the amendment to delete clause 89.
Dr MACDONALD (Manly) [11.42]: I anticipated that this clause would cause division in Committee. With all respect to the Minister, I question whether he is really genuine when he talks about a system review - a function, clearly, of the commissioner. That would be one of the benefits of moving away from the medical complaints unit to the Health Care Complaints Commission. It is important for us to learn from experience. The commission has to draw from experience and from other sources when handling complaints and be in a position to make various recommendations. The Minister has been hoist with his own petard. He said that the commission may point things out or make certain statements, but that is not what the bill states. It states:
A recommendation made by the Commission in relation to a matter investigated under this Act . . .
Page 5608
So the commission or the commissioner may make a recommendation. The Minister is treating the commissioner like a boxer; he is sending the commissioner into the ring with one arm tied behind his back. However, the commissioner cannot make genuine recommendations because he is saddled with the provisions specified in subparagraphs (a) and (b), which were referred to earlier. These subparagraphs send a clear signal to the commissioner that he has to be restrained when making recommendations. I draw the attention of the Committee to the recent Burdekin report, which was made not necessarily on the basis of what the commissioner will be doing, in other words, receiving complaints through the complaints process. The commissioner, after years of investigation, will refer to information that has been gathered.
Burdekin stated clearly in his report that there needs to be an increase in health care funding. That funding could come from either health or additional budgetary allocations. A study and a review established that the allocation of funding for mental health services should be augmented. That is not a bad analogy. The commissioner, after dealing with various complaints for a number of years, has made such a recommendation to the Minister. But he would not be permitted to make that recommendation if clause 89 is retained in the bill, as he would have to have regard to that clause and investigate matters in such a way that they would "not be beyond the resources appropriated by Parliament". The Minister cannot have it both ways. A letter which I have from the Australian Consumers Association, which is dated some months ago, states:
We see it as vitally important that the Commissioner has a strong and broad role in the investigation of systemic problems in the provision of health services. We are pleased to see that the bill has been amended so that the Commission is able to investigate systemic issues without first receiving a complaint or without having to seek approval from the Director-General or the Minister.
The Australian Consumers Association is disappointed with clause 89, which as we know states that such a recommendation must be made but it must not be beyond the resources appropriated by Parliament or inconsistent with government policy. One of the benefits of this amendment is that it will enable the commissioner to make a recommendation that may well be outside government policy, but which will enable the Government to change its policy. It is not acceptable to have this constraint in the bill. I support the amendment.
Mr PHILLIPS (Miranda - Minister for Health) [11.45]: The Deputy Leader of the Opposition said earlier that clause 90 is ridiculous because it does not enable the commissioner to report. That is nonsense! He will be able to investigate systemic problems and report on those problems and concerns. It is up to the department and the Government to establish through the medical profession and the health system the best way to resolve that problem. The independent commission can make reports and point out problems. There is nothing wrong with that. It is most appropriate for a complaints commission to do those things. We must ensure that systemic problems that are referred to the department are responded to. The bill states that if the director-general does not resolve that problem and the commissioner is still concerned about it he should bring it to the attention of the Minister. If the Minister does not respond the commissioner can, through a separate report, bring it to the attention of the Parliament.
That is the appropriate role for the complaints commission. It is not appropriate for the department to receive a complaint and establish how to resolve that complaint through the management team, the Nurses Association or whoever else is involved. If complaints are not resolved, the commission has to report to this Parliament, and the Government could get kicked to death. A problem that has been reported recently in the media concerns radiotherapy. There is a move by radiologists to install additional machines throughout the State. They have gone outside their 10-year plan. Sixty per cent of people who go for treatment are dying. The Government and the department have to address that systemic problem. To whom is the commissioner to respond if a complaint is made and there is significant concern about the way in which a matter has been handled? Will the commissioner respond to those organisations and consumer groups that have put enormous pressure on him to address a problem? We all know how health groups fight for their share of the cake. The commissioner is looking only at that share of the cake.
Let us say that the commissioner produces a report and recommends that the Government should move in a certain way. He has to have the resources to do this effectively. The Government is concerned because there will be a duplication of resources. A new review group will be created to come up with the answers, so resources have to be provided. When the report is handed to the department, the department then has to take the report into account. But the department also has to consider how to allocate its total budget. The department would then have to investigate the matter and come up with its own solution; therefore, there would be further duplication in the system. A system would have to be introduced and then argument would take place about whether the recommendations were right or wrong having regard to the weight of a complaints commission report. That would put enormous pressure on the department. From where does the department shift resources? That is the big challenge in the provision of health services.
Ms Moore: It does not need resources.
Mr PHILLIPS: The honourable member for Bligh obviously does not understand political pressure. I would have thought someone with her political experience -
Ms Moore: I thought you could handle political pressure. What are you worried about?
Mr PHILLIPS: One of the huge problems in the health area is that for years the health system has not been planning sensibly on expenditure. It Page 5609 responds to political pressure. it builds a hospital there, and puts new equipment there - all based on political pressure. That is the whole problem.
Ms Moore: You can handle political pressure.
Mr PHILLIPS: I thank the honourable member for the compliment, but successive governments and Ministers in the past have run health services based on political decision-making right down the line - and that has to stop - in response to political pressures. A whole range of people compete for health services. They want a bit of money for the treatment of cancer, heart, toes; and they want money for certain pieces of equipment. The list goes on. The commissioner would be dragged into that whole process, asked to make recommendations, and to point out and determine problems. The complaints commission has to ensure that a process is in place to enable the department or the government of the day to address problems in the system. All those protections are in the bill, but the Independents want to broaden the process. The Government opposes the deletion of the clause.
Dr MACDONALD (Manly) [11.51]: The Minister is now moving into an area where he is trivialising the role of the commissioner. Nothing in this amendment would cause the commissioner to respond to political pressures. It has nothing to do with political pressure; it relates to information the commissioner may accrue because of a series of complaints or other matters that may come to his attention. One can envisage a situation, for instance, where the commissioner receives a series of complaints relating to unsuccessful vaccination; it may seem that a government vaccination program - perhaps a new vaccination program for meningitis, which has recently been introduced - is clearly not working.
He would seek to make a recommendation to the Government that the program be undertaken every five years instead of every 10 years - or even annually. That would have a cost effect on moneys Parliament appropriates for the health budget. Would it be proper that the commissioner could not make such a recommendation because he would have to have regard to the provisions of clause 89? Example after example could be given where the commissioner would not be able to make a responsible and informed recommendation. Therefore clause 89 should be deleted. Nothing the Minister has said satisfies me that the Independents should not support the Opposition's amendment.
Mr PHILLIPS (Miranda - Minister for Health) [11.53]: The Government is particularly concerned about this amendment and about how it could be dealt with in the upper House, having regard to the imbalance that exists in that House. I have not consulted with members of the upper House about their attitudes to this type of substantial change. However, if it were passed, the whole process that has taken place in the past three years would be a waste or time and a farce. A fundamental issue of principle is involved. The Independents say they want the Government to consult and compromise. The Government has compromised and shifted and the Independents now say, "Thanks very much for shifting that way. We do not care about your position; we do not care about compromising with you. We are going to drag you screaming". That is not what consultation is about. Agreement was reached with the Public Interest Advocacy Group and the Australian Consumers Association. They say they agree with the bill as it stands and would like it reviewed in three years. They want to see the legislation operating and to see how it works
Ms Moore: Let us do it.
Mr PHILLIPS: Let us do it! After how many amendments tonight! Is there to be a major policy, or philosophical position, shift after three years. That is what the Independents are asking us to do. That would be going beyond the consultation process that we carried out with PIAG and others who say they understand the Government's position. It is not a fundamental principle to these people, but they compromised and reached agreement on it. However, the Independents will not.
Dr MACDONALD (Manly) [11.55]: I am disappointed that the Minister is taking the stand that he may call off or adjourn the bill. I remind the Minister of remarks he has made in the context of this debate over the past few hours. He said if there is a problem with certain clauses the matter could be considered by the parliamentary standing committee or to reviewed at the end of three years. If this clause is omitted and it creates the problems that the Minister has referred to - such as the world will fall in, the health budget will blow out, government policy will be destroyed - that would become obvious to the parliamentary standing committee and to the review process, and therefore an appropriate amendment could be moved to the legislation. In the opinion of the Independents the Minister is hoist with his own petard. He invited us to subject the bill to the review of the standing committee. If the amendment is successful, I invite the Minister to do the same.
