Tuesday, 18 November 1997
The President (The Hon. Max Frederick Willis) took the chair at 2.30 p.m.
The President offered the Prayers.
ASSENT TO BILL
Assent to the following bill reported:
Justices Amendment (Briefs of Evidence) Bill
WATER LEGISLATION AMENDMENT BILL
SOUTH-WEST TABLELANDS WATER SUPPLY ADMINISTRATION (REPEAL) BILL
CROWN LANDS AND IRRIGATION LEGISLATION AMENDMENT
Bills received and, by leave, read a first time.
Suspension of standing orders agreed to.
(REMOVAL OF TRANSFER RESTRICTIONS) BILL
SNOWY HYDRO CORPORATISATION BILL
Message received from the Legislative Assembly agreeing to the Legislative Council’s amendments.
COMMITTEE ON THE OFFICE OF THE OMBUDSMAN AND THE POLICE INTEGRITY COMMISSION
The Clerk announced, pursuant to section 31FA of the Ombudsman Act 1974, receipt of a report entitled "Review of Schedule 1 of the Ombudsman Act 1974", dated November 1997.
Sexual Offence Damages Bill
Petition praying that the Parliament support the Sexual Offence Damages Bill, received from the Hon. Elaine Nile.
CRIMES AMENDMENT (DIMINISHED RESPONSIBILITY) BILL
Debate resumed from 12 November.
The Hon. R. S. L. JONES [2.41 p.m.]: I oppose the bill. The existing test for determining diminished responsibility is sufficiently strict and does not need amendment. The fundamental legal principle that culpability for a crime must be judged in relation to a person’s responsibility for that crime is often undermined by the simplistic fallacy at the heart of our criminal law that holds that people are fully responsible or wholly not responsible for their acts. The standard measurement of responsibility is gauged by mens rea. If a person possesses mens rea, that person is deemed as sane, responsible and therefore guilty. If a person’s capacities are so impaired as to obviate the existence of mens rea, the person is exonerated from any responsibility and is therefore not guilty.
In short, the law assumes that the bad and the mad are mutually exclusive categories, and that the bad should be punished and the mad should be treated. The defence of diminished responsibility has a vital role because it acts as the middle ground between responsibility and non-responsibility, between the bad and the mad. It gives the law flexibility so that it can hand down an appropriate penalty when a person is responsible for his or her actions but not as responsible as he or she might otherwise have been. This is particularly relevant in cases in which people have medical conditions such as schizophrenia, severe depression, intellectual disabilities, antisocial personality disorders or premenstrual tension. In fact, a study conducted by the Judicial Commission of New South Wales found that of the 22 people who successfully used the defence of diminished responsibility, nine had severe depression, six had a form of schizophrenia, three had brain damage, two had personality disorders and two had post-traumatic stress syndrome.
One particularly illustrative case is that of Graham Cassel. In that case the defence of diminished responsibility was accepted by the
Crown on account of Mr Cassel’s severe depression. This generated a great deal of criticism, much of it implying that diminished responsibility is a loophole that allowed Mr Cassel to go unpunished on the basis of a fabricated claim of mental impairment. Several reports wrongly implied that Mr Cassel had escaped full criminal liability because he was intoxicated at the time of the killing. In defence of the judgment in the Cassel case, it must be pointed out that Graham Cassel never denied partial responsibility for the killing and has been punished accordingly. The defence of diminished responsibility was accepted only after reports from three psychiatrists and one psychologist claimed that Cassel was suicidal and suffering from a major depressive illness at the time of the killing. It is a valid defence and demonstrates the need for legal halfway houses between responsibility and non-responsibility.
In its study of diminished responsibility, the New South Wales Law Reform Commission found that the defence should be retained. It concurred with a number of submissions made to it from prominent legal groups, including the Law Society of New South Wales, the Legal Aid Commission, the Women’s Legal Resources Centre and the Royal Australian and New Zealand College of Psychiatrists. Though I am also pleased that the Government has not completely abandoned the idea of partial responsibility and has chosen to retain a defence of substantial impairment by abnormality of the mind, I am concerned that the new defence raises a number of serious issues. The Government never clearly explained why it was repealing diminished responsibility, only that - and I quote from the Minister’s second reading speech, which stated:
. . . there have been expressions of concern about the breadth of the defence. Some of those concerns were raised following the conviction of Graham Cassel in March 1997 for the manslaughter of Michael McPake at La Perouse in April 1995.
The New South Wales Law Reform Commission report itself found:
. . . the negative reaction to the tragic killing of Michael McPake by Mr Cassel appears to be based largely on misinformation from highly inaccurate media reports as to the extent of Mr Cassel’s mental disturbance.
I hope that the Government’s sole justification for repealing the defence of diminished responsibility is not ill informed and as a result of misleading media reports. Certainly, there is no evidence that the defence is being abused. A study by the Judicial Commission of New South Wales - also quoted by the Minister - found that over a three-year period 36 people accused of murder raised the defence of diminished responsibility. This represents just 14 per cent of the total number of people charged with murder. Of the 36, 11 had pleas of manslaughter accepted by the prosecution, 11 went to trial for murder and were convicted of manslaughter, and the remaining 14 were convicted of murder. In other words, each year an average of seven people, or 8 per cent of people charged with murder, successfully use the defence. This is evidence that the defence of diminished responsibility is being used reasonably and, if anything, it may be underutilised.
While debating the Mental Health Act honourable members were particularly fond of claiming that one in five people suffer some form of mental illness. Needless to say, there would be a substantial increase in the use of diminished responsibility if one in five people charged with murder could use the defence on the basis of a legitimate, pre-existing mental condition. Additionally, a number of studies that show that rates of intellectual disability in prisons are high - up to 13 per cent of the population - seem to indicate that the proportion of people charged with murder with pre-existing conditions that could cause substantial impairment, of which intellectual disability is only one, is greater than the proportion of people charged with murder who use the diminished responsibility defence.
These statistics give no indication that defendants are fabricating a mental illness in order to use the defence of diminished responsibility or that juries would be fooled by any fabrication. A murder conviction rate of 40 per cent amongst those who use the defence of diminished responsibility indicates that juries treat evidence of mental illness with due scepticism and are prepared to disregard the evidence of expert witnesses. In fact, the study found that in the majority - 58 per cent - of cases heard before a jury, the jury did not accept the defence of diminished responsibility. Certainly, there is a risk that evidence of mental illness can be faked, but this risk is common in evidence of any kind and is rigorously tested within the trial process. With increasingly sophisticated methods of detecting mental disorders, the likelihood of one successfully fabricating a mental illness is increasingly remote.
I believe also that the proposed test of substantial impairment by abnormality of mind is likely to cause complete confusion among juries. The crux of the proposed test is that a jury must decide whether a defendant has been impaired and whether this impairment is substantial enough to warrant liability for murder being reduced to manslaughter. The problem is that when deciding
this difficult question the jury is not given any guidance on what grounds this decision could be made. The New South Wales Law Reform Commission discussion paper No. 31 contains the following comment:
This essentially leaves the jury to mark out for itself the boundary between murder and manslaughter with very little guidance as to how to do this.
Similarly, Edward Griew, writing about the future of diminished responsibility in the Criminal Law Journal, wonders how juries will differentiate between murder and manslaughter without the advice of experts. He stated:
What do the jury know of this distinction? At present they are asked a question phrased in terms of "mental responsibility". In future they would be asked whether the mental disorder was "a substantial enough reason to reduce murder to manslaughter". If they enquire how manslaughter is to be recognised, they must be told that it is their verdict which will identify it. My guess is that judges, having to operate the law in the revised form, would quickly become embarrassed by the difficulty in it that has up to now been kept partially concealed by the working of the section.
The bill makes the task of the jury even more difficult by limiting the role of expert witnesses. The effect of the new test will be that expert witnesses will be able to give evidence about whether there is impairment in a defendant, but will not be able to give evidence about whether the impairment is substantial enough to warrant liability for murder being reduced to manslaughter. In other words, the expert witnesses will only be able to identify the absence or presence of a condition whereas the jury’s decision will be made according to the degree of the mental abnormality and the extent to which it affects the defendant’s responsibility for a crime. The Minister has indicated that all the jury will need to make this monumental decision is "the community’s collective wisdom and its sense of justice". I strongly disagree, as would the American Bar Association, which has argued:
Expert opinion testimony as to how the development adaption and functioning of the defendant’s mental processes may have influenced his conduct at the time of the offence should be admissible.
The bill will prevent juries from hearing that sort of evidence. In short, it will force juries to make decisions that they are not qualified to make without hearing evidence from expert witnesses. The reason commonly given for the reduction of the role of expert witnesses is that they can give conflicting evidence and are therefore more likely to confuse rather than instruct the jury. In the case R v. Chayna, for example, seven psychiatrists gave conflicting evidence. However, it should be pointed out that these instances are relatively rare and diminishing as mental health becomes better understood and diagnoses are made with more certainty. A study conducted in the United Kingdom found that expert witnesses disagreed in only 13 per cent of cases and, in any case, it is unlikely that juries would be able to resolve issues on which psychologists could not agree. In conclusion, I believe that the existing plea of diminished responsibility plays a vital role as a halfway house between responsibility and non-responsibility. There is no evidence that the defence is being abused, and safeguards are in place in our legal system to protect against any abuse. I can see no reason for repealing the defence of diminished responsibility. I urge honourable members to oppose the bill.
The Hon. ELISABETH KIRKBY [2.51 p.m.]: The Crimes Amendment (Diminished Responsibility) Bill will amend section 23A of the Crimes Act 1900 to remove the partial defence of diminished responsibility and to substitute the new defence of substantial impairment by abnormality of mind. Diminished responsibility reduces a charge of murder to manslaughter. In Scotland diminished responsibility has been referred to as partial insanity, which helps us understand what it is but it also serves to highlight how difficult it is to define. At present the defence is available in three Australian jurisdictions - Queensland, the Australian Capital Territory and the Northern Territory. The fact that it is available only in those three jurisdictions does not fill me with a great deal of confidence.
A Law Reform Commission report published in May recommended the changes proposed by the Government. I have read the report and, given the concerns detailed in the body of the report, I find it strange that the Government has recommended the changes. I realise that there has been a growing concern, mainly from the prosecution, that the defence of diminished responsibility was being used too broadly. The bill purports to encourage a stricter test and better defines the existing case law. The Law Reform Commission criticised three elements of the present defence. First, it criticised the requirement of proof of abnormality of mind and said that the term is meaningless. A number of conditions may be included that ought not be, such as personality disorders, dissociation, and jealousy and resentment following marriage breakdown. It is also suggested that altered states of consciousness, self-induced by drugs or alcohol, should not be included.
Second, the Law Reform Commission criticised the requirement of proof of origin of the abnormality. The legislation lists three causes:
arrested or retarded development of the mind, an inherent cause, or inducement by disease or injury. I would have a great deal of difficulty, as would most people, establishing the origin of the abnormality. This provision will add an unnecessary complexity to the defence if it becomes law. As the Hon. R. S. L. Jones pointed out, in the case of R v. Chayna seven different expert medical witnesses gave seven different expert medical opinions - and I am certain that that could happen on other occasions. Proof of origin of the abnormality has been used to exclude abnormalities of an ephemeral or transitory nature - that is, abnormalities induced by alcohol or drugs. Third, the commission criticised the requirement of proof of substantial impairment of mental responsibility. The impairment has to be substantial - more than trivial or minimal - and there has to be a link between the impairment and the crime committed. Substantially impaired is a matter of degree and it becomes a question on which members of the jury apply their moral and community standards.
The bill will replace the defence of diminished responsibility with the new defence of substantial impairment by abnormality of the mind. It is still a partial defence for reducing the liability of the accused for murder to manslaughter, and it must still be proved beyond reasonable doubt by the accused. I shall outline the differences between the old and the new legislation. First, the concept of mental responsibility is removed. The new defence will turn on the accused’s capacity to understand events, to judge actions as right or wrong, or to control himself. Second, the impairment has to be so substantial as to warrant liability for murder being reduced to manslaughter. Third, the current defence of abnormality of mind arises from a condition of arrested or retarded development of mind, any inherent causes, or causes induced by disease or injury. The new defence requires the accused to prove that the abnormality of mind arises from an underlying condition. "Underlying condition" is defined in proposed section 23A(8), which is set out in schedule 1.
The new defence will make it clear also that the effects of self-induced intoxication - defined by section 428A of the Crimes Act as "alcohol and all other non-prescription drugs" - preclude the use of this defence. That in itself is curious, and I would like the Attorney General to comment on it in his reply to the second reading debate. Section 428A of the Crimes Act defines all other non-prescription drugs. However, it is possible that people who are taking prescription drugs will commit a crime. Prescription drugs may alter a person’s attitude so that they do things - such as commit serious crimes, including murder - that they would not have done if they had not taken the drug. It is strange that we talk only about alcohol and other non-prescription drugs; dangers have been proved with many prescription drugs.
The bill makes it clear that the accused will have to give notice of intention to raise the new defence. I have discussed the legislation with a number of people and it appears that practically everyone is in favour of change and certainty. However, there are differing views as to how this can be achieved. A number of people are in favour of retaining the defence of diminished responsibility. It would appear that the Government has accepted the recommendations of the Law Reform Commission report almost in their entirety. The Royal Australian and New Zealand College of Psychiatrists supports the retention of the defence, but it wants a special new review tribunal to determine the release of offenders.
