5437 LEGISLATIVE ASSEMBLY Thursday 20 November 2003 ______ Mr Speaker (The Hon. John Joseph Aquilina) took the chair at 10.00 a.m. Mr Speaker offered the Prayer. QUARANTINE STATION PRESERVATION TRUST BILL Bill received and read a first time. Second reading ordered to stand as an order of the day. Mr SPEAKER: I have been advised that the honourable member for The Hills will have the carriage of the bill in this House. ROADS AMENDMENT (TRANSFER OF CROWN ROADS) BILL Bill introduced and read a first time. Second Reading Mr GEORGE SOURIS (Upper Hunter) [10.04 a.m.]: I move: That this bill be now read a second time. It is a great pleasure to introduce this bill, which has a history. First, it is identical to a bill I proposed in 1995. That bill arose as a result of the inability of local government to find meaningful insurance for Crown roads. The Government of the day—the current Government—opposed that bill, but made a commitment to undertake significant consultation with the industry and to set up a task force and a process. Unfortunately, nothing transpired. Crown roads can still be forced onto local government, creating an unfunded mandate whereby the ratepayers can be responsible for their upgrade and/or maintenance. The issue arose from two cases. The first related to Cassels Road in the shire of Singleton, which the Department of Lands forced onto the Singleton Shire Council without consultation and without any form of compensation to cover the capital requirements of the road and its ongoing maintenance. The second case involved Tallawarra Road in the Illawarra. Wollongong Council was forced to accept dedication of that road. I raised the question of Cassels Road in a question on notice and I was pleased to receive a response from the Minister representing the Minister for Local Government stating that the order for dedication was rescinded and that deliberations had been initiated again, as they had been in 1995, to develop a better and more consultative process. That was a satisfactory outcome as far as the Singleton Shire Council was concerned. However, no such commitment has occurred in respect of Tallawarra Road and the dedication has been maintained. Arising from the consultation process in the drafting of this bill, a number of other councils indicated that at one stage or another they have faced or are facing forced dedication of a Crown road. The councils dealing with forced transfer of Crown roads are Bombala Council, Manilla Shire Council, Dubbo City Council, Wyong Shire Council, Murrurundi Shire Council, Wollongong City Council, Cobar Shire Council, Newcastle City Council, Scone Shire Council, Narrandera Shire Council and Copmanhurst Shire Council. The genesis of this bill is the fact that transfers of Crown roads to other government instrumentalities, in particular Crown roads transferred from the Department of Lands to the Roads and Traffic Authority, are undertaken after consultation and concurrence. Local government is very much the poor cousin as far as the Roads Act is concerned. Local government is simply asking for that same level of consultation and concurrence. In many cases these roads are unproven tracks that require improvement to all-weather passages and ongoing maintenance. That is a significant burden to impose by dedication. The constant transfer of unfunded mandates is part of the overall problem local government faces in its dealings with the State Government. In this case it is the dedication of Crown roads to local government and the subsequent costs. 5438 LEGISLATIVE ASSEMBLY 20 November 2003 This bill confers on local government the same powers as are ascribed to agencies such as the Roads and Traffic Authority; that is, the right to consultation, negotiation and concurrence. That is only reasonable. If that does not occur, these dedications represent a significant cost-shifting exercise from the State Government to the lower tier of government. That is unfair on ratepayers and unfair on people who are part of that local community, whether they are residents or land-holders. One way or another they will suffer, either because the council is committed to this expenditure and therefore cannot fund other worthwhile community activities such as libraries and other things, or because as property owners the burden through the rating structure will impact heavily on them. This is a plea on behalf of local government to the State Government for more consultation, to take the third tier of government more genuinely and to enter into meaningful and appropriate partnerships in sharing the responsibility of governments in this State. It is entirely appropriate to provide for consultation and concurrence by local government. The Government should consider this bill. I have one large folder of letters I received from local government in 1995 when this bill was presented, and I have another large folder of letters I received from local government in 2003 when I undertook consultation. I can assure honourable members that virtually all councils in their constituencies have a protest about the Government's pernicious approach to the forced transfer of Crown roads onto local government. The Government should take particular note of the importance of this issue to local government. The correspondence I have received demonstrates that it is an active and live issue for each and every one of their communities, just as it is for members of the Coalition. This issue will not go away and the Coalition will not let it rest. I commend the bill to the House. Debate adjourned on motion by Mr Neville Newell. CIVIL LIABILITY AMENDMENT (MENTAL ILLNESS) BILL Bill introduced and read a first time. Second Reading Mr ANDREW TINK (Epping) [10.11 a.m.]: I move: That this bill be now read a second time. This bill is different to the Civil Liability Amendment Bill that was considered by this House last night because this bill covers the Presland matter. I moved an amendment last night in Committee, which was defeated along party lines, and I now bring this bill forward to specifically deal with Presland and the class of people like Presland. This is necessary because the way the Government has proceeded provides no guarantee that we have done all we can do to ensure that Presland does not get damages. Honourable members may recall that following his killing of a woman by slitting her throat, Presland was awarded $300,000 damages. The Government is appealing that decision but there is no guarantee that the appeal will be upheld. I believe that the Government can, and should, be doing more to ensure that Presland does not get the money. Last night the Minister for Health, on behalf of the Attorney General, made it clear that the Government's legislation covers Trimarchi and Rea, who have filed proceedings but whose proceedings have not at this stage proceeded to a judgment. In that respect Presland is different but the Government has embraced the concept of retrospectivity in this particular public policy area. In this bill I seek to extend the concept of retrospectivity back to and including Presland. I want to read onto the record advice given to me by Parliamentary Counsel specifically in relation to this bill so that, heaven forbid, if this matter does go pear shaped in the courts, there is a record of what the Opposition tried to do, based on what I believe is proper advice. On 14 October Parliamentary Counsel provided advice in relation to this bill and stated: I refer to your request for advice about the operation of the Bill in connection with pending proceedings. The bill makes it clear that the prohibition on the recovery of damages by a person who suffers loss or injury in connection with the person's commission of a serous criminal offence (section 54) extends to a person who is found not guilty of committing such an offence because of mental illness or who is unfit to be tried because of mental illness. The bill is expressed to commence retrospectively on the date that notice of motion for the bill was given (i.e. 3 September 2003). The transitional provisions in schedule 1[2] declare that the bill applies to proceedings pending on that date (including proceedings on appeal on that date). The provision is intended to ensure that the bill applies to deny the recovery of damages by Presland (even if the current appeal against the award of damages to Presland would otherwise have been unsuccessful). The bill will also deny the recovery of damages by other similar plaintiffs whose cases have not yet been initially determined. 20 November 2003 LEGISLATIVE ASSEMBLY 5439 They are covered now by the Government's bill, but Presland is not. The advice continues: The Presland decision is not reversed directly and specifically by the bill (because that would be likely to raise constitutional issues related to the Kable case) but by changing retrospectively the underlying law applicable to the case (and thereby requiring the Appeal Court to reverse the initial decision in favour of Presland). It is unlikely that the transitional provisions would be construed as applying to the Presland case if the appeal is determined before the bill is passed (unless there is the possibility of a further appeal being lodged to challenge the decision). Although the Civil Liability Act was in 2002 applied to proceedings instituted after the Premier's announcement of the proposed reforms and before the commencement of the Act, it did not apply to the Presland case because I understand the proceedings had been instituted before the Premier's announcement. Accordingly, in order to apply section 54 of the Act to the Presland case, it is necessary for the transitional provision in the bill to apply that section even though the proceedings were instituted before the Premier's announcement and the Act generally would not otherwise apply.