Ms MOORE (Bligh) [11.56]: I support the deletion of this clause. It may well be that we are reaching the end of a long debate on an important bill.
Mr Phillips: She cannot be trusted. We had discussions on this two weeks ago. And you cannot be trusted - especially you.
Ms MOORE: This bill has the support of many groups and has had the support of the majority of members, as has been evidenced by the debate. However, the Minister's present behaviour is extraordinary. There is no reason for him to react in this way. There is no reason to restrict recommendations by the commissioner, which have no binding effect on the Minister. If the clause remained in the bill, it would prevent recommendations consistent with the recent Burdekin report and recommendations of the Chelmsford inquiry. Those are good reasons why the Minister should be a little more accepting and understanding of what most honourable members think is very important.
Page 5610
Mr HATTON (South Coast) [11.58]: I do not understand the comment about "cannot be trusted". The indications that were given to the Minister - and they were not firm indications - were that some of the Independents would not refer this to a committee. The Minister does not want to accept amendments; he becomes upset when he gets amendments. He did not want the bill referred to a parliamentary legislation committee. He did not get his own way, and he makes accusations against the people who have tried to work with him. I object to that. He wants to call off the bill. He tries people's patience; he has certainly tried my patience. I would not vote for an adjournment of this bill.
If there are problems, they should be fixed in another place. Discussion has been reasonable until now. I know it is late, but the Minister is not correct in making the allegation against my colleague the honourable member for Bligh. We have tried to talk reasonably and to make ourselves available to discuss legislation. If one does not get one's own way, that is the way it is. I do not understand why the Minister is so afraid of this amendment. He is building up fear about pressures that will arise if the commissioner makes recommendations on systemic problems within the health department.
Mr Phillips: No, that is not right. He can make reports on systemic problems.
The TEMPORARY CHAIRMAN (Mr Rixon): Order! The honourable member for South Coast has the call.
Mr HATTON: The point is that the Minister is not bound by the recommendations. As the honourable member for East Hills stated, independence is the core of the bill. Because it does not suit government policy and the Government does not have the money the Government says, "I am sorry, you are independent in all other things but you cannot make recommendations on systemic problems because we simply do not have the money". A commissioner can make recommendations. Political pressures must be resisted, but if there is a systemic problem, perhaps to do with mental health, it would be recreant of the commissioner not to forcibly point out that problem to the public.
Mr PHILLIPS (Miranda - Minister for Health) [12.1 a.m.]: The honourable member for South Coast is absolutely correct. The commissioner would be negligent if he did not point out a problem. That is the whole principle; that is where he should draw the line. He should point out the problem. It is then the responsibility of the department and the Minister and, if they do nothing, it is for the Parliament to find a solution to the problem. It is a crazy administrative step to require a commissioner, who is a lawyer-type person, together with legal people to investigate complaints, to carry out a three-year Burdekin-type investigation and to make recommendations on certain matters.
If the commissioner identifies a systemic problem in mental health and reports that matter to the department and the department does not address the problem, the commissioner can say to the Minister that the department has not addressed the problem and that the Minister should then consider the matter. If the Minister does not then do so, a separate report can be prepared for the Parliament. If in that process the department or the Minister decides that a full-scale inquiry, similar to the Burdekin inquiry, is needed to determine major systemic changes, that will be implemented. But that is not the role of the commission.
The honourable member is trying to make the commission all things to all men. It is too big a task. Let it concentrate on what it is commissioned to do: to keep an eye on the professions, the workers and the health system to keep them honest, on track, and to put a process in place to ensure that people respond to fixing the problems. That is the commission's role. I have said a number of time during the debate that the commission should not be distracted from that role. The honourable member is trying to solve every problem with this one bill. Community services also play an important role in caring for the mentally ill - and the Burdekin report referred to that - as well as home care issues relating to mental illness, or aged care. The honourable member did not say the provision was wrong in the community services bill, but suddenly he says that it is different with the health commissioner. Why? All the protections are available. The commission should concentrate on the job of implementing the legislation, catching the bad guys or bad girls in the system, identifying systemic problems, and reporting them to Parliament, if necessary, through an annual report. That will keep the system honest.
The commission will do a magnificent job if it is allowed to do that, but if it is to go into the fine detail of solving problems, officers of the commission might as well join the Department of Health. That is not the commission's role. Resources would have to be provided. Where would they come from? Duplication would be necessary, because a responsible department would consider and investigate the recommendations and then make a decision. That will be done anyway, depending on the particular problem. It would make no real difference to the system. Perhaps I was a bit sharp earlier with the honourable member for South Coast. That was because in this complex and difficult area it is impossible to have total bipartisanship between all the conflicting groups, from the medical profession through to the consumer groups. It is the same in this Parliament. When brought together all the members do not agree 100 per cent.
The measure is designed to protect the credibility of the Health Care Complaints Commission where all parties - the Government, Opposition, Independents, community groups and the medical profession - agree. Outside the Parliament there was agreement but now Page 5611 in the Chamber measures in the bill are being disputed. The bill will do the job. I wanted a bill that would not be subjected to major changes. I wanted changes resolved outside the Parliament, and that is why it has taken a year to address the problems. At this late stage a major philosophical conflict has arisen, yet it makes no difference and, in fact, corrupts the ability of the commission to do what is intended - uncover the baddies and ascertain systemic problems. I thought I had achieved that end. The meeting in the past week or so was all about establishing, in principle, that the Government is right. Minor changes are fine, but when the bill comes before the Parliament we have myriad changes. A large number of amendments have been accommodated. The Government did not, and does not, wish to move on this last issue, yet the Independents want to push the amendment through. That is not consultation and co-operation. I do not have Cabinet approval to agree to this amendment because it has been moved at this late stage.
Ms MOORE (Bligh) [12.8 a.m.]: I think the Minister is overreacting. The Independents are proposing that questionable limitations be removed on recommendations by the commissioner. If the Minister feels so strongly that the bill cannot proceed if the amendment is passed, I give an undertaking not to support the deletion of the clause, because I think the bill should be passed.
Mr PHILLIPS (Miranda - Minister for Health) [12.9 a.m.]: I hope I have demonstrated that I feel strongly about this matter. I am genuine about that. If I heard the honourable member correctly to say that she would prefer to see the bill pass through this Chamber, I appreciate her support. A review of the complaints commission should be carried out in two to three years to see what further advances can be made to improve the legislation.
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [12.9 a.m.]: I wish to add to the mechanics of the amendment. If this clause is defeated, it must go to the upper House. If it is reinserted in that House, the Opposition will accept the decision that House makes. There is no point having a bill that is not acceptable to both Houses. It is reasonable to demonstrate the will of this House. The Opposition wants to complete the bill.
Mr PHILLIPS (Miranda - Minister for Health) [12.10 a.m.]: It is a nice ploy by the Deputy Leader of the Opposition. My concern is that at the present moment with the changes that have occurred in the upper House because of the accident to Reverend the Hon. F. J. Nile and his health condition, I do not know what position of this bill would take on the program in that place. Obviously, I would be reluctant to proceed for a couple of reasons. First, we have little time left in this place for legislation. Second, the upper House is bogged down by a couple of major debates, the duration of which is unknown.
My concern is, first, that a bill is passed to which the Government is not committed and, second, we have unnecessary delays that may mean the bill is not finally delivered, the Parliament is prorogued and the bill is continued next year. The process should be cut and the bill should be passed. I am prepared to look at amendments of the upper House to ensure that the bill obtains as smooth a passage as is possible in the upper House with the other amendments that have been agreed to because the bill needs to be passed without any risks.
Question - That the clause stand - put.
The Committee divided.