At present, when people are found guilty on the ground of diminished responsibility they go through the system of gaol, parole and release. The royal college of psychiatrists is concerned that it is these offenders who may still be a danger to the community and who are likely to reoffend. When people use the mental illness defence they have to be assessed by the Mental Health Tribunal as to whether they are fit or not fit for release. The Director of Public Prosecutions apparently favours scrapping the defence altogether and allowing a conviction for murder to be recorded. The office of the DPP believes that the argument as to the accused’s state of mind should then be put at a sentencing hearing, at which the judge would have a very wide discretion on sentencing, from life imprisonment to a bond.
The problem is that a jury may be more reluctant to convict someone who is suffering from a mental dysfunction of murder rather than manslaughter, even though the sentence might be the same. Manslaughter carries a maximum sentence of 25 years. It appears to me that the bill is really an exercise in clarifying the application of present case law and putting it into a statute. In part it seeks to clearly define the partial defence of diminished responsibility, and simply to rename it "substantial impairment by abnormality of mind". The legislation removes the unnecessary proof of the origin of the abnormality and clearly establishes that being drunk or under the influence of non-prescription drugs will preclude an accused from using this defence.
The Government has taken the recommendations of the Law Reform Commission
without analysing them in depth. It has adopted the view that the legislation will clarify the whole area, but I believe that is extremely unlikely because medical experts will never be able to agree on matters of the mind. From the brief conversation I had with the Leader of the Opposition, I believe the Opposition will accept the legislation because it clearly establishes that being drunk precludes the accused from using the defence of diminished responsibility. But the Opposition should consider it in more depth, because this area needs far more consideration. Those who suffer from either a temporary or permanent mental illness deserve to have such a law clarified so that they can be treated fairly by the criminal justice system.
I ask the Attorney General: why the haste to introduce the bill? The Government is currently considering another report by the Law Reform Commission on the treatment by the criminal justice system of people with mental impairment. It would have made far better sense to consider the issues raised in the forthcoming report in concert with the report published in May, and for amendments to the Act to relate to the partial defence of diminished responsibility. So far as I can tell, the Opposition has concerns about the defence, but apparently it is not proposing either to defer or oppose the bill. The Opposition foreshadowed scrapping the defence in the future. If the Opposition has concerns they should be put on the record now rather than at some future time.
A very big problem is that the Mental Health Review Tribunal is already in place under sections 38 and 39 of the Mental Health (Criminal Procedure) Act 1990 to oversee the release of offenders who are not guilty by reason of insanity. However, there is no such review of people successfully using the diminished responsibility defence. They are lumped together with the general prison population. It has been difficult to decide what to do about this legislation. I can see that there is a certain simplicity to dropping the defence altogether and allowing the judge to pass sentence on the application of the defence as to the accused’s state of mind. But I still believe that juries may be reluctant to convict of murder, so that an accused, rather than being convicted of manslaughter with the diminished responsibility partial defence, would be adjudged not guilty. Alternatively, the suggestion that a tribunal be established to review and assess whether an accused who successfully used the diminished responsibility defence is ready to rejoin society has merit.
This could be done by the present Mental Health Review Tribunal. There is no need to establish a new tribunal, as suggested by the psychiatrists. Somebody who uses the insanity defence and is incarcerated under the Mental Health (Criminal Procedure) Act can be locked up for longer than someone sentenced through the normal criminal justice system pending the tribunal pronouncing them sane, or at least fit to be released. That is like the old provision for sentencing at the Governor’s pleasure, and is not far removed from it at all. I had hoped it would be possible to defer this legislation pending the Government’s response to the other report of the Law Reform Commission, which would enable a full discussion of all the options when the facts are before this Chamber. The Opposition is certainly not prepared to accept that, judging by what the Leader of the Opposition just told me. Obviously, the Government is not prepared to defer the legislation. Regrettably, I cannot support the legislation in its present form.
The Hon. J. S. TINGLE [3.08 p.m.]: I support the bill. It is probably an inevitable change to our laws that cover the way people can plead, the way they are charged and the way that charges can be dealt with in the court. Replacing the defence of diminished responsibility with a defence of impairment, as specifically spelled out in the bill, brings back into focus the real reason why a murder charge should be reduced to a manslaughter charge. By including a condition of self-induced impairment - that is, alcoholic intoxication - the bill gets back to the fact that in the long run we all are responsible for our actions and have to be prepared to take responsibility for what we do, whether we are, at the time, in a condition to understand the gravity of our actions or whether we are so drunk that we do not know what we are doing.
I am disappointed that the bill does not allow other than intoxication with alcohol, so far as I can read it, to be taken into account. A person who has knowingly or wittingly administered non-prescription drugs - drugs of abuse - or, better still, somebody who fails, knowingly, willingly and willfully, to administer prescription drugs designed to modify behaviour so that the person does not become violent or unpredictable, knowing that such lack of drug administration could lead to a change in behaviour, that is, the person’s behaviour could become violent or unpredictable, is in the same category as a person who knowingly becomes intoxicated and who then commits an offence.
It might be possible for the Attorney General, when he is finally framing this bill, to include in it a person who willfully fails to take a prescribed behaviour-modifying preparation and who then goes out and commits a crime. I do not think that such a
person should be able to turn to the court and say, "I did not mean to commit a murder, but I had forgotten to take my calming drug, I did not quite know what I was doing. I should not be charged with murder, I should be charged with manslaughter." That person should take as much responsibility for his or her actions as someone who got drunk and killed another person.
The Hon. Dr MEREDITH BURGMANN [3.11 p.m.]: Although I am keen to support the proper defence of people appearing in court and am loath to limit it, I have grave concerns about the defence of diminished responsibility. In the past this defence often has been raised by males facing charges of killing or severely assaulting other males, but has been mostly used by males charged with killing women, their wives or their girlfriends. This defence has disproportionately been used by male defendants who have beaten up their wives or girlfriends. It saddens me that alcohol produces this effect in some men, but they should not be able to use drunkenness as a defence for their actions. The recent case in the Australian Capital Territory in which footballer Noa Nadruku used the defence of diminished responsibility on the ground of drunkenness to be acquitted of the assault which he committed on three women really highlighted the problems raised by such a defence. I am happy to support the legislation.
Reverend the Hon. F. J. NILE [3.12 p.m.]: I place on record the support of the Christian Democratic Party for the Crimes Amendment (Diminished Responsibility) Bill, which will replace the defence of diminished responsibility to a charge of murder. The principal differences between the current defence of diminished responsibility and the new defence are as follows:
(a) The concept of "mental responsibility" is removed. The new defence requires the accused to show his or her capacity to understand events, to judge whether his or her actions were right or wrong or to control himself or herself, was substantially impaired by an abnormality of mind.
(b) The new defence is satisfied only if the impairment suffered by the defendant was so substantial as to warrant liability for murder being reduced to manslaughter . . .
(d) The new defence makes it clear that the effects of any self-induced intoxication on the accused at the time of the acts or omissions causing death are to be disregarded by the jury.
I will not take up the time of the House detailing the many cases that have been brought to my attention. I agree with the community view that, on occasions, a court has been overly influenced by the fact that a person has been intoxicated, or by other factors raised under the defence of diminished responsibility, to reduce the penalty. Recently in Melbourne a judge freed a man who bashed his father to death with a hammer. The man was allegedly suffering from a mental illness, possibly induced by marijuana. The man pleaded guilty to the manslaughter of his father and the Supreme Court judge said that the man had experienced either toxic psychosis from his long-term cannabis use, possibly combined with antidepressants, or reactive psychosis caused by work-related stress. We all know that long-term cannabis use causes serious mental effects.
Three psychiatrists believed that the man was clinically insane when he killed his father, but that he had made a complete recovery. He had been deluded in his belief that his wife was having an affair with his father. He was released on a five-year good behaviour bond on the condition that he abstain from marijuana. I agree with the decision concerning marijuana, but I do not believe he should have received a five-year good behaviour bond for bashing his father to death with a hammer. That raises questions about the effects on persons of such drug use - a matter referred to also by the Hon. J. S. Tingle. People who are on medication and who deliberately stop taking that medication and commit an offence should not receive a reduced penalty. The Christian Democratic Party supports the objectives of this legislation and trusts that it will ensure greater justice in our court system.
The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [3.15], in reply: I thank all honourable members for their contributions to the debate. The most thoughtful and researched contributions were made by the Hon. Elisabeth Kirkby and the Hon. R. S. L. Jones, two members who actually supported the status quo and who had difficulties with the bill. Nevertheless, I believe that this legislation is a good example of criminal law reform and a model of process. I would not accept the accusation of haste in relation to the bill. This matter was referred to the New South Wales Law Reform Commission by the former Government in 1993 and we have had a discussion paper out for a long time. The Law Reform Commission released its final report in May 1997 after extensive consultations with criminal lawyers, psychiatrists and the like. So there has been a thorough process of reconsideration of the defence of diminished responsibility. I believe that we have a bill that achieves the appropriate balance - a bill that meets many of the long-standing criticisms made by psychiatrists and lawyers of the wording and effect of the previous law.
I deal first with a number of misapprehensions that I believe the Hon. M. J. Gallacher has about the bill, although he and the Opposition are supporting it. The honourable member referred to the use of the defence of diminished responsibility in a drink-driving case, in which a person claimed that he was too drunk to know what he was doing. My first observation is that the defence of diminished responsibility can be raised only when a person has been charged with murder, and it can only reduce the offence to manslaughter; it does not result in acquittal. If there is a conviction for manslaughter, the maximum penalty is 25 years imprisonment. Second, the bill, in conjunction with amendments to the Crimes Act introduced by this Government in 1996, has reduced to the point of elimination the defence of intoxication which had previously been available in this State. The new partial defence of substantial impairment by abnormality of mind is one which I think has reasonably broad support.
I have the greatest respect for the criminal defence bar, but it tends to oppose any changes in the criminal law, and a responsible government has to listen to community criticisms and community difficulties with the criminal law and revise that criminal law in the light of those difficulties. The introduction of a statutory definition of "underlying condition" to mean a pre-existing mental or physiological condition other than a condition of a transitory kind meets the point that something that is merely transitory or merely a passing phenomenon would not qualify for the defence. It is a good proposition that the jury should decide whether the impairment was so substantial as to warrant reducing murder to manslaughter. That is essentially a value judgment which should reflect the commonsense of ordinary members of the community as reflected by the members of the jury. A relatively new departure in the criminal law in this bill is that the accused is required to give notice of an intention to raise the defence, such notice to include details of the evidence in advance so that the prosecution might assess that evidence and obtain alternative evidence. There is precedent in the law relating to alibis for the giving of prior notice of a defence, but this proposal is innovatory in that it requires details of evidence to be provided in advance by the defence to the prosecution.
In relation to the matter raised by the Hon. J. S. Tingle about prescription drugs, I am advised that a person who takes drugs according to prescription does not come within the self-induced intoxication definition under section 428A and, therefore, a defence in that regard must be established by expert evidence. However, I reiterate my private undertaking to the honourable member that his point will be the subject of consideration by the criminal law review division of the Attorney General’s Department. With those observations, I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.
LUNA PARK SITE AMENDMENT BILL
The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [3.21 p.m.]: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
The object of the bill before the House is to provide the people of Sydney and its visitors with an opportunity to once again enjoy the spectacular Luna Park Site. The bill will achieve this by amending the Luna Park Site Act 1990 to allow the site to be used for a wider range of purposes. It will allow the Trust to call for expressions of interest to test the level of private sector interest in operating the site as an amusement park supported by a wider range of uses such as restaurants, cafes, private functions, exhibitions, conventions, markets, theatres and meetings, in addition to its traditional use as an amusement park.
The bill enables the Trust to ascertain whether it can find an operator that is willing to expend the funds in redeveloping and operating the park as an economically viable venture.
The bill seeks to amend the requirement in the Luna Park Site Act 1990 that the Luna Park Site be accessible by the public at all times so that this requirement applies only to the boardwalk and foreshore area. The bill also authorises the Luna Park Reserve Trust to make use of three distinct areas of land within the Luna Park Site located on the cliff top fronting Glen and Northcliff Streets, Milsons Point for commercial activities to help offset the Trust’s costs in relation to the remainder of the site.
Luna Park has had a chequered history, particularly in recent times. Luna Park first opened as an amusement park in 1935. The tragic ghost train fire in 1979 resulted in the closure of the site as an amusement park. The site re-opened in 1981 as an amusement park under a lease to a private operator from the Crown, but closed in April 1988 with the then lessee claiming that it was unprofitable to operate.
The lessee refused requests by the Government of the day to recommence operations.
As a result the Luna Park Site Act 1990 was introduced and enacted. The Luna Park Site Act brought the existing lease to
an end and vested the Luna Park Site in the Crown as Crown land and deemed the land to be dedicated under the Crown Lands Act 1989 for the purposes of public recreation, public amusement and public entertainment.
The Luna Park Reserve Trust was established to have care, control and management of the land comprising the Luna Park Site. In accordance with the requirements of the Act, a Plan of Management was prepared for the site and adopted by the then Minister in November 1991. As required by section 8 of the Act, the Plan of Management includes the requirement that public access to the site must be available at all times.
Rather than leasing the site for the redevelopment, the Trust undertook the redevelopment of the site itself, and then brought in an operator to oversee the site’s operation.
The Government of the day made grants and loans of public money to the Trust. It also guaranteed commercial loans entered into by the Trust.
The site re-opened as an amusement park in January 1995 under the management of Luna Park Amusements Pty Ltd which was a company jointly owned by the Trust and a commercial amusement park operator. Noise problems were immediately encountered with the use of the Big Dipper erected on the site by the Trust. A group of local residents took action in the Supreme Court which resulted in the Court making an order severely restricting the hours of operation of the Big Dipper.
As a consequence, the Park declined in popularity and incurred further debt.
