2707 LEGISLATIVE COUNCIL Thursday 6 June 2002 ______ The President (The Hon. Dr Meredith Burgmann) took the chair at 11.00 a.m. The President offered the Prayers. THREATENED SPECIES CONSERVATION AMENDMENT BILL RURAL FIRES AND ENVIRONMENTAL ASSESSMENT LEGISLATION AMENDMENT BILL GREYHOUND RACING BILL HARNESS RACING BILL OLYMPIC CO-ORDINATION AUTHORITY DISSOLUTION BILL SPORTING VENUES MANAGEMENT BILL Bills received. Leave granted for procedural matters to be dealt with on one motion without formality. Motion by the Hon. Michael Egan agreed to: That these bills be read a first time and printed, standing orders be suspended on contingent notice for remaining stages and second readings of the bills be set down as orders of the day for a later hour of the sitting. Bills read a first time. BUSINESS OF THE HOUSE Precedence of Business Motion by the Hon. Michael Egan agreed to: That on Thursday 6 June 2002 Government Business take precedence of General Business. SOUTH COAST CHARCOAL PLANT Return to Order: Claim of Privilege Motion by the Hon. Ian Cohen agreed to: (1) That, in view of the report of the independent legal arbiter, Sir Laurence Street, dated 28 May 2002, on the disputed claim of privilege on papers on the Mogo charcoal plant, this House orders that the documents considered by the Independent Legal Arbiter not to be privileged be laid upon the table by the Clerk. (2) That, on tabling, the documents are authorised to be published. BUSINESS OF THE HOUSE Withdrawal of Business Private Members' Business item No. 7 in the Order of Precedence withdrawn by the Hon. Duncan Gay. 2708 LEGISLATIVE COUNCIL 6 June 2002 CIVIL LIABILITY BILL In Committee The CHAIRMAN: Order! The Committee has received an instruction from the House that it has the power to consider an amendment relating to an insurance industry ombudsman scheme. Clause 1 agreed to. Ms LEE RHIANNON [11.10 a.m.], by leave: I move Greens amendments Nos 1, 5, 13, 14, 15 and 17 in globo: No. 1 Page 2, clause 2, lines 5 and 6. Omit all words on those lines. Insert instead: 2Commencement This Act commences on the date of assent. No. 5 Page 4, clause 9 (2). Insert after line 8: (a) an award that relates to an injury received, or to a death resulting from an injury received, before the commencement of this Act, No. 13 Page 14, schedule 1, clause 1, lines 8-13. Omit all words on those lines. Insert instead: (2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date. (3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as: (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication. No. 14 Page 14, schedule 1, clause 2, lines 15-23. Omit all words on those lines. No. 15 Page 15, schedule 1, clause 4, lines 1-18. Omit all words on those lines. No. 17 Pages 24-26, schedule 2, line 21 on page 24 to line 6 on page 26. Omit all words on those lines. Insert instead: Divisions 5B and 5C of Part 11 do not apply in respect of legal services provided in connection with a claim that arose before the date of assent to the Civil Liability Act 2002. The effect of these amendments would be that all provisions of the bill would apply only to injuries that occur on or after the date of assent to the bill. That is more than reasonable. This House often debates retrospectivity, and the amendments address that issue. The Greens believe that backdating the operation of the bill would only serve to deliver a windfall profit for the insurance industry and would have no impact on the cost of premiums. Further, retrospectively commencing the provisions of the bill would inflict massive injustice on some claimants. To ensure reasonableness and the delivery of justice, the Greens ask members to support the amendments. For example, a small claim commenced in good faith after 20 March might need to be discontinued because of the provisions of the bill, even though the defendant was negligent. The defendant would then be able to seek costs from the claimant. That would be an extraordinary state of affairs. If the amendments are not put in place, a defendant could actually seek costs from a claimant, which would be unfair. The Minister needs to consider the impact of retrospectivity on a certain group of people. There are many other examples of the injustices of retrospectivity. Further, there is a basic principle at risk here that we believe resides at the heart of the rule of law. Each person has a right to know what law applies to his or her actions. To change laws retrospectively in this fashion is to deny people that right. All members of this place have a deep commitment to upholding rights in law. We have different interpretations of that, but some fundamentals should not be denied, and that is what will happen if the amendments are not adopted. The Greens amendments will ensure that the bill will not affect people before it passes into law. I again put to members that the amendments are entirely reasonable and provide a fair proposal. 6 June 2002 LEGISLATIVE COUNCIL 2709 The Hon. Dr ARTHUR CHESTERFIELD-EVANS [11.13 a.m.]: The Australian Democrats have always supported the concept that, except with money bills, we should not have retrospectivity. This is simply an enactment of that principle. The law should be the law at a point of time, and if it suddenly changes with the unexpected issue of a press release, people who have worked and made their arrangements under that system should be given time to adopt the new system. Premiums were set with that in mind. The precedent of overriding the principle of non-retrospectivity is a dangerous path to follow and we certainly would not support it. The Democrats therefore support the amendments. The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [11.13 a.m.]: The Government does not support the Greens amendments. There are a number of reasons for the Government's reluctance to accept the amendments, and I think most members would be familiar with the general thrust of the debate. The Premier's ministerial statement in relation to this matter, as recorded in Hansard, makes very clear points about the likelihood, indeed the certainty, that the Government's decisions in relation to this matter will be effective as at 20 March. Before I deal with the clarity with which the Premier made his announcements, I think I should address some of the matters raised by Ms Lee Rhiannon and the Hon. Dr Arthur Chesterfield-Evans. Retrospectivity is essential to stop a rush of claims by people trying to avoid the implications of the new laws. We witnessed such a rush of claims last year when the Government announced its health care liability reforms. These extra claims amounted to an additional $140 million for the State Government alone. That was equivalent to three years worth of claims in a couple of months. Had a rush of claims occurred in response to this bill, it might have had a further adverse impact on premiums. I think most people are aware of the anecdotes. Indeed, during the second reading debate members on both sides of the Chamber and crossbench members extensively canvassed the anecdotes in relation to the already onerous nature of those premiums and the effect they are having on a range of activities, including country fares, school fetes, and a whole range of important community events. I do not think I need to further canvass the matters raised, as most honourable members are aware of them, either anecdotally or as a matter of record, as a result of representations they have received from their constituencies. I wish to make the point that there is a much higher risk of increases in premiums in areas that have already been adversely affected by extreme increases in premiums over the last 12 months. Further increases could result from a sudden burst of claims based simply on speculation about the timing of the operation of these laws. Retrospectivity is also necessary so that the bill can have a positive impact on premiums as quickly as possible. If we allowed an injured person to continue to make claims under the current law, it would be literally years before the costs would be reduced. The community has already indicated a sense of urgency about this and is expecting the Parliament to respond with a sense of urgency. Notwithstanding the justified concerns we have heard about the way in which the community will cope with a whole range of issues in relation to the law of negligence and the treatment of catastrophically injured persons, and a whole range of issues that are part and parcel of this debate, the community has made it clear that it wants the Parliament to respond to the challenge of addressing insurance premiums, so that the cancellation of important and sometimes income- and job-generating community events will not occur in the future.