Ayes, 42
Mr Baird Mr W. T. J. Murray Mr Beck Mr D. L. Page Mr Blackmore Mr Peacocke Mr Causley Mr Petch Mr Chappell Mr Phillips Mr Cochran Mr Richardson Mrs Cohen Mr Rozzoli Mr Collins Mr Schultz Mr Cruickshank Mr Small Mr Downy Mr Smiles Mr Fraser Mr Smith Mr Glachan Mr Souris Mr Griffiths Mr Tink Mr Hartcher Mr Turner Mr Humpherson Mr West Dr Kernohan Mr Windsor Mr Kinross Mr Yabsley Mr Longley Mr Zammit Ms Machin Mr Merton Tellers, Ms Moore Mr Jeffery Mr Morris Mr Kerr
Noes, 43
Ms Allan Mr Markham Mr Amery Mr Martin Mr Anderson Mr Mills Mr A. S. Aquilina Mr Moss Mr J. J. Aquilina Mr J. H. Murray Mr Bowman Mr Nagle Mr Clough Mr Neilly Mr Crittenden Mr Newman Mr Doyle Ms Nori Mr Gaudry Mr E. T. Page Mr Gibson Mr Price Mrs Grusovin Dr Refshauge Mr Hatton Mr Rogan Mr Hunter Mr Rumble Mr Iemma Mr Scully Mr Irwin Mr Sullivan Mr Knowles Mr Thompson Mr Langton Mr Whelan Mrs Lo Po' Mr Yeadon Mr McBride Tellers, Dr Macdonald Mr Beckroge Mr McManus Mr Davoren
Page 5612
Pairs
Mr Armstrong Mr Carr Mrs Chikarovski Mr Harrison Mr Fahey Mr Knight Mr Hazzard Mr Shedden Mr O'Doherty Mr Ziolkowski
Question so resolved in the negative.
Clause omitted.
Schedule 3
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [12.20 a.m.]: I move:
Page 49, Schedule 3. After line 26, insert:
Coroners Act 1980 No. 27
After section 23, insert:
Malpractice by health practitioner
23A. A coroner is required to notify the Health Care Complaints Commission constituted under the Health Care Complaints Act 1993 of any evidence given in an inquest of malpractice by a person who is a health practitioner within the meaning of that Act.
The intention of the amendment is to amend the Coroners Act to make it a requirement that a coroner must notify the complaints commission of any evidence given at an inquest of malpractice by a health practitioner. At present the coroner may notify the complaints unit. I understand that the coroner almost always, if not always, does that. I want to strengthen the provision and make it compulsory for the coroner to notify the commission so that malpractice will never again be overlooked. The coroner is more likely than other judicial officers to find evidence of malpractice or problems with the health care system than individual complaints will point up. That is my reason for making it mandatory that a coroner notify the commission of any evidence of malpractice.
Mr PHILLIPS (Miranda - Minister for Health) [12.24 a.m.]: This is another area of concern. The new Health Care Complaints Commission is not intended to venture into the role of the coroner, one of the most revered areas, I suppose, of integrity. The bill requires the coroner to report. We sought advice from the Minister for Justice on this matter early in the consultation process - back in April, in fact. To cut a long story short, the Minister for Justice advised - after advice I am sure from the coroner - that he did not believe that the current system of discretionary referral should be replaced with a mandatory requirement. I am sure that the Act will manage that. The Act should not include a requirement that the coroner must do something that I am sure he would probably ignore anyway. I understand the sentiments behind the amendment, but it is the integrity of the process from the coroner's point of view that is of concern.
Question - That the amendment be agreed to - put.
The Committee divided.
Ayes, 45
Ms Allan Mr Markham Mr Amery Mr Martin Mr Anderson Mr Mills Mr A. S. Aquilina Ms Moore Mr J. J. Aquilina Mr Moss Mr Bowman Mr J. H. Murray Mr Clough Mr Nagle Mr Crittenden Mr Neilly Mr Doyle Mr Newman Mr Gaudry Ms Nori Mr Gibson Mr E. T. Page Mrs Grusovin Mr Price Mr Hatton Dr Refshauge Mr Hunter Mr Rogan Mr Iemma Mr Rumble Mr Irwin Mr Scully Mr Knight Mr Sullivan Mr Knowles Mr Thompson Mr Langton Mr Whelan Mrs Lo Po' Mr Yeadon Mr McBride Tellers, Dr Macdonald Mr Beckroge Mr McManus Mr Davoren
Noes, 43
Mr Baird Mr D. L. Page Mr Beck Mr Peacocke Mr Blackmore Mr Petch Mr Causley Mr Phillips Mr Chappell Mr Photios Mr Cochran Mr Richardson Mrs Cohen Mr Rozzoli Mr Collins Mr Schipp Mr Cruickshank Mr Schultz Mr Downy Mr Small Mr Fraser Mr Smiles Mr Glachan Mr Smith Mr Griffiths Mr Souris Mr Hartcher Mr Tink Mr Humpherson Mr Turner Dr Kernohan Mr West Mr Kinross Mr Windsor Mr Longley Mr Yabsley Ms Machin Mr Zammit Mr Merton Tellers, Mr Morris Mr Jeffery Mr W. T. J. Murray Mr Kerr
Pairs
Mr Carr Mr Armstrong Mr Face Mrs Chikarovski Mr Harrison Mr Hazzard Mr Shedden Mr Fahey Mr Ziolkowski Mr O'Doherty
Question so resolved in the affirmative.
Amendment agreed to.
Page 5613
Mr PHILLIPS (Miranda - Minister for Health) [12.33 a.m.]: I move:
Page 51, Schedule 3, line 20. After "functions", insert "in relation to a complaint that is in the course of being dealt with by the Commission".
This amendment enables complainants to use the Freedom of Information Act to seek documents from the Health Care Complaints Commission after completion of an investigation. This amendment delivers on a commitment made to the Independents prior to today, and to the Opposition today, about inclusion of this amendment to supersede other amendments they wanted to pursue. The Government's primary concern in relation to this clause has always been to preserve the integrity of the investigative process. The honourable member for Manly, however, has brought to my attention the position of complainants wishing to access documents after completion of the investigative process. He has expressed concerns that the current proposals will disadvantage complainants unnecessarily. I am sympathetic to this view.
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [12.34 a.m.]: I place on record my appreciation of the Minister's moving of the amendment and the work that the honourable member for Manly has done in assisting the Minister to come to this decision. It is a major change from the original proposal and will give strong support to those who have been concerned about the proposed legislation. The amendment is of great significance and I congratulate the Minister on introducing it.
Amendment agreed to.
Schedule as amended agreed to.
Bill reported from Committee with amendments, and report adopted.
DAIRY INDUSTRY (AMENDMENT) BILL
Second Reading
Debate resumed from 11th October.
Mr MARTIN (Port Stephens) [12.38 a.m.]: At this hour of the morning I indicate that the Opposition will be supporting the bill, but I will be seeking from the Minister certain assurances. The bill is about deregulation of the 1,500 milk vendors in New South Wales. Those milk vendors have spent between $100 million and $120 million buying their runs. They are providing a very special service to the people of New South Wales by delivering milk to their homes. They are providing a special service to those least able to have this vital commodity delivered in any other way to their homes. The Opposition has supported those people through thick and thin.
From the very beginning the Australian Labor Party has said that milk vendors must have justice. Those vendors were nearly done over by the previous Minister for Agriculture and Rural Affairs on 7th May, 1992, when he flippantly introduced legislation that failed to address the two vital issues of access to compensation and business rationalisation. I am pleased that those matters are included, in brackets, in the explanatory note to the bill. I congratulate the Minister on being a little more visionary and much smarter than his predecessor in addressing this vital issue. At this hour of the morning I will not go into great detail in singing the praises of the Minister for Agriculture and Fisheries and Minister for Mines, but I will seek certain assurances. I note one of the objects of the bill is:
(a) to provide for the removal, on and from 1 July 1998 (or an earlier agreed date), of zoning and other restrictions on the delivery of milk by registered vehicle vendors and to deal with ancillary matters (including compensation and the rationalisation of the businesses of vehicle vendors); and
Other objects of the bill are expressed in paragraphs (b), (c), (d) and (e). Object (a) includes the qualification "or an earlier agreed date". It is vital that the Minister clearly indicate the intent of that piece of legislation. The Minister has rightfully extended the deregulation period from 1997 to 1998. About 1,500 of these people have invested $100 million to $120 million in their businesses. They require a genuine commitment from the Government - and when the Labor Party is in government after 1995 it will give the commitment not to deregulate before that date - to allow milk vendors an appropriate time to readjust their businesses.