In light of the trading position of the Trust and its indebtedness my colleague the Hon. Kim Yeadon, Minister for Land and Conservation, removed the Luna Park Reserve Trust Board on 12 May 1995 and appointed Mr James Millar of Ernst & Young, a person with considerable experience in debt management and in commerce, as administrator of the Trust. As part of the restructure of the Park’s finances the arrangement with the private operator had to be dissolved.
In December 1995 the Administrator called for expressions of interest from the private sector to operate the site as an amusement park. The Administrator reported that only one viable submission had been received. The submission proposed that in addition to its use as an amusement park, the site also be used for private functions, events, promotions, markets and conventions.
The Plan of Management adopted by the then Government in 1991 provided for these types of uses on the site. However, such uses of the site are not anticipated by the dedication contained in the Luna Park Site Act and the question of the uses to which the site may lawfully be put was referred to the Crown Solicitor for advice.
The Crown Solicitor advised that on the basis of prevailing law, any use of the site for private functions, upmarket restaurants or other more private commercial uses would be in breach of the dedication contained in section 5 of the Luna Park Site Act. Furthermore, by their nature such activities would breach the requirements of section 8 and the Plan of Management that the site be available for public access at all times.
The Crown Solicitor further advised that to lawfully conduct these and other related activities on the Luna Park Site amendments to the Act and to the Plan of Management would be required.
In the meantime, Luna Park’s trading and financial position continued to worsen. In view of this, and the lack of private sector interest in operating the site as an amusement park, the Government was left with no choice but to bring operations at Luna Park to a halt.
As a result, the Administrator closed Luna Park to the public in February 1996 and it has remained closed to the public since that time except for that part of the site comprising the boardwalk and foreshore area which has remained open to the public.
The Government is now faced with the question of what the future holds for Luna Park. The people of Sydney deserve to see this wonderful part of the Crown estate put to a use that not only preserves the history and tradition of the site but is also a self-funding proposition not placing any burden on the public purse.
In an effort to assess economically viable possibilities for the future use of the site, the Government engaged the Urban Design Advisory Service of the Department of Urban Affairs and Planning to prepare 4 urban design options for the Site. In brief these options included a more traditional amusement park both with and without the Big Dipper, an open parkland and a diverse use option, including a combination of reduced amusement park facilities and restaurants, jazz clubs and the like.
All of the urban design options re-opened the lower level of the Site for public enjoyment, retained the site’s unique heritage items such as the face and provided for the use of 3 distinct areas of land comprising part of the site on the cliff top fronting Glen and Northcliff Streets for commercial development such as office accommodation and hotel.
These 3 clifftop areas are comparatively small and have never formed part of the site’s amusement facility operations. The proposals for commercial development of these sites are predicated on small floor space ratios and limited excavation so as to minimise or negate any disturbance to heritage listed fig trees on the site.
The 4 urban design options were the subject of extensive public consultation. Two stakeholder workshops were held for local residents and an information session was held for industry representatives. A telephone hotline was set up and the whole process was widely advertised. Submissions on the future use of the site were taken into consideration in forming a preferred final option for the site.
An urban design report was prepared on the basis of feedback from the consultative process. The report recommends the use of the site as an amusement park supported by a wider range of uses including restaurants, private functions, theatres and markets. The use of the cliff top area for private commercial development is also recommended. Open space areas and appropriate building envelopes are also provided for.
By way of aside, the existing plan of management contemplates the use of the cliff top land for commercial purposes although as the legislation currently stands these uses could not be implemented.
On the basis of the recommendations contained in the preferred final option, a financial viability assessment was undertaken by Sphere Property Corporation Pty Ltd. The financial viability assessment indicated that the use of the site as envisaged in the preferred option is economically viable.
I now turn to the provisions of the bill before the House. The main purpose of the bill is to address the limitations placed on the use of the site by its dedication for public recreation, public amusement and public entertainment and also by the requirement that the site be available for public access at all times.
The bill enables the site to be used for a wider range of purposes and enables the Trust (or a lessee) to control access to the site or parts thereof. The bill does not seek to amend the basic purposes for which the site is dedicated but rather sets out a number of additional authorised uses for the site to reflect the intentions contained in the preferred final option for the site.
The bill in no way restricts the public’s right of access to the boardwalk and foreshore area. The bill also seeks to provide for the commercial use of the cliff top land. Some administrative machinery amendments are also made to include in the description of the Luna Park Site, land that had been added to the site since the enactment of the Luna Park Site Act 1990. I will now canvass some of these provisions in more detail.
The bill inserts a new Part 2A in the Luna Park Site Act which provides for a wider range of uses for the Luna Park Site. The bill and the proposals for the future use of the site are based on the site being divided into 3 distinct areas, namely, the lower level of the site that will be leased to an operator for amusement entertainment purposes, the boardwalk and foreshore area which shall remain available for public access and the cliff top area which will be the subject of long term leases for commercial development by the private sector. In view of the differing uses for these areas of the site proposed section 6A defines both the boardwalk/foreshore area and the cliff top area by reference to a plan that was presented in another place by my colleague the Honourable Kim Yeadon, Minister for Land and Water Conservation. The bill provides for a more accurate description of those areas to be published in the Government Gazette within three months of commencement.
Proposed section 6B sets out a number of authorised entertainment related uses for the Luna Park Site. The authorised uses are restaurants, cafes, functions, exhibitions, conventions, meetings, markets and theatres. In addition, proposed section 6B enables other entertainment related authorised uses to be declared by regulation. Proposed section 6B expressly provides that these uses are not authorised uses for the boardwalk/foreshore area.
In relation to the cliff top area, proposed section 6C provides for the use of that part of the site for authorised commercial uses in addition to the authorised entertainment uses provided for in proposed section 6B. Hotels, shops, office accommodation and car parking are authorised uses for the cliff top and there is also power to declare additional commercial uses by regulation.
Of course all of the stated authorised uses and any additional declared uses will be subject to the provisions of relevant planning laws and proposed section 6F makes this clear.
A new Plan of Management is currently being prepared for the Luna Park Site to reflect the changes made by the bill before the House. The new Plan will be on public display shortly after the enactment of the bill for a period of 4 weeks during which community consultation will be undertaken. Following this process it is proposed to advertise the call for expressions of interest locally, nationally and internationally in December 1997.
Under proposed section 6G, the Trust, and any lessee of the Trust is entitled to control and restrict access to the site by means of the erection of gates, fences and the charging of a fee for access. This power to control access does not apply to the boardwalk/foreshore area over which public access is to be maintained at all times.
The proposed section preserves the power of the Trust to control or restrict access to the boardwalk/foreshore area on grounds of public health and safety.
Proposed section 6H makes it clear that the uses of the site authorised by the new Part 2A are additional uses and do not limit any other uses to which the site may be put.
Section 8 of the Luna Park Site Act 1990 requires that the Plan of Management include provision that there must be public access to the Luna Park Reserve and along the foreshore of that Reserve at all times. The bill amends that requirement so that it only applies to the boardwalk/foreshore area.
Schedule 1 of the Luna Park Site Act which contains a description of the site is amended to include 2 parcels of the land at Lavender Bay that were added to the site since the enactment of the Luna Park Site Act and the bill prohibits the erection of any permanent structures on one of these additional parcels - being land which has only been recently acquired from the State Rail Authority.
Following the passage of the bill and the revision of the plan of management the Trust will call for expressions of interest. The response to that call will determine the future of the site. The Government will only endorse a proposal by an operator which is financially viable and which does not involve any contribution from the Treasury. If such a proposal does not eventuate then the future of the site will need to be reassessed.
In conclusion, the Luna Park Site (Amendment) Bill will provide this great Sydney institution with a chance to operate as an economically viable facility at no cost to Government.
The proposed legislation strikes a fair balance between the need to preserve the heritage and tradition of Luna Park and the need to make the use of the site economically viable in today’s commercial climate. The bill enables the preservation of an important piece of Sydney’s history for residents and visitors alike.
I commend the bill to the House.
The Hon. D. F. MOPPETT [3.21 p.m.]: It is not only a privilege this afternoon to lead for the Opposition on the Luna Park Site Amendment Bill, I do so with great pleasure because for people of my years Luna Park in its heyday conjures up very fond memories. In its heyday Luna Park stood as an icon not only of Sydney but of the whole of Australia. I would go so far as to say that it was an icon known throughout the world. Although not on the same scale, it could be compared with Coney Island and Brighton Pier in terms of its significance to the culture, amusement and leisure of the people of its city. Although its uniqueness has been overtaken by
modern theme parks and amusement centres, Luna Park still occupies a special position in the culture and heritage of Sydney and, indeed, Australia.
That volume of history to which I refer was brought abruptly and tragically to an end by a fire in a ghost train. Sadly there was injury and loss of life, and extensive damage was caused to the structure of part of the park. That tragedy brought the park’s operations to a close and for a long time Luna Park languished. Many overseas visitors who came by ship recognised Australia first of all by Sydney heads and then by the Harbour Bridge, and when their ships pulled into Pyrmont wharf and they looked across to Luna Park they would have said, "Now we have seen it all." In the periods of the site’s interregnum, many people would have looked across the harbour with great sadness. Many travellers to North Sydney Olympic pool or ferry commuters across the harbour also would have looked with great sadness as the site remained in a state of limbo whilst matters of litigation were resolved and the park awaited a new owner to become financially viable.
When that eventually happened, the coalition resolved that in government it would do whatever it could to assist the new proprietors in the refurbishment of Luna Park and to retain all that was good. It was apparent that it would not be restored to its original state. Nevertheless, we were determined that Luna Park would again be a feature of Sydney life and a venue that visitors could visit with great confidence. Sadly, and of great concern to us all, the venture failed. In looking at the reasons for its failure, it had to be recognised that during the period the park was closed there had been a change in the usage of the land, as is so often the case in a city such as Sydney. An area which had once carried on an activity of amusement with its colour and light had become an area of heavy development of residential apartments and its value had changed. The residents came to enjoy the quiet that had descended on the site and were determined to retain the new environment which had evolved since the closure of the park.
The excessive noise of the big dipper, one of the best known amusements of the park, became a matter of annoyance to the local residents. They took action to close it down and were eventually successful. I do not know whether the noise was caused by the ride’s cars or rails rattling too much or by the patrons emitting high-pitched squeals as they almost turned loop-the-loop. The big dipper was certainly not for the faint-hearted and part of the amusement was to let out a good yell as you went round. But that was not acceptable to the local residents and the operation of Luna Park once again fell into a hole. If it were possible, that wonderful smiling face at the site’s entrance would have effectively expressed the mood of the park by drooping at the corners of the mouth in sadness.
The Opposition approves the present Government’s deal which will see the park renew operations with some modified activities, and welcomes the site being open again for the enjoyment of citizens and visitors to Sydney. However, I give notice that I will move an amendment in Committee about a concern that the proposed development may allow for the removal of certain trees. I have heard the assurances from the Minister in another place that preservation of the trees is ensured by the planning instruments of North Sydney Council, but the citizens of New South Wales should not be expected to accept that such preservation should repose entirely in the council.
The amendment is important to the preservation of the trees along the top of the cliff. It has been prepared by Parliamentary Counsel and I trust that it has been widely circulated. It is very similar to the one circulated by the Hon. R. S. L. Jones. In the second reading stage I signal the Opposition’s general agreement to the bill but in Committee I will put the case why the Opposition amendment should be preferred to the amendment of the Hon. R. S. L. Jones. If Luna Park is reopened certain members of this House who come into the Chamber for their amusement, and who from time to time are unable to contain themselves or to behave decorously, will be able to adjourn for a little while to Luna Park, let their inhibitions go and indulge in the sort of merriment that is inappropriate for this House.
The Hon. B. H. Vaughan: Have some committee meetings there.
The Hon. D. F. MOPPETT: What a fabulous place it would be to do that. The trip across the water would make it worthwhile and put us all in the right mood. Nobody in the Chamber would not raise a glass and say, "Here’s to Luna Park." We want to see it operating again, albeit that, compared with the Luna Park of old, restrictions will apply. Nevertheless, the reopening of Luna Park will be very much welcomed by both sides of the House. The general community will similarly welcome Luna Park’s reopening, when the gates open and people can go in through that fabulous smiling face.
The Hon. I. COHEN [3.32 p.m.]: I support the Luna Park Site Amendment Bill. The New South
Wales Greens support the Government’s attempt to breathe life into the Luna Park site. Luna Park is an icon for everyone. It is a part of the entertainment landscape of Sydney and regional New South Wales and a great place for international visitors, particularly in the lead-up to the Olympics. It certainly has not been operating at its full potential. A few years ago I returned to Luna Park with a few young children. I was disappointed to see the site in its run-down state. Like many members of this House, I have fond memories of going to Luna Park. For 10 shillings I could have a wonderful afternoon of entertainment there and it holds fond memories for me. Such a prominent site on Sydney’s waterfront cannot be wasted; it should be renovated and rejuvenated.
The area has traditionally been a favourite with the entire community. It is a top fishing spot. School groups utilise the playing fields under the bridge near Milsons Point station, and the Olympic swimming pool was a spawning ground for some of Australia’s best swimmers. Luna Park complemented the variety of uses of the area and gave a vibrancy and energy which went on long into the night. I note the remarks of the Hon. D. F. Moppett about the big dipper. More diversified forms of entertainment on the site might be in harmony with the views of surrounding residents.