I assure the Minister that every member on this side of the House expects the Minister in reply to indicate very clearly that the Government will guarantee that deregulation will not occur before an earlier date unless the most unforeseen circumstances arise and the Government has the agreement of the whole of the industry that that deregulation should take place at an earlier date. I seek that assurance from the Minister in the most sincere way. This legislation, which was first introduced on 7th May, 1992, by the Minister's predecessor, now the Leader of the National Party, was flawed. This side of the Parliament stood firm. I congratulate the Government on its negotiating powers and its ability to see reason, resulting in the inclusion in object (a) of the bill of the terms "or an earlier agreed date" and "including compensation and the rationalisation of the business of vehicle vendors".
The inclusion of those qualifications make the bill acceptable. If that object had not been in the bill the Labor Party would have voted against it, and I am confident that this side of the Parliament would have won that vote. Members on this side of the Parliament have a very strong commitment to ensure justice. The Labor Party has conducted lengthy negotiations with the Amalgamated Milk Vendors Association. I congratulate Bob Grey, the organiser of that group, who has so well represented it. He came to us and told us the requirements of the milk vendors. Bob Grey said to us he wanted those two conditions added to the formerly flawed piece of legislation. Those conditions have been included and the Labor Party accepts the legislation.
Page 5614
This bill will rely on good will between the milk processing companies and the milk vendors. It will have to be monitored carefully and policed by the Minister because, if it is not and some smart and slick operator comes into play, the milk vendors could lose their $100 million investment. We cannot let that happen. Here is a way - as distinct from the way that the Government deregulated the egg industry and cost the State $86 million - that gives vendors a fair time to readjust while giving the industry the opportunity to enter a new phase of milk vending in New South Wales.
Because of the hour of the day, because of the verbal commitment from the Government in the past and from indications that the Labor Party has had from the Amalgamated Milk Vendors Association, the Opposition is prepared to support the bill. I look forward to the Minister in reply giving a guarantee that there will be a fair adjustment period so that those who have invested money will have sufficient time to readjust their lives and ensure that New South Wales has a viable milk vending industry that will, hopefully, maintain a home delivery service that is fair and equitable to all the people of New South Wales. The Opposition supports the bill.
Mr CAUSLEY (Clarence - Minister for Agriculture and Fisheries, and Minister for Mines) [12.46 a.m.], in reply: I thank the honourable member for Port Stephens, at this early hour of the morning, for supporting the bill. There is no use traversing all the ground that led to the bill; suffice to say that this measure was probably forced upon New South Wales by the actions of its sister State south of the border whose milk was being brought across the border and sold in some New South Wales supermarkets, undermining the regulated system of milk sales in New South Wales. I agree that the vendors were in a very vulnerable situation. They had paid good money for their runs. They were in a situation where they could have lost all of that and it was necessary to try to help in some way.
The bill assists by paying the milk vendors compensation, and in that regard the bill provides for the setting up of a fund. Though I would not dream of allowing the honourable member for Port Stephens to put words in my mouth, I can assure him that there is nothing sinister in the legislation. If it is possible to pay out vendors earlier, the Government will pay them out earlier; otherwise it will carry on and that is why the time has been extended. There is nothing sinister in the words. There are sections of the industry within New South Wales that could be causing grave concerns in view of this particular piece of legislation and the whole process of the deregulation of the milk industry. People are holding out and refusing to pay the levy proposed in this bill. I will be talking very sternly to those people and asking them to respect the rights of the rest of the industry and not undermine it. It is a very real risk. This Parliament must understand that.
The industry relies on good will and, given that the period of time has been extended and given the good will that I hope will be extended by all sections of the industry, the vendors will be protected. Obviously, in a deregulated market, they probably will not have the type of runs that they have had, but I believe there will always be room for milk vendors, though it may be on a smaller scale than we have today. The main thing is to endeavour to give milk vendors some rights in the areas they have bought into and to give them some protection. I can assure the honourable member for Port Stephens that I will do all I can to protect that area. I reiterate that if someone wants to step outside the gentlemen's agreement, I will certainly be talking to them very severely and asking them to adhere to the agreement that has been reached in this bill. I thank the Opposition for supporting the bill. I think it will be a step in the right direction. I commend the bill.
Motion agreed to.
Bill read a second time and passed through remaining stages.
CRIMES (DOMESTIC VIOLENCE) AMENDMENT BILL
BAIL (DOMESTIC VIOLENCE) AMENDMENT BILL
Second Reading
Debate resumed from 15th September.
Mr WHELAN (Ashfield) [12.50 a.m.]: The Opposition agrees with the Government's general amendments in regard to the Crimes (Domestic Violence) Amendment Bill, the Bail (Domestic Violence) Amendment Bill and its consequential amendments to the Firearms Act. I will amend some portions of the main bill in order to strengthen it. Honourable members would be aware of the Government's announcement concerning the tragic and needless death of Andrea Patrick. That announcement was made in response to the Opposition's statement that the Crimes Act will be amended to strengthen the law dealing with domestic violence. The Government's bill will amend certain provisions of the Act in several ways. The objects of the Bail (Domestic Violence) Amendment Bill are:
(a) to remove the presumption in favour of bail in relation to domestic violence offences . . . if the accused has a history of violent behaviour; and
(b) to remove the presumption in favour of bail in the case of murder;
The main features of the Crimes (Domestic Violence) Amendment Bill are:
(a) to enable Magistrates . . . to make interim apprehended violence orders . . . on the application of police officers by telephone, in circumstances in which the personal safety of a person may be at immediate risk . . .
(b) to create a separate offence of intimidation in connection with domestic relationships . . .
(c) to increase the penalty for offences relating to breaches of apprehended violence orders . . .
(d) to enable young persons over 16 years of age to make complaints on their own behalf for apprehended violence orders . . .
Page 5615
I intend to move a number of amendments to both pieces of legislation. The Opposition intends to move the following amendment to the Bail (Domestic Violence) Amendment Bill:
Page 3, Schedule 1(2), lines 6 and 7. Omit all words on those lines, insert instead:
if the authorised officer or court is satisfied that:
(c) the accused person has a history of violence against any person; or
(d) there has been previous violence by the accused person against a person in respect of whom the offence referred to in paragraph (a) or (b) is alleged to have been committed (whether or not the accused person has been convicted of an offence in respect of that previous violence); or
(e) it is in the public interest that the accused person not be entitled under section 9 to be granted bail.
The Government introduced the Bail (Domestic Violence) Bill following the 1991 report by the Domestic Violence Committee. I intend, at the Committee stage, to criticise the Government for failing to introduce various recommendations in that report. Apparently, the Government addressed 68 per cent of those recommendations, but the difficult ones have not been addressed. As I have said, I will canvass those matters in Committee. Although the bill is going in the right direction, it does not go far enough. The provisions in the bill regarding an accused person who has a history of violence and who is found guilty of an offence committed against any person are too restrictive; the definition is not adequate. That definition is:
If the accused person has been found guilty, within the last 10 years, of a personal violence offence . . .
Domestic violence does not necessarily lead to a court case or a conviction. In many instances domestic violence cases do not end up in the courts. To that extent the Government is short-changing those who are seeking protection. For that reason I will be moving to insert:
(d) there has been previous violence by the accused person against a person in respect of whom the offence referred to in paragraph (a) or in (b) is alleged to have been committed (whether or not the accused person has been convicted of an offence in respect of that previous violence;
An applicant for a domestic violence order could approach a magistrate and say, "I have been a victim but my assailant has no previous history of violence". Honourable members should bear in mind that the definition of "history of violence" is "if the accused person has been found guilty, within the last 10 years". Bail is not applicable in those circumstances. I hope the Government and Independent members, who have an interest in this matter, think seriously about my foreshadowed amendment. I have also foreshadowed that I will be moving the following amendment:
(e) it is in the public interest that the accused person not be entitled under section 9 to be granted bail.
That amendment speaks for itself. I hope the Government will support it. I have circulated a series of amendments to the Crimes (Domestic Violence) Amendment Bill. I was distressed to read a press release issued tonight by the Premier. He tried to trivialise a serious matter in our community, namely, the protection of women by the strengthening of domestic violence laws. I thought the Premier was churlish; in fact, quite insincere, when he said in his press release:
Bob Carr appears to have taken his advice from Peter Nagle, the member for Auburn, who believes domestic violence is okay.
I thought we resolved that issue yesterday. It is disappointing that the Premier of this State made such a public statement on this issue. We should be looking for leadership. We should be arguing about mere technicalities rather than about who gives people advice. No one - the Government, the Opposition or the Independents - will be right on this issue. We are trying to design a bill which will enable women suffering from domestic violence to obtain access to the court to prevent it. There are some good initiatives in the Government's bill. The provision which will allow police officers to obtain apprehended violence orders by telephone is very important. The Opposition supports that measure. While I have some questions concerning that measure I have no problems with it. My first amendment to the Crimes (Domestic Violence) Amendment Bill will be as follows:
Page 3, Schedule 1(1)(d). After line 3, insert:
"intimidation" means the causing of a reasonable apprehension of:
(a) injury to a person or to any member of his or her family or household; or
(b) violence or damage to any person or property.
My amendment will introduce the specific offence of stalking. It will be argued later why the offence of stalking is different from the offence of intimidation. Those people who are briefing the Government should advise the Government what is meant by the offence of stalking and what is meant by the offence of intimidation. My amendment states:
"stalking" means the following of a person about or the watching or frequenting of the vicinity of or an approach to a person's place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity, with the intention of intimidating the person or in a manner which may reasonably be thought likely to intimidate the person;
I will return to that definition in Committee when I will speak at length to all my amendments. My second amendment is as follows:
Page 3, Schedule 1(1). After line 6, insert:
(e) at the end of section 562A, insert:
(2) For the purpose of determining whether a person's conduct amounts to intimidation, a court is to have particular regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour and the effect this would be likely to have on the way the person alleged to have been intimidated would view the behaviour of the person.
Page 5616
My third amendment is:
Page 3, Schedule 1 (2), after line 7, insert:
(a) At the end of section 562B(1)(b), insert:
;or
(c) the engagement of another person in conduct in which the other person:
(i) intimidates the person or a member of his or her family or household; or
(ii) stalks the person; or
(iii) follows the person about or watches, or frequents the vicinity of or at approach to the person's place of residence, business or work or any place that the person frequents for the purpose of any social or leisure activity,
being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.
My fourth amendment is:
Page 4, Schedule 1(3). After line 20, insert:
Order prohibits stalking, intimidation etc.
562BC. Every order (including an order made before the commencement of this section) is taken to specify that the defendant is prohibited from doing any of the following:
(a) engaging in conduct that intimidates the protected person or a member of his or her family or household;
(b) stalking the protected person;
(c) following the person about or watching, or frequenting the vicinity of or an approach to the persons' place of residence, business or work or any place that the person frequents for the purposes of any social or leisure activity.
My amendment No. 5 is:
Page 4, Schedule 1(3). Before line 21, insert:
Order can also protect family etc.
562BD. The power of a court under this Part to make an order for the protection of a person extends to authorise the making of an order for the protection of a person who is a member of the family or household of the person for whose protection the order was applied for.
And amendment No. 6:
Page 9, Schedule 1(8). After line 6, insert:
(b) After section 562I(1), insert:
(1A) A person who recklessly contravenes a prohibition or restriction specified in an order made against the person is guilty of an offence.
Maximum penalty: 20 penalty units or imprisonment for 6 months, or both.
My seventh amendment is:
Page 9, Schedule 1(9). After line 30, insert:
(b) After section 562J(3), insert:
(4) The Commissioner of Police is to make a record of the details of the material forwarded to the Commissioner under this section and is to retain that record for at least 10 years after the order to which it relates ceases to be in force.
And amendment No. 8:
Pages 10 and 11, Schedule 2(2), line 18 on page 10 to line 20 on page 11. Omit all those lines, insert instead:
Stalking
545BA.(1) A person who follows another person about or watches or frequents the vicinity of or an approach to another person's place of residence, business or work or a place that another person frequents for the purposes of a social or leisure activity, with the intention of intimidating that other person or in a manner which may reasonably be thought likely to intimidate that other person is guilty of an offence.
Maximum penalty: 20 penalty units or imprisonment for six months, or both.
(2) In this section:
"intimidation" means the causing of a reasonable apprehension of:
(a) injury to a person or to any member of his or her family or household; or
(b) violence or damage to any person or property.
(3) An offence against this section and section 562I (Offence of contravening order) may be prosecuted and punished under either of those sections, but a person is not to be punished twice for the same offence.
One of the arguments that will be raised by the Government about that amendment - I acknowledge that it will be raised as I am quite impressed by the definition that the Government has about intimidation and I do not want to throw the baby out with the bath water; it is something I have been pressing for all along - is that section 545B (1) of the Crimes Act deals with an old law and an old trade union rule that relates to third party rights. It does not relate to domestic violence. Section 545B (1) defines intimidation as causing reasonable apprehension of injury to a person or to his or her family or dependants; but it deals principally with third parties. It does not deal with domestic violence, which I have been asking the Government to consider inserting into part 15A, the apprehended violence section.
I do not believe that the Government is changing the text of the definition of intimidation with full sight and knowledge of what it is doing. If it intends to amend the Crimes Act for the purpose of attacking trade unions officials by increasing penalties for those who watch and beset - that is how old the Act is and that is what it says; it came out of the 1929 strikes - or hide any tools, clothes or other property owned by them, this conviction will arise. The Government wants to raise the penalty from six months to two years and 50 penalty units. I can understand that, except this should not be part of the domestic violence law. In essence this amendment by the Government under the cover of the domestic violence law is aimed at trade union people who might picket. If the Government is intending to do that, I am very disappointed that it chose these bills to introduce the proposed amendment.
It is most inappropriate. It is apropos to denying trade union officials the right to picket. It really is third party law. There is no implication that a domestic relationship is referred to in the intimidation section of the Crimes Act, which is section 545B(1). I acknowledge that the Government has included that provision, and I like some of the definitions in the amendment. But, I plead with the Government to do something about domestic violence. Let us not get into an argument now about watching and besetting, intimidating trade union officials. Let us confine the debate to improving the rights of people - women in particular - who are the victims of domestic violence.
Page 5617
The Labor Party wants to introduce the offence of stalking, which is in my amendment No. 8. That will follow the intimidation provisions. It is a new provision. It does not necessarily mean that a person would have to be suffering domestic violence, but it will cover those circumstances. The amended definition is a composite of American law, and I am grateful to my colleague the honourable member for Liverpool for his assistance in that respect. It includes a definition. Again, this is not part of the apprehended violence provisions; it is the creation of a separate offence. I hope the Government will consider that as well.
The Government has several amendments to part 15A of the bill, but I draw the attention of honourable members to the fact that, other than by implication, very little is referred to in the whole of this legislation. Part 15A makes little mention of domestic relations. The Labor Party's view is that, with intimidation and stalking, which are mentioned in the definition section of the apprehended violence order, the court is compelled, on the question of intimidation, to take into consideration and have particular regard to any pattern of violence, especially violence constituting a domestic violence offence in a person's behaviour and the effect this would be likely to have on the way a person is alleged to have been intimidated. It is quite amazing but true that this is the first time that domestic violence has been mentioned in the whole of the apprehended violence order provision of the Crimes Act. So, the Labor Party intends to insert that into the legislation.
The Government has a provision relating to telephone interim orders. More will be said about that when we go into Committee. The Government has amendments relating to complaints, with which we agree, but the consent orders are of some concern. I believe that the prohibitions and restrictions imposed under section 562D are fairly severe. I have a series of amendments - Nos 5, 6 and 7 - with which I hope the House will agree, in order to strengthen the existing provisions of the apprehended violence legislation. These are important bills. It is a shame that they are being dealt with so late at night. But, as I said, they are vital bills for the future of people - particularly women - who are seeking to get some sort of assurance that violence will not be considered irrelevant, as it has been in the past. Many people have written to me about this, but rather than take up the time of the House I will enlarge upon these matters at the Committee stage. I note that the Minister is nodding his agreement with that course.