The revamped Luna Park site has many elements which are sorely needed in North Sydney and the northern suburbs as a whole. The north shore is short on sizeable convention venues, market-style restaurants and entertainment centres. Apart from the cinema complexes and the shopping centres of Chatswood, Hornsby and Warringah Mall, and the relaxed attitude of beachfront suburbs such as Manly, there are few quality theatre venues close to restaurants and public transport. The New South Wales Greens have a few problems with the proposal as outlined. Our primary concern is protecting the heritage of the site, particularly the heritage listed fig trees. The Hon. Kim Yeadon, the Minister for Land and Water Conservation, informed the lower House that the preferred option has been assessed as being economically viable "on the cliff-top site, even with the appropriate protection of those trees".
Fig trees are the arboreal icons of Sydney, the Botanic Gardens, Taronga Zoo, Balmoral, Pyrmont Park and Wentworth Park. From numerous harbourside locations these dark green sentinels have watched our city develop. Not a few have been bulldozed in the rush for progress. A recent example is the trees lost from Moore Park for the folly of the Eastern Distributor. I strongly support the amendment foreshadowed by the Hon. R. S. L. Jones. Heritage listing has not protected trees against progress in every case, and the North Sydney local environment plan can be overridden. The project is a private development on Crown land and the Government has the power to act to approve the development of the site should it choose to do so.
A high-rise development on sites B and C also has implications in relation to the aesthetic impact on neighbouring offices, hotels and residents. If the Government can override the North Sydney environment plan, which restricts development to four storeys, and a financially attractive proposal is mooted, perhaps one which relieves the Government of some of the $50 million debt it has incurred in trying to make the site viable, who can say what the decision will be? The lease of the cliff-top sites for further development, particularly the potential of building an eight-storey building which may contain parking, offices, restaurants, et cetera in front of existing residential apartments, may well cause undue stress and loss of amenity for people affected. A social impact statement should be prepared for this aspect of the development. The necessity for this part of the proposal to go ahead should be examined in view of the expected impacts on not only the heritage fig trees but also the residents of the surrounding area.
Another problem is access to the site. Luna Park has suffered from a lack of viable and attractive transport options. Using the train involves a long walk to the site, even with the proposed stair-elevator access. This may cause difficulties for people with small children or those who require wheelchair access. Perhaps improved ferry or boat access to the site could be explored. I am sure the viability and popularity of a site with poor parking, such as Luna Park, could be improved with attractive travel experiences on the harbour which add to the enjoyment of the total Luna Park experience. There is a great opportunity to be creative and to educate Sydneysiders on the wide range of public transport options that exist, but public transport must be made more easily accessible and more efficient. Overall, I support the bill, with the foreshadowed amendment by the Hon. R. S. L. Jones, and I look forward to active community participation in the plan of management which will be developed for the site. Luna Park will receive support in the House and across the Sydney community. The area is an icon which should be maintained and passed on to future generations. Servicing of the area by ferry in the lead-up to the Olympics would be valuable for local business and Luna Park itself. It would allow the people of Sydney to have an enjoyable crossing of the harbour
to visit one of their favourite areas. I support the bill.
The Hon. ELISABETH KIRKBY [3.38 p.m.]: I support the Luna Park Site Amendment Bill 1997. The purpose of the legislation is to amend the Luna Park Site Act 1990 to authorise a wider range of uses, while preserving unrestricted public access to the boardwalks and foreshore areas. As has been pointed out by other speakers, Luna Park has been a Sydney icon since it opened in 1935. It has been immortalised in paintings by the well-known artist Martin Sharp and was given further lustre by the incomparable Tiny Tim when he entered the Guinness Book of Records for continuous singing on the Luna Park site in the 1980s.
The Hon. J. W. Shaw: How long did he sing?
The Hon. ELISABETH KIRKBY: Regrettably, I do not know but I will try to find out before the Committee stage of the bill. Luna Park survived lean years during the Second World War. It was closed in 1979 after the tragic ghost train fire. It reopened between 1981 and 1989 and closed again. It reopened in January 1995 after investment of State funds and further development of the facility for its ongoing operation. However, regrettably, by February 1996 it was clear that it could not trade profitably as a pure amusement park and was closed again. The bill will allow Luna Park to be operated by the private sector as a modified amusement park supported by a range of commercial uses involving restaurants, private functions, exhibitions, conventions, markets, theatres and meetings.
The bill will also authorise the use of the cliff-top area fronting Glen Street and Northcliff Street for hotels, shops, office accommodation, car parking and other prescribed uses. Doubt has been expressed as to how much and how often the public will have access to the amusement rides if Luna Park is run by the private sector. The danger of the development on the cliff top is that we could get another Harry Seidler Blues Point Tower that would completely overshadow, in the physical and aesthetic sense, the ambience of the Luna Park site.
The biggest drawcard for Luna Park as an amusement park is the big dipper. In the crossbench briefing of 5 November, in answer to a question a representative from the department concluded that because of the noise limitations on the operation of the big dipper it was unlikely that that ride would be used in the future. The noise talked about is the screaming of the patrons on the big dipper. I am informed that the big dipper itself runs on neoprene wheels and is relatively quiet. However, I have been given a simple solution to this problem: the Seidler scream mask. Harry Seidler is the main person complaining about the noise. It is proposed that a mask or helmet, similar to a full-face motorcycle helmet, be worn by each rider on the big dipper. This will enhance the experience of the riders being in an enclosed space, and from a safety aspect the helmet would be of great advantage. I am not sure whether I would be prepared to go on the big dipper whether or not I was wearing the mask. However, the mask would obviously solve the noise problem because patrons could scream into the mask and the sound would be muffled.
I support the bill, with the reservation that the public must have access to the fun park. I was not joking about the Harry Seidler scream mask, because I believe that by arranging for the use of a similar mask it would be possible to operate the big dipper. Having been designed and built specifically for that site, at an enormous capital cost, the big dipper should be allowed to operate. The final statement I make relates to the amendment that will later be moved by the Hon. R. S. L. Jones. The cliff-top development, whatever it is, must not detract from the amusement park section of the Luna Park site. It is obvious that diverse uses for the site will ensure the long-term viability of the park. I was initially attracted to the coalition amendment to protect the heritage-listed trees on the site. I have since decided that although the amendment to be moved by the Hon. R. S. L. Jones is specific to the listed fig trees on the site - and I do not believe that it is necessarily appropriate to enshrine the protection of specific trees in an Act of Parliament - I cannot support the coalition amendment in its current form.
I am aware that this may mean the loss of two of the coral trees, erythrina speciosa, currently on the site. However, these two specimens are in poor condition as a result of inexpert pruning, neglect and damage to the trunks caused by cars and trucks over the years. There is also evidence of borers and advanced rot in the lower fork of one tree, and it is obvious that in the foreseeable future it may split and come down in a severe storm. In any case, the two coral trees are by no means remarkable or outstanding examples of their type, and I have been advised that their age gives them little historic significance. I shall therefore support the amendment foreshadowed by the Hon. R. S. L. Jones, I shall not support the amendment moved by the Opposition, but in general I support the bill.
The Hon. R. S. L. JONES [3.44 p.m.]: I support the legislation. By providing for a wider range of activities to occur on the Luna Park site the
bill will ensure the financial viability of the fun park so that this great Sydney icon can continue to serve the people of Sydney and visitors to this city in a way that will not create ongoing financial impost on the Government and the New South Wales taxpayers. To date an enormous amount of taxpayers’ money has been poured into Luna Park. In fact, in early 1995 some $50 million of taxpayers’ money was spent on reopening the park. Admittedly, part of that money went towards the restoration of the heritage components of the site. However, a great deal of it was essentially wasted on this venture. Honourable members may recall that I warned Robert Webster at that time that the big dipper would cause severe problems; but he laughed it off and said, "You will be the first to be on the big dipper." I said, "No, I won’t be, and it is going to cause terrible problems."
The Hon. R. T. M. Bull: You probably don’t like that sort of thing.
The Hon. R. S. L. JONES: I love big dippers - the bigger, the better. I am therefore fully supportive of the Government’s move, through this bill, not only to rescue Luna Park but to prevent such a waste of taxpayers’ money recurring. However, I have grave concerns about the effect that the proposed development of the cliff-top areas for hotels, shops, office accommodation, car parking, and so on, may have on the heritage-listed Port Jackson fig trees there. While I accept that the relevant provisions of the planning legislation and the heritage listing of the fig trees provide them with a certain level of protection, I and major nature conservation groups, including the Australian Conservation Foundation, Friends of the Earth, the National Parks Association of New South Wales, the Total Environment Centre and Greenpeace, do not consider that the protection provided by those instruments is enough to ensure that this important community and heritage landscape is not threatened or damaged by the proposed use of the cliff-top area.
I will therefore move an amendment to the Opposition’s amendment to ensure that the heritage-listed fig trees will be protected. I regret that I will not be able to save the coral trees which, as the Hon. Elisabeth Kirkby said, are in poor condition anyway and of course are not indigenous to either the area or Australia. Those coral trees will undoubtedly go down, which is unfortunate. I am pleased that the Minister took the trouble to come to my office to discuss my proposed amendment and finally agreed to accept it, although at first he did not feel inclined to do so. The amendment is not intended to hinder the Luna Park Trust in any present or future actions that it takes in regard to the safety and maintenance of those trees. I believe that the legislation will be completely acceptable.
Reverend the Hon. F. J. NILE [3.47 p.m.]: The Christian Democratic Party is pleased to support the Luna Park Site Amendment Bill 1997 and congratulates the Government on its ongoing efforts to try to revive this area so that it can retain some of its historic nature as Luna Park. The bill provides for a range of entertainment uses, such as restaurants, function rooms, markets and theatres, to be authorised uses for the Luna Park site, except for the boardwalk-foreshore area. The bill also provides for hotels, shops, office accommodation, car parking and other prescribed commercial uses to be additional authorised uses for the cliff-top area fronting Glen Street and North Cliff Street.
The bill will clarify the power of the Luna Park Reserve Trust, update the description of land that comprises the Luna Park site to take account of recent additions to the site, and give effect to a prohibition on the erection of permanent structures on one of those new sites. One of the tragedies about Luna Park is that it seemed that a successful solution had been reached when it was reopened in January 1995, but complaints were made by residents of more recent developments - people who obviously knew they were building expensive residential accommodation right on the border of Luna Park. When Luna Park was reopened restrictions were placed on the operation of various entertainment aspects which those people claimed made too much noise.
It is a similar situation to that of residents who choose to build near Mascot airport yet complain about planes flying low overhead. Years ago that area contained large paddocks but people have gradually encroached on the airport site. The same has occurred with Luna Park. If I had been in charge I would have told those people, "You built there, you put up with the noise from Luna Park." However, the Land and Environment Court upheld residents’ objections and Luna Park became unprofitable. The site went into decline because no-one was prepared to spend the substantial sum needed for maintenance and repairs. The process of trying to get Luna Park restored to its original state has gone round in circles. For a number of years my uncle Jim, who was in charge of the dodgem cars entertainment area, used to give me free rides.
The Hon. M. R. Egan: Pay back the money.
Reverend the Hon. F. J. NILE: This was before the Government became involved. The Hon.
Elaine Nile has just reminded me that when we were 16 or 17 years of age we had a few dates at Luna Park, so it holds many memories for us, going back a number of years. I am pleased that the Government has taken the initiative. Even though we are concerned about the coral trees mentioned earlier, nothing should be done to obstruct the resurrection of the site under the Government’s leadership.
Motion agreed to.
Bill read a second time.
The Hon. D. F. MOPPETT [3.54 p.m.]: I move:
Page 4, Schedule 1, proposed section 6C, line 19. Insert ", but only if they do not threaten or damage any heritage listed trees in that area" after "section 6B)" .
The Opposition is concerned about the general protection of vegetation on the cliff top above Luna Park. This is consistent with the stance taken by the National Party in similar circumstances. The citizens of Sydney have cleared areas for housing, office space and so on when required. When one compares that with the husbandry of trees in country areas, one can understand why the National Party would have a predilection to protect vegetation in an extensively built-up area. It behoves me this afternoon to argue the merits of the Opposition amendment compared with that of the Hon. R. S. L. Jones, who will seek to amend my amendment by inserting the word "fig" after the words "heritage listed". He and other honourable members have inspected vegetation in the area and have reached a decision that only one species of trees is worthy of protection.
The Hon. R. S. L. Jones: That is speciesism.
The Hon. D. F. MOPPETT: It is, and it is a discrimination of which I should not have thought the Hon. R. S. L. Jones would be guilty. However, he is on this occasion. It is not appropriate for the Committee to debate one species in preference to another. The Minister in the other place has given an assurance that planning instruments are already in place in the local environmental plan of North Sydney Council for the protection of vegetation in that area, and the Opposition reinforces that assurance on behalf of the people of New South Wales and Australia. It is inappropriate to have a list of species that will be covered and to condemn, by omission, species that are not mentioned. That is the real issue at stake. The Opposition relies on the definition "heritage listed trees". If the trees are not of heritage value, the Opposition withdraws its opposition; but if they are, they should be preserved by Act of Parliament.
I have heard it said that the coral trees are not in good condition and rural members would seek their rehabilitation if they were on their farms and homesteads. I am sure the new Luna Park operators would want the trees that have been temporarily neglected to flourish. Heritage-listed trees in the area should be protected but not specifically named. I challenge the Hon. R. S. L. Jones to deny that somewhere along the line a deal has been struck so that the trees he seeks to preserve will be left and under the shade of their spreading branches a food-vending or other commercial activity will be established on the site now occupied by other trees. This is of concern to the Opposition. If that is the case, the Hon. R. S. L. Jones should be upfront and any change to the planning for or usage of the area should be debated. Any such development should not be given carte blanche by providing that only fig trees will be preserved. I ask the Hon. R. S. L. Jones whether the fig trees to be given this protection are of the fruit-bearing type, and if so, of which species? Will they be Port Jackson figs or Moreton Bay figs. The Committee should stick to the wording of my amendment, which will ensure that heritage-listed trees in that area are not threatened or damaged.