I have outlined the amendments to be moved by the Australian Labor Party; I hope the Government will consider all of them. We believe that the Government's bills should be supported, particularly at the second reading stage, but my amendments as foreshadowed are intended to try to find an even balance. I am disappointed that the Government does not have its own definition of stalking. There will be arguments at the Committee stage as to whether stalking should be included in the definition of intimidation. The Government should consider evidentiary factors associated with the determination of whether a person is a stalker or an intimidator, and how those factors will be applied in the court. The definition will not only apply in domestic violence situations, but will apply to a person who has been stalked under the definition by any other person. The Opposition will support the bills, and looks forward to detailed consideration in Committee.
Mr LONGLEY (Pittwater - Minister for Community Services, Minister for Aboriginal Affairs, and Minister for the Ageing) [1.12 a.m.]: I support this absolutely essential legislation, which represents a landmark step forward in the Government's comprehensive and effective program of measures designed to combat the totally unacceptable crime of domestic violence. Domestic violence used to be the crime that people did not speak about. Victims would suffer in silence as they feared and doubted even the nature of the crime. I am happy to say that those days are gone and that this Government will never tolerate their return. The Government is exposing domestic violence and those who perpetrate it for what it and they are. The hard pioneering work of all those committed people who have taken the issue of domestic violence from the shadow of fear to the light of justice is a proud achievement for the people involved and, indeed, for our society.
This Government, as in so many of our key areas of social policy, is adopting a well co-ordinated cross-portfolio approach to domestic violence. In the community services portfolio I have recently announced a new 008 free call domestic violence phone service that will provide prompt and professional assistance for women who experience domestic violence. The staff for this service have been recruited and trained specifically in domestic violence issues, including training in legal issues by the Domestic Violence Advisory Service. An amount of $540,000 has been provided to date for this new service, including an extensive publicity and awareness raising campaign. These funds provide for the urgent recruiting of additional staff and the installation of a new telephone system. This important new legislation increases the capacity of the Government and the community to combat domestic violence.
As the Premier said in his second reading speech, the proposed legislation implements many of the recommendations of the New South Wales domestic violence strategic plan. It will create a separate offence of intimidation in connection with domestic relationships and it will increase the penalty for offences relating to breaches of apprehended violence orders. These new measures will send a clear signal to the community that domestic violence will not be tolerated. Combined with the preventative initiatives we are deriving in the community services portfolio, the significant increase in family support services and the large budgeted increases in program areas to help families that I have put forward as Minister, we are well and truly tackling domestic violence. I am sure this legislation will be fully supported by all honourable members and that they Page 5618 will continue to work with the key government agencies in the various portfolios to combat domestic violence. Domestic violence is completely unacceptable in our community. This legislation is an essential step towards its minimisation, and I commend it.
Dr MACDONALD (Manly) [1.15 a.m.]: The incapacity of the law to deal adequately with domestic violence is, I understand, the basis for the introduction of these cognate bills. Indeed, as I consider the Premier's second reading speech it appears that it was the case of Andrea Patrick that prompted these bills to be introduced. Andrea Patrick was known to me for 20 years and died several months ago. I have already described earlier in this place some of the background to those events. This lady was stabbed to death two days after a court appearance in the Manly court, following the arrest of her ex defacto, who had assaulted her on a nearby highway. It was there he was taken into custody and appeared in court later that day. Despite the fact that her family pleaded desperately with the magistrate not to allow the man to go free, their pleas were unfortunately ignored. I recalled to the Parliament yesterday that this history of violence went back over several years and I outlined all that the family had suffered, both directly and indirectly, and how the father of the deceased person had talked of taking the law into his own hands.
I am no legal or court expert but I do have a very strong belief that we need to get things right and strengthen the laws. Quite clearly our system has failed miserably, particularly in the case of this individual. The community demands that we introduce much tougher measures. I implore the Government to adopt the amendments which I shall be putting forward tomorrow to seek to achieve legislation that is consistent with community values and community expectations. That is very much the role of parliamentarians - to try to translate community values into good statutes. The man who took the life of Andrea Patrick had a very long and violent history, probably not untypical of a number of people who are offenders in the most violent cases of domestic violence.
In New South Wales that individual had a record of causing malicious injury in 1987, and assaulting a female in 1988. In other words, he had a history of violence offences. In Victoria he had spent eight months in gaol for a knife attack on the woman, whom he finally killed. Also in Victoria he was heavily fined for attacking the father of the deceased. In Queensland he was convicted of bashing a woman with a baseball bat. So this man who stabbed Andrea Patrick to death in public in the middle of the afternoon outside the Harbord Diggers Club had a very long and clear history of violence. In retrospect, had that information been clearly available to the magistrate I believe the outcome would have been very different. As the Premier said in his second reading speech - and this is where I want to emphasise the importance of a person's history and the fact that it needs to be taken into account - relevant studies indicate also that the best indicator of future violence is a history of violence. The greatest risk situation for domestic violence is where a defendant with a history of violence commits a later act of domestic violence. It is that history of violence that was ignored in this situation and that is the basis for one of my proposed amendments about the preclusion of bail. That is a problem that was clearly emphasised and echoed in the second reading speech of the Premier. The difficulties with the court system that we face, whereby full information is not always available and certain people can present quite plausibly in a court, are underlined in a letter I received from the Minister for the Status of Women, the Minister for Industrial Relations and Employment and Minister for the Status of Women, who wrote to me on this matter in these terms:
I am advised that, in the case of Andrea Patrick, procedures appear to have been followed virtually to the letter, given the evidence before the court. I have been advised informally that Mr Twite presented at the court most plausible and compliant. This case highlights the difficulty in identifying those men who will defy orders or breach bail.
But not, I would suggest, if all information is made available to the court. So the Minister herself appeared to suggest that there needs to be improvement; otherwise repetition of this case is quite likely. Therefore, I have an amendment which will compel the magistrate to have access to information and to take it into account. Others have suffered. The Andrea Patrick case is only used as a highlight. I would like to read to honourable members an anonymous letter which was sent to the Patricks soon after the death of their daughter. The letter reads:
Even though I am a complete stranger, I would like to express my heartfelt sympathy to you and your family. I would also like to thank you, especially Mrs Patrick, for her role in making the public more aware of the inadequacies of our legal system and hopefully in effecting worthwhile changes.
Women like Andrea, I and countless others really do not have any protection against violent partners. I know that, unfortunately, for Andrea it is too late but because of your efforts other women may be spared the same fate.
Andrea's tragic death has shaken me badly because I too, have been subject to domestic violence (physical and emotional) over a very very long period of time. I, like you, could not rely on protection from the legal system. The intervention order I took out was blatantly flouted with very little consequences for the offender. Fortunately? I have survived so far.
With my confidence in the legal system shattered, I have gone to extraordinary lengths to postpone the inevitable: I have moved interstate, I have changed my name, I have given up a promising career, I am unemployed and I am trying to live anonymously. In a way this is a very selfish letter because I am looking to you, who have suffered so much, for help. How many could ever understand the fear a violent man can instil in a woman. I will never feel safe and like Andrea, I know eventually he will find me and kill me. It is an indictment in our "civilised" society that Andrea had to meet such an awful fate and that I and many other women should have to live in fear.
I know that this may be of little comfort to you at this time but be assured that there are lots of people out there who have you in their thoughts, are praying for you and who know that Andrea's death was not in vain.
In the interest of my safety this letter and its contents have to remain anonymous.
Page 5619
That is a very tragic letter and one that reflects an imbalance in society in that it appears that the victims have to suffer, have to hide and have to go around anonymously yet at the same time the offenders appear to have the upper hand. We need to look at the extent of the problem. Bear in mind that 47 per cent of women murdered are killed by their spouses. I asked the Attorney General to provide me with details of domestic violence orders that had been issued. The figure is about 1,700 or 1,800 a month. In October 1992 there were 1,776 domestic violence incidents, the number of persons arrested was 508, the number of domestic violence instances involving actual violence was 609, and so it goes on. So, each month something like 1,700 or 1,800 orders are issued in New South Wales and the breaches in October 1992 totalled 157. What is lacking is the nature of those breaches. I understand that an Australian Labor Party amendment is designed to deal with that. Clearly that would be required if the history of parties is to be known so that bail might be precluded. [Extension of time agreed to.]