The Hon. R. S. L. JONES [3.59 p.m.]: Let the message go forth loud and clear to the people of the bush that the National Party wishes to save trees, even non-indigenous trees. It is admirable that the Hon. D. F. Moppett, supported by other National Party members, wishes to save heritage-listed trees - and I am sure that he and his colleagues feel the same about other trees in western New South Wales. I presume that in the future they will be careful about clearing trees, be they heritage-listed trees or otherwise. They now know the value of trees, whether for shade, keeping pastures green or for providing wildlife habitats. There has been an enormous shift of consciousness in the National Party during the past few years, and that is wonderful!
Pursuant to sessional orders progress reported and leave granted to sit again.
QUESTIONS WITHOUT NOTICE
AUSTRALIAN CAPITAL TERRITORY ELECTRICITY AND WATER PRIVATISATION
The Hon. J. P. HANNAFORD: My question without notice is directed to the Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council. Has the New South Wales Government entered into discussions with any members of the Australian Capital Territory Legislative Assembly in relation to the privatisation of Australian Capital Territory electricity and water? If so, what was the nature of those discussions?
The Hon. M. R. EGAN: I am not aware of any such discussions.
ARREST OF ROBERT DUNN
Reverend the Hon. F. J. NILE: My question without notice is directed to the Attorney General, representing his portfolio and the portfolio of the Minister for Police. Is it a fact that the Australian Federal Police knew that Robert "Dolly" Dunn was in Honduras at least 10 months ago? Is it a fact that New South Wales police knew that he was in Honduras prior to 60 Minutes personnel contacting them? In light of the Wood royal commission’s investigation into paedophilia, will the Attorney General explain why the New South Wales Government did not put pressure on the Federal Government to extradite Mr Dunn from Honduras earlier this year? Why did the Government not send any New South Wales police officers or other law enforcement officers to Honduras to speed up his extradition? What did the Attorney General know about Mr Dunn’s whereabouts? When were the Attorney General and the Minister for Police first informed of Mr Dunn’s whereabouts?
The Hon. J. W. SHAW: I was given no information about the whereabouts of Mr Dunn. As I am sure Reverend the Hon. F. J. Nile is aware, the extradition is in the hands of the Federal Attorney-General and the Australian Federal Police. Today the Federal Minister for Foreign Affairs, Mr Downer, and the Federal Attorney-General, Mr Williams, were asked questions on this matter in the House of Representatives. Mr Williams said that he is sensitive about dealing with operational matters of this kind when extradition proceedings are pending. It has been alleged by the press that the Australian Federal Police knew the whereabouts of Mr Dunn well before action was taken - and well before the 60 Minutes team found him. Questions could be asked about that matter but it is difficult to deal with it comprehensively when extradition proceedings are continuing in Honduras. I will liaise with the Federal Attorney-General to see whether any steps should be taken to improve matters in the future or to uncover the facts in relation to this exercise.
Reverend the Hon. F. J. NILE: I ask a supplementary question. The Attorney General stated that this is a Federal Government matter. Has the New South Wales Government formally requested the Federal Government to extradite Mr Dunn from Honduras?
The Hon. J. W. SHAW: The New South Wales Government formally asked the Federal Government to take the steps available to it to extradite Mr Dunn from wherever he might be found.
NEWCASTLE ENTERPRISE AWARDS
The Hon. JAN BURNSWOODS: My question without notice is directed to the Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council. Will the Minister inform the House of the results of the 1997 Newcastle Enterprise Awards?
The Hon. M. R. EGAN: When BHP announced that it would cease manufacturing steel in Newcastle in 1999 a number of gloomy predictions were made about the future of the Hunter. However, Newcastle retains its strong spirit and optimism. In fact, no region in New South Wales is more ready to look to the future or to claim prosperity through its efforts than the Hunter. This spirit is embodied in the businesses that won the Newcastle Regional Chamber of Commerce 1997 Newcastle enterprise awards. The winners were announced at a function in Newcastle last week which was attended by my Parliamentary Secretary, the honourable member for Port Jackson, who presented the small business award. The winner of the small business award operates in the sector that has come to be one of the Hunter’s largest employers: tourism and hospitality. The Esplanade Newcastle Beach Hotel is the finest four-star beachfront hotel in Newcastle. In 1996-97 it sold almost 22,000 rooms. The General Manager, Ian Baker, said that the hotel plans to extend and become the Hunter’s first five-star hotel.
The Hon. Dr B. P. V. Pezzutti: It is a good hotel.
The Hon. M. R. EGAN: Yes, it is a good hotel. In the past few years it has increased its staff by more than one-third.
The Hon. Dr B. P. V. Pezzutti: And it has good staff.
The Hon. M. R. EGAN: It has Novocastrian staff, which is why they are so good. The winner of the large business award, Forgacs Engineering Pty Ltd, represents the Hunter’s traditional economic base. Forgacs began in the 1960s as a light to medium engineering company, but over the years its core operations have come to include ship repairs and shipbuilding. Forgacs has led Newcastle’s revival as one of Australia’s major shipbuilding and repair ports, a role many in the Hunter thought they had lost forever. In 1987 Forgacs employed 180 people, including 38 apprentices; today - 10 years later - it employs 715 people, including 72 apprentices. The Hunter remains proud of its ability in manufacturing, and Forgacs Engineering is up with the best the region has to offer.
The Government will make sure that more and more enterprising companies, like those recognised by these awards, will become aware of the benefits of doing business in the Hunter. That is why the Government established the $10 million Hunter Advantage Fund in this year’s budget. Investors are seeing these opportunities. In just seven months investment inquiries to the Department of State and Regional Development and the Hunter Economic Development Corporation have trebled. The Hunter Advantage Fund has helped relocate a veterinary pharmaceutical company to Rutherford, and has funded a major study in container shipping on the BHP site. The fund is also being used to market the Hunter. Part of the marketing campaign has seen the Hunter Economic Development Corporation develop a new logo - Hunter: the Promise of Australia. The success of Forgacs Engineering and the Esplanade Newcastle Beach Hotel bears out the truth of that logo.
TOTALIZATOR AGENCY BOARD PRIVATISATION
The Hon. R. T. M. BULL: I address my question to the Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council. Will the Treasurer concede that his deal with the racing industry requires new legislation in Parliament over the privatisation of the TAB? If so, will the Treasurer now concede that the previous legislation presented to Parliament was flawed, just as the Opposition predicted? Will the Treasurer agree with the Premier’s statement on Australian Broadcasting Corporation radio today that details of the TAB privatisation will be announced in the next couple of days?
The Hon. M. R. EGAN: The Leader of the National Party in this House has taken a very keen interest in not only the racing industry but also the privatisation of the TAB.
Reverend the Hon. F. J. Nile: And casinos.
The Hon. M. R. EGAN: And casinos. As the honourable member will be aware, for some weeks now there have been detailed negotiations between the board of the TAB and the racing industry.
The Hon. R. T. M. Bull: Months.
The Hon. M. R. EGAN: Yes, probably for some months. I am hopeful and quite confident that they are nearing a successful completion. There are still some issues to be resolved.
The Hon. J. P. Hannaford: There have been for a while.
The Hon. M. R. EGAN: Yes, but they are getting closer to resolution. The negotiations are getting down to the very minutiae of the specifics, and that is very good. I am hoping that there will be agreement if not this week, early next week.
The Hon. J. P. Hannaford: And legislation?
The Hon. M. R. EGAN: There will be legislation, but my understanding at this stage is that the legislation does not relate to the agreement that is currently being hammered out. There were some flaws in the initial legislation, and they will have to be rectified.
The Hon. J. P. Hannaford: Will legislation be introduced before Parliament rises?
The Hon. M. R. EGAN: Yes. I would hope that the Government will introduce the legislation into the lower House next week.
STATEWIDE LINKED JACKPOT SYSTEM
The Hon. A. B. MANSON: My question without notice is directed to the Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council. Will the Treasurer inform the House of any progress in the development of a statewide linked jackpot system?
The Hon. M. R. EGAN: This question could be said to be supplementary to that asked by the Deputy Leader of the Opposition, who has a keen interest also in the licensed club movement. Last week the Premier outlined proposals for a statewide linked jackpot system aimed at alleviating the concerns of many clubs. The proposal was developed to take account of concerns expressed by the Registered Clubs Association during discussions with the TAB. Under the plan, the TAB will own and operate a statewide linked jackpot network, called TABLink, to which all potential gaming suppliers can connect their products.
TABLink will ensure that there is healthy competition amongst linked jackpot suppliers, which, as honourable members will appreciate, has been a long-held concern of the club movement. Clubs are adamant that there must be competition between suppliers, and TABLink will provide that. Clubs will own and control their gaming machines and will be able to choose their gaming machine suppliers as well as the jackpot games offered to patrons. On Saturday, 15 November, Mr Keith Kerr, Executive Director of the Registered Clubs Association, was reported in the Daily Telegraph as saying that clubs welcomed the TABLink changes. Mr Kerr said that clubs would have certain machines set aside that are part of the linked jackpot prize. He went on to say that "bigger clubs might have machines linked to three, four or more different suppliers".
At the moment the biggest payout on a poker machine is $100,000. TABLink jackpots will often be in the millions of dollars. The TABLink proposal will also reduce the cost of monitoring the turnover and payouts of gaming machines by creating economies of scale and by using much of the same equipment for monitoring as will be used for the links. The monitoring price is yet to be set by the Independent Pricing and Regulatory Tribunal, but it will be far below the $50 a machine that has been suggested. TABLink will provide a central monitoring service at a reasonable cost to clubs, particularly smaller clubs. The financial details of linked jackpots and the monitoring service will be finalised in the negotiations between the TAB chairman, Mr Gary Pemberton, and the Registered Clubs Association.
NARRABRI CHILD-CARE COMPLAINT
The Hon. PATRICIA FORSYTHE: My question is directed to the Minister for Community Services, Minister for Aged Services, and Minister for Disability Services. Will the Minister inform the House as to how the Department of Community Services has handled the case of a family in Narrabri in which the parents are claiming that their four-year-old boy has been removed from their care illegally? Will the Minister also inform the House of the involvement his ministerial office has had in the handling of this case? What action has the Minister taken to ensure that the case has been handled appropriately? What action is the Minister taking in response to the concerns of the boy’s parents?
The Hon. R. D. DYER: I am certainly willing to acknowledge the approach the office of the Hon. Patricia Forsythe made to my office regarding this complex issue. I can inform the House that to my knowledge the particular individuals involved have approached the following offices: the Premier; the Deputy Premier and Minister for Health; the Attorney General; the honourable member for Keira and Parliamentary Secretary for Aboriginal Affairs; three members of my personal staff; the shadow minister for community services, the Hon. Patricia Forsythe; the Community Services Commission; the Aboriginal Legal Service; Channel 7; and the Daily Telegraph. The case is a complex one and centres around the removal of a child from his natural parents and his placement with the child’s maternal grandparents. Originally, this arrangement was made on a voluntary basis with the complainants agreeing to participate in assessments arranged by the department. However, after one complainant suggested to the Community Services Commission that he may remove the child and take him to a different jurisdiction, the department assumed care of the child under section 62A of the Children (Care and Protection) Act.
On 16 July this year the Narrabri Children’s Court found that the child was a child in need of care and made an order placing the child in the care of his maternal grandparents. During that period the complainants made numerous threats to physically assault or kill the district officer and the manager involved in the case . The complainants also claimed that the departmental officers were biased. Notwithstanding the threats and intimidation, Department of Community Services assessments and casework decisions in relation to this matter were reviewed independently by a manager from another departmental unit. The review found no bias in the department’s actions. Both complainants have consistently refused to participate in assessments that the department has arranged, despite giving undertakings to the Children’s Court to do so. Formally arranged access provisions have not been fully taken up by the complainants. The case was taken on appeal to the District Court in late October this year, and the District Court confirmed the decision of the Children’s Court at Narrabri.
During this extended process the Department of Community Services has made provision for an Aboriginal district officer to work with the complainants. However, the complainants failed to keep a number of appointments made with the district officer. The child was placed with his extended family, consistent with the Aboriginal child placement principle. The complainants did not formally complain about the department to the Community Services Commission, despite contacting the commission. I understand that the complainants are to further appeal to the Supreme Court, which, of course, is their legal right. I can advise the House that as recently as yesterday further allegations were made by one complainant that he would kill someone unless something was done. This is a distressing case and has been made more so by the threats of the complainant. I stand by the claim made in writing to the complainants that the department is willing to work with the parents, provided that they agree to undertakings given to the court and do not continue to direct threats towards and intimidate the department’s staff.
[Questions without notice interrupted.]
The PRESIDENT: Order! I announce the distinguished presence in my gallery of a delegation from the National Conference of State Legislatures of the United States of America, led by the Hon. Michael E. Box.
QUESTIONS WITHOUT NOTICE
[Questions without notice resumed.]
ARREST OF ROBERT DUNN
The Hon. FRANCA ARENA: I ask the Attorney General, and Minister for Industrial Relations a question without notice. Did he see the 60 Minutes program last Sunday regarding the apprehension of Robert "Dolly" Dunn in Honduras? If in the affirmative, did the Minister notice that Mr Dunn alleged that he was given immunity by the New South Wales Government in 1989 for information given? Will the Minister report to the House who the acting judge was that gave Mr Dunn immunity? On whose advice was it given? Was the information given by Mr Dunn used to uncover paedophile networks and/or charge paedophiles, making the immunity worthwhile? Is the Minister able to estimate how many children Mr Dunn has abused in Australia and overseas since 1989?
The Hon. J. W. SHAW: I did not see the television program to which the honourable member referred. As presently advised, I do not know whether some immunity or indemnity was given to Mr Dunn in or about 1989, but I would be happy to examine the matter and provide appropriate information to the honourable member.
The PRESIDENT: Order! I take this opportunity to remind honourable members of the sub judice rule. Although the rule has not yet been breached, I entreat members to use extreme caution when referring to matters that are before the courts. Recently the Solicitor General expressed the opinion that many such cases are in dire jeopardy of being aborted because media publicity is precluding the possibility of fair trials.
ENTERPRISE BARGAINING AGREEMENTS
The Hon. Dr MEREDITH BURGMANN: Will the Attorney General, and Minister for Industrial Relations inform the House of the progress of enterprise bargaining under the New South Wales Industrial Relations Act.
The Hon. J. W. SHAW: Since the Industrial Relations Act began its operation, 213 enterprise agreements have been lodged, 186 of which have been approved and only 2 of which have been rejected. Those figures are as at 4 November. The rate of approval of enterprise agreements under the 1996 Act compares favourably with that experienced under the 1991 Act. At the equivalent time after commencement a similar number of enterprise agreements had been lodged. However, 44 per cent more agreements had been approved under the 1996 Act. The average processing time for agreements has fallen from 45 days in December 1996 to 20.2 days for agreements approved during the third quarter of this year. That is, agreements are now being processed in one-quarter of the time it took to process them under the 1991 Act. In the majority of enterprise agreements under the 1996 Act, employees are represented by a union.
More than three-quarters of all agreements involve at least one union as the employee party. On average, enterprise agreements that have employees represented by unions cover approximately four times as many employees as an employee agreement. An average of 81 employees are covered by union enterprise agreements, while employee enterprise agreements cover an average of 21 employees. Approximately 10,500 employees are currently covered by enterprise agreements made
under the 1996 Act. It is expected that by the end of this year approximately 18,500 employees will be so covered. Enterprise agreements approved under the 1996 Act overwhelmingly cover enterprises in the private sector - 91.9 per cent of agreements cover private sector employees. The agreements largely cover enterprises in three sectors: manufacturing, transport and storage, and personal and other service sectors.
The Act provides the best basis from which to commence fair and equitable bargaining, allowing appropriate rights for unions to represent employees and a proper degree of independent scrutiny by the commission. Enterprise agreements under this Act have facilitated consultative arrangements. The principles for approval of enterprise agreements contain a provision that calls for enterprise agreements to facilitate the establishment of consultative mechanisms and procedures appropriate to the business. The parties are actively encouraged to seek innovative, flexible and equitable workplace arrangements. A very interesting feature of the way in which this Act has operated in the past year or so is the very high degree of consensus between the trade union movement and the employers. We actually had complete agreement between employers and the unions about the appropriate enterprise bargaining principles.
The Department of Industrial Relations has been appropriately active in publicising the Act. It published a joint consultation handbook for employers, unions, employees and their representatives to assist in the setting up of a consultative committee or reviewing its performance. Employer-employee consultative mechanisms have been identified in 65 enterprise agreements. The most common type of consultative mechanism is a consultative committee. Parties to 42 enterprise agreements have established a consultative committee as a result of the enterprise agreement. Recently the Premier of New South Wales presented new directions awards to recognise excellence and innovation in enterprise bargaining in New South Wales. The recipients of the awards - Transwater and Dow Corning - both recognise the value of employee consultation and involvement in their enterprises. This is the best-practice approach that this Government believes is worth rewarding. The agreements have not simply been replications of the awards or reductions of award conditions; on the contrary, they have contained innovative arrangements.
The Hon. J. F. Ryan: Who’s listening to this?
The Hon. J. W. SHAW: I understand that Opposition members are not interested in these matters. If one’s mind is ignorant of these matters or closed to them, or if the level of intelligence is not sufficient to comprehend these matters, I understand that. I am not critical of it, but silence would facilitate the proceedings of the House even if there is a lack of interest. The sheer obtuseness of members opposite inspires me to give more details to the House so that I can persuade them that these matters are important for the economic wellbeing of New South Wales. The compilation of more details and statistics may penetrate the intellects of Opposition members, although that is doubtful. Changes in remuneration structures have been effected in approximately 31 per cent of all enterprise agreements processed to date. The changes include the introduction of productivity-based payment, performance-related pay, bonus payments, annualised salaries, pay packaging and profit sharing.
More than 50 per cent of all New South Wales agreements make changes to the way work is organised in an enterprise. Work organisation changes include multiskilling arrangements, removal of existing demarcations, introduction of team-based work and competency-based classification structures, and provision for total quality management. These figures and provisions demonstrate the effectiveness and utility of the New South Wales Industrial Relations Act 1996. The legislative regime in place is broadly supported. We do not have the sort of contention and discord that we had under conservative governments in New South Wales. We brought the parties together and hammered out something that most people supported and everyone saw as legitimate. The transparency of the New South Wales system contributes to the security of employment for those under the system because they can proceed confidently in their workplace negotiations, sure in the knowledge that the system supports fair outcomes. This contributes to harmonious and stable workplace arrangements, which benefit the New South Wales economy.
ELECTRICITY INDUSTRY PRIVATISATION
The Hon. J. M. SAMIOS: I ask the Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council whether he or the Premier intends to meet a delegation of 12 representatives from America’s top unions. Will he be encouraging these union representatives to invest in the New South Wales electricity industry?
The Hon. M. R. EGAN: I am not aware of any meeting with representatives from American trade unions scheduled in my diary. That is not to say that the Premier may not be meeting with some of them. I am not sure that American trade unions would have a particular interest in investing in New South Wales or Australian utilities - they may have - but many Australian trade unions, through their superannuation funds, have invested in privatised utilities, particularly in Victoria. I understand that they are making the appropriate arrangements to invest in privatised utilities in New South Wales. They would be most welcome bidders.
The Hon. J. M. SAMIOS: I ask a supplementary question. Why is the Minister continuing to press on with electricity privatisation when it has clearly been dismissed by the rank and file of the ALP and the key unions?
The Hon. M. R. EGAN: I am pressing on with electricity privatisation because, as I have pointed out on numerous occasions, I think it is the best course for New South Wales, the people of New South Wales, job creation in New South Wales and every community throughout every nook and cranny of New South Wales. Regional country towns will benefit from a massive injection of new social and economic infrastructure spending. It will be good for jobs and it will be good for New South Wales consumers.
The Hon. R. S. L. JONES: I ask the Attorney General, representing the Minister for the Environment, whether the Minister is aware of evidence that where calicivirus has destroyed rabbit populations foxes are now preying on native wildlife and killing up to 90 per cent of joeys? Is it necessary to have a so-called culling of kangaroos in areas where foxes are taking nearly all the joeys? Will the Minister therefore ask the Minister for the Environment to arrange for a scientific study to be undertaken in those areas where rabbits have been removed to determine the effect of the additional impact of commercial shooting on kangaroo populations?
The Hon. J. W. SHAW: I will undertake to refer the honourable member’s question to the Minister for the Environment and obtain a response.
SUBSTITUTE CARE CONTRACTS
The Hon P. T. PRIMROSE: Can the Minister for Community Services, Minister for Aged Services, and Minister for Disability Services advise the House about the current status of the renegotiation of substitute care contracts with non-government service providers?
The Hon. R. D. DYER: I can advise the House that 15 services for young people with high support needs were contracted in 1994. These contracts fall due for renewal in the first half of 1998. Members opposite will realise that the contracts to which I refer were negotiated when they were in office. There was no provision in those contracts for additional funding for these services. In fact, the entire initiative of deinstitutionalisation was based on the realisation of asset sales. The plan was to sell the real estate and use the money to create services. That quite simply is a joke - indeed, it is a sick joke that has had a profound impact on the children and young people in the system. The result has seen the loss from the system, under the previous Government, of more than 100 beds; they just disappeared. That is the record of the previous Government.
It is difficult to conceive of a plan which could have wreaked more havoc on the future of vulnerable children and young people. A recent report by Deakin University stated that the speed of the deinstitutionalisation process meant that the agencies were neither equipped nor mentally ready for implementation. The report further stated that this was a particularly risky approach which had detrimental effects on some of the young people. However, it needs to be said that despite these inauspicious beginnings under the previous Government a range of positive outcomes has been achieved by and for young people. The Department of Community Services and the services have been meeting to discuss costs and contractual arrangements prior to the commencement of individual service negotiations.
The initial contracts were funded as residential services, and most were funded at a cost of $398,000 per annum to accommodate six young people. The non-government services are saying that this level of funding is inadequate and that the recontracted figure should be $475,000 per annum. This is the equivalent of an increase from $66,000 to $79,000 to care for one young person for a full year. A total of $6.2 million is available for these services to provide placements for 90 young people. This is equivalent to $69,000 per young person. I acknowledge that these young people can be very difficult because of their challenging behaviours. However, this is more money than many struggling families in New South Wales see in a whole year to support the entire family. It is my view that this represents an appropriate level of funding to support
and accommodate a young person with high support needs. This funding represents just one part of a substitute care system. Funding must go to supporting children and not into bricks and mortar. We need more individual models of care based on each child’s needs.
This approach is strongly supported by the Deakin University report. The department has provided the agencies with three alternative funding arrangements which are designed to ensure that the funding supports the development of a range of services to meet the individual needs of these young people. The services advised at a further meeting on 17 October that the funding level for each young person is not adequate. The department’s position is clear. There is $6.2 million available to support 90 young people each year, and this level of funding is sufficient to provide a high quality service. The department requested each service to indicate whether it wished to begin individual negotiations for future service provision. Three services - the Leader of the Opposition should listen to this - have expressed their willingness to discuss future service delivery within the funding allocation.
Given the refusal by some services to renew contracts, the department has been given no choice but to seek expressions of interest from various agencies to provide care and support to young people with intensive support needs. An advertisement will be placed in the press on Saturday, 22 November. I give an undertaking to the House that whatever the outcome of this matter the young people are our priority. The department will ensure that the needs of children and young people come first and that their care is maintained. The intensive services component of the substitute care service continuum must be balanced against priorities for the needs of children and young people in care. This Government has shown its commitment to improving services for young people by substantial budget increases over the past two years. In 1997-98 an additional $4 million was provided to the substitute care system, with this amount increasing to $8 million dollars annually in 1998-99.
OLYMPIC CONSTRUCTION SITE SAFETY STANDARDS
The Hon. D. J. GAY: Does the Minister for Industrial Relations support his WorkCover inspectors at the Homebush Olympic site and their apparent overzealous actions in fining subcontractors or their employees working on the site when they do not have their hard protective hats on, even if they have just left their vehicles?
The Hon. J. W. SHAW: I generally support WorkCover inspectors enforcing the most rigorous safety standards at the Olympic site or any other building site. I have no reason to question their actions or to regard their actions as overzealous. If there is a complaint of someone overstepping the line, that will be looked at, but, as I am at present advised, I believe that they are right to be utterly vigilant in protecting safety standards. After all, the death rate of workers in the construction industry is far too high.
The Hon. J. P. Hannaford: We have got to use good example to drive it.
The Hon. J. W. SHAW: We have to use good example and we have to qualitatively lift standards of safety in that industry. I am not directing my remarks only at management, which has a special responsibility to maintain a safe working environment; individual workers have to be exhorted to maintain proper standards. If it is a reasonable requirement, as I believe it is, to wear hard hats on a construction site, that requirement should be enforced. Years ago there were noise problems in some industries and workers were not required to place protective devices in their ears. Employees often did not want to wear those devices; hence they suffered significant hearing impairment problems. As I go around industries, factories and timber mills I am seeing management increasingly enforcing the use of those protective devices.
The Hon. J. P. Hannaford: Management has to set the example.
The Hon. J. W. SHAW: Management has to set the example. It is not good enough for management simply to lay down a regime; it has to enforce it and make sure that individual employees do the right thing. If the honourable member wants to raise a specific example of concern about some inappropriate action on a particular occasion, I will look at it, but I believe that we ought to enforce the standards. If safety laws are being breached, regrettably there must be prosecutions.
The Hon. J. KALDIS: Will the Minister for Community Services, Minister for Aged Services, and Minister for Disability Services advise the House of the results of the hotline conducted last month by the New South Wales Council of Social Service?
The Hon. R. D. DYER: The Howard Government’s record in child care is nothing short of
appalling. When I was in opposition I promised that, within weeks of coming to office, I would sign the -
The Hon. Dr B. P. V. Pezzutti: On a point of order. The Minister is deliberately anticipating debate on a matter before the House - the motion of the Hon. Jan Burnswoods. He knows that he is anticipating debate.
The Hon. R. D. DYER: On the point of order. My answer, which is in response to a particular question, relates to a hotline recently run by the New South Wales Council of Social Service.
The PRESIDENT: Order! The Hon. Dr B. P. V. Pezzutti might repeat his point of order.
The Hon. Dr B. P. V. Pezzutti: The Minister began his answer using the precise terms referred to in the notice of motion of the Hon. Jan Burnswoods and, to that extent, he is anticipating debate; and he knows it.
The PRESIDENT: Order! Is the member referring to notice of motion No. 4?
The Hon. Dr B. P. V. Pezzutti: Yes.
The Hon. R. D. DYER: Further to the point of order. I did not use the words in question. I commenced my remarks by referring to a promise that I made in opposition.
The PRESIDENT: Order! Although at this stage no point of order is involved, I entreat the Minister not to refer to the motion standing in the name of the Hon. Jan Burnswoods. The question is in order; it is a matter of whether the Minister’s answer is in order.