Domestic violence is a very widespread issue, as reflected in the number of orders that are issued. I have no doubt that domestic violence orders have been an effective tool in reducing many domestic instances, but we still have a large number of breaches the nature of which is not strictly known. The prevailing attitude in all the documents seems to say the same thing. The National Committee on Violence against Women and the New South Wales Domestic Violence Committee say that domestic violence must be regarded as a crime and not as a problem. Women must not be regarded as male chattels or possessions; they deserve the same protection under the law as you or I would expect if you or I were to walk out into the street. That is clearly not the case now. If you go out and assault a complete stranger in the street you would be arrested. That is not necessarily what happens in domestic violence matters. Another shortcoming is the court's lack of access to criminal records, sometimes within the State and certainly interstate. Bail is made far too easy. I quote from the Manly Daily of 26th October:
Assault Case Man Gets Bail
This is after the Andrea Patrick incident, just some weeks ago:
A 25-year-old Manly man charged with aggravated sexual assault and breaching a domestic violence order was granted conditional bail in Manly court yesterday.
The man cannot be named . . . The man was remanded . . . Police say the victim was scratched and bruised in the attack . . . and was treated at Royal North Shore hospital.
That case is still going on. That sort of thing is tolerated and these sorts of people are able to get bail. It appears to me that access to criminal records is absolutely critical in a situation characterised by repetitive behaviour patterns and obsessive nature. One of the features of domestic violence is that there is really only one victim, and that as such the nature and pattern of the offence are of obsession and repetition. The Australian Labor Party has moved to strengthen the position in relation to stalking. Stalking is also characterised by someone being besotted, the anger that seems to prevail, and often it is very manipulative behaviour. Queensland has looked at this carefully and I have a number of reports from the Queensland media. I quote from the Courier Mail of 25th June, referring to a domestic violence resource centre:
Mrs Struthers said that the centre received up to 50 calls a month from women who were considering moving interstate or overseas to escape "stalkers".
From the Canberra Times I have a report relating to stalking and the law that is proposed in Queensland:
. . . behaviour to be outlawed, with penalties of up to five years in jail, would include persistent phone calls, following and entering a persons's property, remaining outside places the person frequented and harassing a person's family members.
We are talking about a studied and practised syndrome of behaviour where somebody deliberately sets out to cause fear and terror in another citizen and a citizen's family. So, the crime of stalking needs to be strengthened, and I welcome the Australian Labor Party amendments which will be debated tomorrow. I mentioned yesterday that things are dealt with differently in other countries and in other jurisdictions. I want to repeat once again the experience in Quincy in Massachussetts, a town of 750,000 people where there are provisions that anyone who breaches a domestic violence order, even to the point of sending the victim flowers, will be put into gaol. Even sending flowers can be an act of intimidation. The New South Wales Government's record on domestic violence has not been particularly impressive, though there have been some improvements over the years. There has been improved funding for women's refuges, training of police, and some changes to the law.
It is easier now for women to free themselves from brutal relationships. The majority of domestic violence orders do work, but I believe that the Government could have done more; it could have acted much more expeditiously two years ago. It was two years ago that Jane Woodruff came out with the New South Wales Domestic Violence Strategic Plan. That was in June 1991. There were 324 recommendations, but what has been done? Starter signals were sent out in 1991 in the report of the National Committee of Violence Against Women. There is much more that we need to do. I have consulted very widely on this issue. I have met and consulted with Julie Stubbs from the University of Sydney, Anne Mara from the Domestic Violence Advocacy Service, Jane Mudford from the Office of Criminology in Canberra, Professor Tony Vinson from the University of Sydney, Barbara Kilpatrick from the Manly-Warringah Womens Resource Centre, local police, police prosecutors, and the Attorney General's Department. I have also spent some time with the registrar of a Local Court. The measures and improvements in these bills are generally widely welcomed by the people with whom I have consulted.
Page 5620
I do not have all the answers but it is clear that we need to do a lot more than what is encompassed in these bills. I have some amendments. I will be seeking to amend the Bail Act to make it much harder to get bail in cases of intimidation and stalking, and to provide that before bail can be considered there must be access to all records. In the Crimes Act my amendments seek that interim orders can be issued even if there is an arrest. Also, my amendments relate to the making, the validity and the lifting of a telephone order. I seek the support of the House that there should be mandatory imprisonment for specified offences where there are certain breaches of domestic violence orders. That may be uncomfortable for some but I assure this House that that concept has wide support in the community. If there is a breach of a domestic violence order there should be automatic gaol.
Outside the legislative process there are clearly other matters that can be dealt with to assist the victim. They include better resourcing of family counselling, the establishment of more family and personal violence committees, better training of police, accountability of police and magistrates, and counselling of offenders in prison. One final word on the question of how to protect the victim from the offender. I have been in correspondence with the Attorney General about the question of tagging. That is something that apparently cannot be dealt with in this legislation. However, I would like to debate in Committee tomorrow how we might arrive at that point. To quote from the Minister's letter to me of 15th October:
The Ministry for the Status of Women has advised that it is currently examining overseas initiatives in relation to tagging of domestic violence offenders and victim allowable assistance and, indeed,it has been referred to the Domestic Violence Advisory Council because it seems to me that one of the features of domestic violence is that there is a solitary victim and if that victim can be protected from the offender outside of the prison system, hopefully, it appears to me we again would have made marvellous and great strides in terms of improvement.
I commend these bills to the House and in Committee I will be looking for support on a number of amendments.
Mr GAUDRY (Newcastle) [1.35 a.m.]: These are extremely important bills. I speak from the perspective of probably thousands of families across this State who have been victims of domestic violence. Usually there is not just a single victim; usually the victim and the family suffer in a physical sense from intimidation, fear and ongoing depression associated with living in the atmosphere of a violent family. I congratulate the Opposition particularly and the Government on their amendments, which will strengthen the domestic violence legislation. They will establish a much more proactive position for the police, and encourage victims to take recourse against offenders - who in most cases are their partners - who perpetrate acts of violence upon them.
The Opposition's intimidation amendment is very important. In many families the fear of violence and the intimidation associated with male power causes much anguish and stress in their day-to-day lives. The fear of that intimidation leads to a great deal of destruction. It is most important that, whatever action is taken against males in particular who are involved in violent activities against their partners and against their children, there must be proactive counselling, whether by some form of bail condition or agreed remediation or mediation between the parties. It is important that counselling be provided. In many cases perpetrators of family violence need some form of intervention, such as counselling, or strengthened action against them such as domestic violence orders. In this way, if there is an attempt at reconciliation those people will have the opportunity to look at themselves and their behaviour, and to accept the need for some form of remediation in their behaviour. This amendment is perhaps 50 years late. For many families the Government's bills, combined with the amendments proposed by the Opposition, will be extremely important in protecting them against what is an absolutely abhorrent act - violence against women and children.
Mr HATTON (South Coast) [1.39 a.m.]: I want to emphasise a different perspective. I want to put on record my very strong support for these bills. There is no doubt that the victim must be protected and nothing that I say is meant in any way to detract from that. I live Shoalhaven City, which has possibly the highest incidence of domestic violence reported to police in any country area of New South Wales. That is of great concern to me. I want to look at an entirely different aspect that these bills do not address - the origins of domestic violence.
If we are to make a real impact we have to try to trace the origins of violence, what makes people behave in a violent way and, hopefully, get them to come to terms with the fact that they have an anger which they cannot control. We have to get them to recognise that they have a problem and to come to grips with their own life experience. Often this is a history of violence and maltreatment, growing up in a family where the solution to the problem was violence and not knowing differently, being abused and acting with an anger that they cannot control, feeling inadequate, and then seeking to exert their influence over others in a most unreasonable way in order to come to terms with their own inadequacy.