The Hon. R. D. DYER: I was saying that when I was shadow minister I made a promise that on achieving office I would, within weeks, sign the expanded national child-care strategy with the Federal Government, which I did. As long as the Keating Government held office, it delivered on its promises. However, when the Howard Government came to office, it saw fit to tear up the agreement with the New South Wales Government. The other grievance I have with the Howard Government is that in its last two budgets -
The PRESIDENT: Order! I am aware that former Presidents have ruled that Ministers may answer questions as they please. However, in doing so Ministers are constrained by the standing orders and the rules of the House. I direct the Minister to relate his response to the question asked lest he, in referring to the notice of motion of the Hon. Jan Burnswoods, encroaches on the rules as they relate to anticipating debate.
The Hon. R. D. DYER: It is well known that a hotline was run by the New South Wales Council of Social Service.
The Hon. J. F. Ryan: Who paid for it?
The Hon. R. D. DYER: I was approached by the Council of Social Service of New South Wales to fund the hotline, and I was pleased to do so. The research has borne out the anecdotal evidence, which was apparent to any reasonable person, that the Howard Government’s cuts were hurting ordinary families. In addition, I commissioned the families at work group to run a series of parent focus groups about the Howard Government’s cuts. The results of those surveys are devastating, and they confirm my concerns about the effect of the Howard Government’s cuts to child-care funding.
The Hon. J. F. Ryan: On a point of order. Mr President, the Minister is flouting your ruling by anticipating the debate. It is clear that he is going to use three pieces of evidence which I have no doubt he will use again in the debate on the Howard Government’s policy on child care. The answer relates to the Government’s view about child care and costs. It has everything to do with the motion that will be put before the House in a short time, and has nothing to do with the question.
The Hon. R. D. DYER: On the point of order. I am dealing with the question as it relates to the hotline run by the Council of Social Service, and I am giving the results of the collation of information received from those who phoned the hotline. I am not seeking to deal with the matter in general terms, having regard to your earlier ruling.
The PRESIDENT: Order! The Minister is referring in general terms to Federal Government cutbacks, the subject of the notice of motion of the Hon. Jan Burnswoods. I entreat the Minister to restrict his comments to the question, which relates specifically to the hotline.
The Hon. R. D. DYER: The phone lines ran hot from the time the hotline commenced, at midday on 28 October, until 7.00 p.m. A total of 430 people phoned the hotline. The results show that 91 per cent of callers now pay more for child care - up to $2,000 a year more in some cases; 40 per cent have had to alter their work arrangements; 64 per cent now use family or friends; 13 have quit their jobs
because it is uneconomical for them to work, as they would pay more in child-care fees than they would earn; and 17 per cent said they will not have any more children because they cannot afford to. It is worrying to note that 58 per cent of callers have noticed a drop in quality at their child-care centres.
The conclusion is clear: women are being forced out of paid work, and the quality of care that their children receive is dropping. The families at work parent focus groups confirmed the results of the hotline. One mother spoke of losing her job because it was not financially beneficial for her to take up full-time employment due to the high cost of child-care fees. Families living in the Blue Mountains area spoke about having to quit their jobs, give up study, and forgo promotion at work. Parents who live outside the major job centres cannot cut hours of care back to contain their costs as they travel long distances to work.
The Hon. D. J. Gay: Outside Australia, under Keating.
The Hon. R. D. DYER: The Blue Mountains is not outside New South Wales. The Hon. D. J. Gay does not know what he is talking about. Even a bushwhacker like the Hon. D. J. Gay should be aware that people commute to Sydney daily from the Blue Mountains. Parents have said that their family’s standard of living has dropped, because that is the only way they can keep their children in care. The cost cutting even extends to buying cheaper, poor-quality food. Some families have had to seek emergency assistance from charities for the first time. One parent from Orange said he can envisage that the Federal Government will one day make parents pay thousands of dollars in advance for a child-care place, as it is currently doing with nursing home care. Parents from Orange said they saw these Federal changes to child care as anti-community and destructive of the quality of their children’s care.
The Hon. J. F. Ryan: Mr President, he is talking about the Federal Government again.
The Hon. R. D. DYER: I am telling the House what those who rang the hotline said. Across western Sydney families have followed one of two paths: they either do less or no paid work, or they take on second jobs to cover the costs of child care. Women bear the brunt of this crisis. The first person who ought to defend women is the shadow minister for women, the Hon. Patricia Forsythe - policy-free Pat. But what does she say about women; what has she said about women in the last 24 hours, the last seven days, or the last month, for that matter? Nothing. All she can do is deal with casework in the Department of Community Services. One caller to the hotline summed it up when she said, "I hope that John Howard comes back as a woman."
WHOOPING COUGH IMMUNISATION
The Hon. Dr B. P. V. PEZZUTTI: I address my question without notice to the Minister for Community Services, representing the Minister for Health. In view of the 2,438 cases of whooping cough so far this year, will the Minister provide a distribution of whooping cough notifications by age, and does he recommend boosters of whooping cough immunisation for adults?
The Hon. R. D. DYER: Media reports regarding the apparently increasing incidence of whooping cough in New South Wales are a matter of concern. The honourable member would not expect me to have precise statistics available as to the distribution of the cases in question in response to a question without notice. However, I shall be delighted to refer his question to my colleague the Minister for Health and obtain a considered reply for him.
CONSTRUCTION INDUSTRY SAFETY
The Hon. B. H. VAUGHAN: I direct my question without notice to the Attorney General, and Minister for Industrial Relations. Bearing in mind the acceleration of work in the construction industry in the metropolitan area, and in particular the central business district, what is the Government doing to ensure that new workers are made aware of safe working practices?
The Hon. J. W. SHAW: The building industry is picking up; indeed, it is moving towards boom conditions, in particular in the central business district. That has resulted in an influx of new people into the labour force in the construction industry. Consequently, industry representatives have raised their concerns with the WorkCover Authority about the quality and consistency of induction training being conducted within the industry. I believe WorkCover has considered those concerns and acted on them. Occupational health and safety training for young, inexperienced construction workers and for workers returning to the industry has been a key element in WorkCover’s building and construction strategy.
WorkCover has drafted a proposed regulation and code of practice of occupational health and safety induction training for construction, following extensive consultation with industry. Those proposals involve an agreed industry-developed
approach to ensuring that all workers on site follow a safe system of work. They were reviewed and endorsed by the WorkCover construction industry consultative committee, a principal source of advice to WorkCover on construction issues, at its meeting on 6 November this year.
The draft provisions are to be included in the regulations of the construction safety Act. They set out the areas to be covered by occupational health and safety training, the obligations of principal contractors and of contractors to provide up-to-date training, plus the required qualifications of those conducting and developing the courses. These conditions replace the need for workers to continually undertake different induction courses of varying quality as they move from job-to-job. The industry requested that the provisions relating to mandatory training qualifications not commence until September 1998, to allow the industry a substantial transition period. Individual industry representatives have welcomed this induction training initiative as standardising quality and consistency in occupational health and safety training across workplaces.
Mr Ferguson, secretary of the Construction, Forestry, Mining and Energy Union’s construction division in New South Wales, said that his union sees the requirement of clear and specific regulations and guidelines such as the occupational health and safety induction regulation and the code of practice as a positive and pro-active preventive measure. I understand that Mr Alan Garner, manager of occupational health and safety for the Master Builders Association of New South Wales, has also made supportive remarks. He said that although it is detailed it has enough flexibility to allow all employers, regardless of the type of construction they carry out or the size of their businesses, to provide quality induction training. So both union and employer bodies see an improvement in occupational health and safety performance within the industry as a result of this initiative. It is another example of the Government’s consultative approach to industry reform. It balances WorkCover’s regulatory role with the obligations of industry to ensure that all New South Wales construction workers are protected by a safe system of work.
ORMOND AND MINALI YOUTH CENTRE CLOSURES
The Hon. J. F. RYAN: My question is directed to the Minister for Community Services. In light of his decision to close the Ormond and Minali youth centres, has he had discussions with non-government welfare agencies about the long-term placement of the children in those centres? If so, what has been the result of these discussions?
The Hon. R. D. DYER: I took a decision for good and well understood reasons to close both the Ormond and Minali institutions.
The Hon. Dr B. P. V. Pezzutti: Have they closed yet?
The Hon. R. D. DYER: They will close at such time as there are no longer any children receiving services within them. Ormond and Minali are congregate care centres. They are being closed to provide smaller community-based or family setting accommodation for children who are in need of State care. Worldwide developments in substitute care support the move away from institutional settings for young people who, I would remind the House, have done nothing wrong - they have not offended against the criminal law - but are in need of State care. The redesign and relocation of Ormond and Minali are occurring in a staged manner with both institutions to be closed during 1998. However, current services will not close before new service arrangements are in place to better meet the individual needs of these young people.
The Hon. Dr B. P. V. Pezzutti: When will that be - 2005?
The Hon. R. D. DYER: As usual, the Hon. Dr B. P. V. Pezzutti has a perception problem. If he had been even half listening he would have heard me say that both institutions will be closed in 1998. Even he should know that is next year. Issues such as education and health services, as well as accommodation needs, have to be considered. I am advised that because of the closure of the Banksia unit in late August, the number of young people in care at Ormond has decreased significantly from 15. The proposal is to place these young people in foster care. Plans to be developed by the end of the year include moving one house off site to act as transition accommodation for two young people at a time. I am also advised that 20 young people are now in care at Minali. It is proposed to place these young people in foster care or with their natural parents.
As at Ormond, individual plans are being developed at Minali for the young people to ensure they are given the most appropriate placements possible. The department will continue to provide at least the same number of placements to replace the beds at Ormond and Minali. Once again I call on the author of the anonymous letter alleging management
malpractices at Ormond to identify himself or herself to assist in clarifying these allegations. No such person has come forward to the Commissioner for Community Services, Mr Roger West. In contrast to these unsigned and unsubstantiated allegations, I have received several indications of praise and support for the manager at Ormond and for this Government’s reform process for the institution, including letters from the Community Services Commissioner, Ormond’s community visitor and the principal of Ormond school.
These positive statements also include an award to the manager of Ormond from the State Network of Young People in Care, commonly known as SNYPIC. Clear support for the present management system at Ormond has been shown by these people who are willing to identify themselves and, importantly, who are in a position to make informed and reasoned comments on congregate care facilities.
INTEGRATED TRAM LINK TICKETS
The Hon. ELISABETH KIRKBY: My question without notice is directed to the Treasurer, representing the Minister for Transport. Has the Government introduced an integrated tram link ticket that allows passengers to use the one ticket on both CityRail trains and Sydney light rail trams? Should such a ticket already be on sale at railway stations? Is it a fact that station staff have been instructed by their union not to sell the tickets because CityRail employees do not get free travel on trams operated by the Sydney Light Rail Company? If so, will the Minister ensure that the matter is sorted out as soon as possible so that passengers will not be subjected to the inconvenience of purchasing two tickets for a single journey?
The Hon. M. R. EGAN: I will refer the honourable member’s question to my colleague the Minister for Transport.
In view of the time, if honourable members have further questions, I suggest they put them on notice.
GUNNEDAH SHIRE ABATTOIR
The Hon. M. R. EGAN: On 14 October the Hon. D. F. Moppett asked me a question without notice about Gunnedah Shire Abattoir. I now supply the following answer:
Following news of the recent temporary closure of the abattoir at Gunnedah, my Department of State and Regional Development contacted Edmonds Meat Exports which owns and operates the abattoir, to ascertain the reasons for its closure and the expected date of re-opening.
The company advised that its decision on 14 October to temporarily shut down the Gunnedah facility was an unfortunate but necessary response to high beef cattle prices. It is not uncommon for seasonal fluctuations in the meat industry to cause such temporary plant shut downs. The company’s decision was taken in full consultation with the union and employees.
The company was confident that the shutdown would be temporary, and that it would be in a position to re-open early in November.
The abattoir did, in fact, re-open on 4 November, and was operating close to its normal production level on 5 November.
Unfortunately the abattoir was again shut down on 17 November, for an undefined period.
The Mayor of Gunnedah, Mr Geoff Marshall has expressed confidence that Edmonds Meat Exports is there for the long haul. This view is consistent with an assessment prepared for the Government by Price Waterhouse last year, which found that the facility had good prospects of achieving long-term viability in private hands.
It is noteworthy that, since purchasing the abattoir from Gunnedah Shire Council in December 1996, Edmonds Meat Exports had increased staff levels from around 200 to around 370.
Last month over $1 million was spent upgrading and refurbishing the abattoir.
In addition, Edmonds Meat Exports have recently spent many thousands of dollars on staff training.
The most recent decision to close the Meat Processing Plant is largely due to the downturn in demand in some key Asian export markets.
Korea in particular have enormous stockpiles of meat and are not currently purchasing.
It is worth highlighting that one aspect adversely impacting on the competitiveness of Gunnedah and other export abattoirs is that they are burdened with high AQIS (Australian Quarantine and Inspection Service) inspection fees, imposed by the Federal Government, whereas abattoirs in the USA, which are major competitors of Australian export abattoirs, pay no inspection fees when operating under normal conditions. I and my colleague, Richard Amery, Minister for Agriculture, have already made representations to the Federal Government on this issue, and will continue to press for greater efficiencies in the delivery of AQIS services.