I do not in any way want to explain away the bully, the coward, or the vicious husband, but we must recognise that because of such things as maltreatment, sexual dysfunction, family dysfunction, alcohol and personality defects, these incidents occur and that there is a way in which violent people can be treated. It is extremely cost effective because, if you can treat one offender, break that cycle of violence and get that household functioning in a reasonable manner, the likelihood is that the children who grow up in that household will not become violent. Consequently, you have solved a problem which could have, and often has, gone on for generations. This requires that resources be ploughed into family support and counselling organisations. It requires also Page 5621 recognition that some of the anger is based on frustration caused by events beyond the control of those who suffer deprivation and financial hardship. So, in supporting the need to lock up violent people, to impose restraining orders, and to ensure that those restraining orders work, we must at the same time recognise the other side of the coin: something has to be done about the origin of violence, and resources must be provided to break the violent cycle.
Mr HARTCHER (Gosford-Minister for the Environment) [1.47 a.m.], in reply: I thank the honourable member for Ashfield, the Minister for Community Services, the honourable member for Manly and the honourable member for South Coast for their contributions to the debate. The Government agrees that this is extremely important legislation, not only because of recent very tragic events, but because it is becoming increasingly clear that more steps are needed in our society to protect the victims of domestic violence. I outlined those reasons in my second reading speech on behalf of the Government. I welcome the support that all sections of the House have given for the principles contained in the bills, and I commend them to the House.
Motion agreed to.
Bills read a second time.
In Committee
Progress reported and leave granted to sit again.
ELECTION FUNDING (AMENDMENT) BILL
Second Reading
Debate resumed from 10th November.
Mr MILLS (Wallsend) [1.50 a.m.]: I lead for the Opposition on this bill and indicate that the Opposition will be supporting it. I was a member of the Joint Select Committee upon the Process and Funding of the Electoral System. That committee had a lot of changes in membership, sometimes at short notice, and the Minister for the Environment was chairman of the committee when its Report No. 2, on which this bill is based, was brought forward in September 1992. In speaking very briefly to the bill I want to outline the nexus between the committee's report, the amendments proposed in schedule 1 to the bill and the definition of a gift extending to in kind, or provision of a service other than volunteer labour either for no consideration or for inadequate consideration, as developed from recommendation No. 2 of that report. The recovery of advance payments, as set out in Schedule 1 part 3, was covered in recommendation No. 8 of the report. Third party disclosures were covered in recommendation No. 4. There are several other minor variations to the recommendations, principally to recommendation No. 4.
Though that attracted a lot of the attention of the committee during its deliberations over several years, the resulting measures now contained in the bill are in reasonable concordance with the recommendations of the committee. In Schedule 1, part 7, maintenance contributions follow quite closely on recommendation No. 11 and relate to removing the distinction that was otherwise made between donations for election campaign purposes and donations for maintenance or administrative purposes, the latter previously not being required to be disclosed. It was rather an artificial kind of definition of a distinction and is rightfully removed by this bill, as recommended by the committee. With the decrease of disclosure thresholds for political contributions it is interesting to note that recommendation No.3 was that the minimum threshold for a contribution to a party or group required to be declared should be raised to $10,000 and for a candidate to $1,500. However, in recommendation No.7 the committee went on to say:
The committee believes it would place an excessive administrative burden on the political parties which are overwhelmingly volunteer based and have different disclosure levels for the State and Federal systems.
Consequently, the bill adopts the disclosure levels in the current Federal system. Fund-raising events provided the committee not only with some interesting ideas to consider, but also with a fair bit of light relief during its deliberations. Basically, we had to determine what was a gift arising out of a fund-raising event, and in the event the bill follows recommendation No. 6, which was that this definition really should catch only the large contributions that met the normal threshold requirement. A sum of $1,500 was recommended by the committee - so no longer would people be able to have artificially strange, so-called fund raisers and escape the requirement to disclose.
With annual subscriptions to parties, the bill closely follows recommendation No. 7. Basically, what is required to be disclosed is the calculation of the number of members times the membership fee. If a person is a member of a political party and makes a donation above the membership fee, and the donation is above the threshold, it must be disclosed. Ordinarily, subscriptions to political parties do not need to be disclosed by individuals. Finally, perhaps the major item outlined in the explanatory note to the bill is the creation of the Political Education Fund, which was covered under recommendation No. 14, as follows:
The committee supports the creation of a Political Education Fund based on the cost of one standard postage stamp per elector per year.
That is the regime that is provided in the bill. The committee acknowledged the concern that the political parties were at the heart of the Westminster parliamentary form of government and believed that the effective functioning of the political party system was essential to that form of government. That was the basic reason leading to the creation of the Political Education Fund. I hope I have outlined to the House the concurrence between the recommendations of the committee and the provisions of the bill. I commend the bill to the House.
Page 5622
Mr HATTON (South Coast) [1.54 a.m.]: This is a vital piece of legislation. It comes out of the charter of reform between the Independents and the Government. It was aimed at getting at the rorts that being perpetrated in the election funding process. The "Four Corners" program "He Who Pays the Piper Calls the Tune" clearly disclosed the sorts of rorts that were occurring in elections in regard to the receipt of gifts. The bill provides for advance payments, immediate repayment of those advance payments in certain circumstances, false statements in claims for payment, the requirement to provide sufficient information, penalties for false claims or declarations, the necessity to lodge declarations of political contributions from the day after an election to the following election day. That is a good provision covering what could have been secret payments had that provision not been there. The disclosure period is extended to finish 30 days after polling day, because quite often gifts can be delayed and people can operate on loans on the understanding that the money will come later.
Third party disclosure is particularly important. This includes moneys received from third parties to finance election campaigns and expenditure that may have already been incurred or is about to be incurred. Electoral expenditure of more than $1,500 requires a return to the authority. The electoral expenditure to be disclosed extends to a third party under a new clause in this bill. The declaration is subject to an auditor's certificate. There are penalties for failing to lodge a declaration. Most important, and perhaps the heart of the bill, is the disclosure of gifts and contributions, even if not for the current election, and the removal of the distinction between funds provided for maintenance and funds provided for administration. There was clearly abuse of that, when it was claimed that funds received for an election were not declared because it was claimed they were donated for the maintenance and operation of the political party in an administrative way.
Although I am aware that this comes from the Commonwealth Act, I am concerned that there is no disclosure provision for funds for private use. It is not possible to come to a sensible arrangement to have expenditure limits on elections. I have not seen a way devised to do that, but in the absence of such a requirement and where people receive funds privately and do not disclose them, there is a loophole. I do not know how to get around that. The reporting of the source of donations is particularly important, and the thresholds are important also. I am most interested in whether there is in the legislation a trick that allows political parties to come to some arrangement with the government of the day. If so, it would favour the political parties to the disadvantage, perhaps, of smaller parties and Independents. Those amounts can be increased by regulation.
Obviously, as time passes and as inflation goes on, the threshold amounts will have to be increased. But will this be a backdoor way of increasing those amounts, which at the moment are quite reasonable? If those amounts become significantly larger, it may be in the interests of political parties on both sides of the Parliament to agree to that sort of amendment. The provision that anonymous donations cannot be accepted is most important. To have to source donations is a good requirement of the bill. Also, it is a good requirement to ensure that funds received from fund-raising functions and methods of fund raising have to be disclosed. The net proceeds are defined as gifts. Often in the past a clandestine way of hiding donations to political parties was to run a function at which somebody would make a massive donation. The bill makes provision for annual subscriptions to political parties and to the Political Education Fund, and of course it distinguishes the Political Education Fund from the central fund and constituency funds as established under part 5. I welcome the legislation. I will be most interested to see how it operates in practice and whether we can track down the unseen influence which may undermine the very basis of democracy by being able, simply by the use of the power of money, to achieve in the Parliament through a political party a result that could not be achieved in an open process.
MR HARTCHER (Gosford - Minister for the Environment) [2.0 a.m.], in reply: I thank the honourable member for Wallsend and the honourable member for South Coast for their contributions to this debate. I acknowledge the very worthy assistance that the honourable member for Wallsend gave to me as chairman of the committee, which examined the legislation and prepared this report. Indeed, I acknowledge also support from all the other members of the committee. The establishment of the committee was in accordance with the charter of reform signed by the Government and the three non-aligned Independent members of the Parliament. This legislation, as the honourable member for Wallsend so amply demonstrated, is in conformity with the report of the parliamentary committee. Accordingly, the Government supports the bill and I commend it to the House.
Bill read a second time and passed through remaining stages.
House adjourned at 2.3 a.m., Thursday.