With regard to the question of the Government’s financial exposure to Gunnedah abattoir, Edmonds Meat Exports purchased the abattoir from Gunnedah Shire Council in December 1996 as a straight commercial transaction. After some refurbishment the abattoir was re-opened by the new owner in February 1997. The NSW Government had provided payroll tax relief (valued at approximately $300,000) to Council to enable it to continue to operate the abattoir as a going concern while it sought to sell it. However, no State
Government funding was involved in the actual sale transaction, nor has any been provided subsequently to Edmonds Meat Exports. Therefore no State Government money is at risk in relation to the current operation.
I have directed my Department of State and Regional Development to continue to monitor the situation in respect of Gunnedah abattoir, and to work with Edmonds Meat Exports as necessary, to help address the reasons for the current closure, and to further improve its competitiveness over the medium to long term.
CARCINOGENIC HOSPITAL FOOD
The Hon. R. D. DYER: On 14 October the Hon. R. S. L. Jones asked me a question about hospital food. The Minister for Health has supplied the following answer:
The Department of Health advises that research shows that most hospitals in NSW offer a good variety of nutritious foods. This is supported by the common practices of menu cycling and the provision of menu choices.
The research also showed that there has been a strong trend by NSW Hospitals in recent years to develop menus which are more in line with the "Dietary Guidelines for Australians" endorsed by the National Health and Medical Research Council. The "Guidelines" represent the official national advice for selection of a diet which will reduce the risk of diet-related diseases including some cancers. The priority recommendation is that a prudent diet to promote good health should be selected from a variety of nutritious foods including fruits, vegetables, breads and cereals, meat and meat alternatives (such as chicken, eggs and legumes) and milk products.
In December 1996 the Government launched a four year nutrition plan, Strategic Directions for Food and Nutrition 1995-2000. This was accompanied by a comprehensive hospital nutrition strategy. Implementation of the strategy is underway and includes development of a hospital menu assessment tool which enables food service managers to identify affordable improvements to the nutritional quality of the patient menu.
Questions without notice concluded.
BUSINESS OF THE HOUSE
Suspension of Standing and Sessional Orders
Reverend the Hon. F. J. NILE [5.07 p.m.]: According to contingent notice, I move:
That standing and sessional orders be suspended to allow the moving of a motion forthwith that general business notice of motion No. 46 relating to the membership of the Standing Committee on Parliamentary Privilege and Ethics be called on forthwith.
The House divided.
Mrs Arena Mrs Nile
Mr Bull Rev. Nile
Mrs Chadwick Dr Pezzutti
Mrs Forsythe Mr Ryan
Mr Gallacher Mr Samios
Miss Gardiner Mrs Sham-Ho
Mr Gay Mr Rowland Smith
Mr Hannaford Tellers,
Mr Kersten Mr Jobling
Mr Lynn Mr Moppett
Dr Burgmann Mr Obeid
Ms Burnswoods Mr Primrose
Mr Cohen Ms Saffin
Mr Corbett Mr Shaw
Mr Dyer Mrs Symonds
Mr Egan Mr Tingle
Mr Johnson Mr Vaughan
Mr Kelly Tellers,
Ms Kirkby Mrs Isaksen
Mr Macdonald Mr Manson
The PRESIDENT: Order! The vote being equal, the matter falls to me to cast my vote. This is essentially a procedural motion and it is within the province of the House at any subsequent time to alter its decision. Therefore, in accordance with the principles laid down in Erskine May I declare the question to be resolved in the negative.
LUNA PARK SITE AMENDMENT BILL
Consideration resumed from an earlier hour.
The Hon. R. S. L. JONES [5.16 p.m.]: Before question time I said that this is a momentous occasion. It is a clearly defined policy of the National Party to defend not only indigenous trees but also non-indigenous trees, especially those that are heritage listed. This interesting debate represents a turning point. I am somewhat embarrassed that I am clearly not supporting the amendment of the Hon. D. F. Moppett to save the coral trees. However, I intend to move an amendment to his
amendment to keep the provision to save only fig trees.
The Hon. D. F. Moppett: What sort of fig trees?
The Hon. R. S. L. JONES: I believe they are Moreton Bay Figs, but they could also be Port Jackson Figs.
The Hon. D. F. Moppett: So they are exotic too?
The Hon. R. S. L. JONES: No, they are indigenous but not necessarily indigenous to that particular spot. They are certainly Australian trees - it depends whether people want local providence trees. I am not "speciesist" about this at all, naturally. I would hate to be accused of that and of favouring only local, indigenous trees and not exotics. Coral trees are indeed exotic and I like them in their place. These coral trees are on their last roots; they will not survive for too long. I do not wish to hasten their demise but they will die soon in any case. If the Opposition’s amendment as it stands is supported, that would prohibit any further development of the site, which would be meaningful and make it economically unviable. It is with deep regret that I am unable to support the amendment of the Hon. D. F. Moppett. I move:
That the amendment be amended by inserting after the word "listed" the word "fig".
The Hon. D. F. Moppett: I do not give a fig for your argument.
The Hon. R. S. L. JONES: I care a fig for fig trees for a number of reasons, not the least being that they are a food source for flying foxes - one of my favourite indigenous creatures. Flying foxes are blamed for all sorts of mishaps, particularly eating stone fruit. Recently a heavy hailstorm wiped out a number of crops which were not netted. Stone fruit farmers should be netting their crops, not just against flying foxes but also against hailstones and birds. I hope they will consider it very seriously this year because there are problems with the shooting of flying foxes, which is being phased out. I ask the Hon. D. F. Moppett to ask growers in his constituency to net their crops to enable the flying foxes to have a better chance of surviving. They will have an even better chance now that these fig trees are to be saved, because they do feed off them.
The Hon. D. F. Moppett: I do not think the few fig trees there will save them.
The Hon. R. S. L. JONES: They will keep one or two families of flying foxes alive. Families of flying foxes are important as well. I hope the Committee will support my amendment so that at least we will save the heritage-listed fig trees if not the coral trees.
The Hon. I. COHEN [5.21 p.m.]: I support the amendment moved by the Hon. R. S. L. Jones. From the Green perspective it is important to save the fig trees. It will enable viable development and the continuation and enhancement of Luna Park. As I understand it, the coral trees are under a heritage order. They are extremely old, probably nearing the end of their lives. Exotic trees should not be afforded the same degree of protection as is afforded native vegetation, which is in its right place and which provides a complete habitat and a food source for native animals.
The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [5.22 p.m.]: The Government believes that the Opposition’s amendment is unnecessary and it opposes it. However, the Government will accept the amendment to the amendment moved by the Hon. R. S. L. Jones on the basis that I will explain shortly. Any development on the Luna Park site must comply with the well-established regime of planning laws and instruments and heritage protection mechanisms. This bill, in particular new sections 6B and 6C, is not about overriding or altering planning laws; those laws are expressly preserved under the provisions of the bill. New section 6C merely extends the authorised uses for the cliff top. It is about overcoming the restrictions currently imposed by the dedication. There are a number of heritage and planning safeguards which make the amendment of the Hon. D. F. Moppett unnecessary. Firstly, the fig and coral trees located on the cliff-top area are listed as heritage items on the register of the National Trust and are therefore to be protected and maintained. This listing is of course in addition to the other items on the register, such as Coney Island, Crystal Palace, the face entrance and the Alfred Street gate, all of which are icons of Sydney.
In addition, the North Sydney Council’s local environmental plan 1989 identified the entire Luna Park site as a heritage item, as well as individual items on the site. The fig and coral trees on the cliff top are among the heritage items on site. Finally, the entire Luna Park precinct was registered on the National Estate on 24 June 1997. It comprises the whole of Luna Park including Coney Island, Crystal Palace, the entrance face and towers and the fig and coral trees. Because of the protection afforded to the
trees, any proposed activity on the cliff top and on the Luna Park site would have to comply with the requirements for their protection as heritage items. I note also that it is unprecedented for there to be a suggestion to give legislative protection to individual trees. For example, the magnificent fig trees which line the paths in Hyde Park are protected in precisely the same way as the fig and coral trees at Luna Park: they are listed as heritage items in the central Sydney local environmental plan 1992 as conservation and heritage items.
Members may be interested to know that the whole of the Royal Botanic Gardens is listed as a heritage item, again in the central Sydney local environmental plan. Nowhere in the Acts of this Parliament which establish the Royal Botanic Gardens are specific trees or other items given individual protection. That is because the current planning and heritage laws are considered to be the best way to protect heritage items. The Government wishes any development on the Luna Park site at the cliff area to be in keeping with the heritage values of the old amusement park. Any activity on the site would be by a private operator and would be subject to a planning regime.
In the Government’s view the planning and heritage laws mean that the status given to items within the Luna Park site provides sufficient protection. However, as I have said, the Government could accept the amendment to the substantive amendment, moved by the Hon. R. S. L. Jones. As I have argued, it is strictly unnecessary as already comprehensive protection is available, under State planning and heritage laws, for the trees at the site. But in order to ensure the future of Luna Park for the people of Sydney and visitors we are prepared to support the amendment of the Hon. R. S. L. Jones. I must stress that the Government’s firm understanding in supporting the amendment is that it will not restrict the trust in meeting its legal responsibilities in respect of public safety on the Luna Park site. That is a very important and express rider to the Government’s support for the amendment.
The Hon. D. F. MOPPETT [5.25 p.m.]: I am a little disappointed with the Minister’s irrational response to the matters being debated in Committee. I have read the arguments which he put forward - perhaps to be generous about it, on behalf of a Minister in another place - saying that both amendments were unnecessary because the trees are protected under existing heritage and planning instruments. I acknowledged that in my speech on the second reading. But I went on to say that the Opposition wanted to add the extra protection in terms compatible with the drafting of the legislation.
The Government proposes to support the amendment to my amendment moved by the Hon. R. S. L. Jones. The amendment of the Hon. R. S. L. Jones refers only to fig trees. Yet the Minister acknowledged that the heritage instrument upon which his Government relies and which it believes is adequate and sufficient includes the coral trees. So some members are trying to pick winners and favouring particular species of trees and species that vote in this Chamber. The Government has shown some partiality in the framing of the amendment for reasons other than logic and for reasons other than the heritage values of the trees. The health of the coral trees is a red herring. That is a bad analogy.
The Hon. Jan Burnswoods: A red flowering tree. An Illawarra flame tree perhaps.
The Hon. D. F. MOPPETT: Yes, an Illawarra flame tree being dragged across the path. The curator of the Domain has sent members notes advising us not to worry about the temporary leaf drop of the figs in the Domain visible from the dining room. But year after year the same leaf drop has taken place.
The Hon. M. R. Egan: They are pretty healthy looking trees.
The Hon. D. F. MOPPETT: Have another look at them. There is a real and continuing problem.
The Hon. M. R. Egan: They look pretty healthy today.
The Hon. D. F. MOPPETT: Some are, and quite a few of the larger ones are not.
The Hon. M. R. Egan: Have a look at the ones just out the back.
The Hon. D. F. MOPPETT: They are exactly the ones I am talking about. Have another look at them. I draw to the attention of the Minister and other members who are particularly interested in the future of the species that trees in the Rose Bay area, where there are some magnificent fig trees, are also suffering the same leaf drop and decline. Honourable members should look at these matters of heritage not just in relation to Luna Park. They should not try to pick winners. The health of particular trees can be a transient thing. The Committee should support my amendment unamended. I am sure that the Hon. R. S. L. Jones, having listened to me, will agree with that proposition.
Amendment of amendment agreed to.
Amendment as amended agreed to.
Schedule as amended agreed to.
Bill reported from Committee with an amendment and passed through remaining stages.
HISTORIC HOUSES AMENDMENT BILL
The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [5.32 p.m.]: I move:
That this bill be now read a second time.
The purpose of this bill is to amend the Historic Houses Act 1980 to reflect more accurately the role of the Trust in managing and maintaining not only houses of historic importance, but other buildings, structures and sites, as well as to provide measures to streamline procedures. The Historic Houses Trust currently manages thirteen properties, including house museums such as Elizabeth Farm and Vaucluse House, two museums of social history - Hyde Park Barracks and the Justice and Police Museum - and two sites of significance to the administration of this State and the country - the Museum of Sydney on the site of First Government House and Government House. In its 17-year existence the trust has acquired an international standing in the conservation and interpretation of buildings and places of historic importance, and is the recipient of numerous heritage and tourism awards. I seek leave to have the remainder of my second reading speech incorporated in Hansard.
It has successfully combined research and scholarship with innovation and popular appeal.
The trust’s philosophy is to maintain a range of properties representative of different historical periods, architectural styles and social associations. Not just house museums, where we see a period recreated, but museums where particular themes and issues are the focus.
The 1980 Act uses terminology which is too narrow and limiting for the needs of the trust.
None of the trust’s museums, none of the cultural institutions within the arts portfolio for that matter, are stuffy buildings where objects sit in glass cases, where things are merely labelled for the benefit of research alone.
They are living places which emphasise community involvement, where visitors enjoy and learn through activities, seminars and workshops, and theatre and dance performances.
Exhibitions may be seen at more than one venue, publications are widely read and appreciated, and professional advice is made available.
The trust’s approach to the presentation of its properties means that visits are entertaining and may involve a range of educational activities.
Students and teachers come away knowing more about the people who lived and worked at these places and understanding the significance of the buildings and the furniture and objects which they contain.
When the Historic Houses Act was originally drafted the trust was responsible for only two properties. Since then it has met the manifold challenges presented to it, including its most recent project, management of Government House in an exemplary fashion.
Proposed section 7 substitutes new principal objects for the trust to reflect its role in managing, maintaining and conserving the historic buildings or places and other property of the trust. It also recognises that the trust has responsibility not only for historic houses and house museums, but also for certain other buildings, sites and museums of historical significance.
The Act currently requires Ministerial approval for each alteration or improvement to trust properties. This has become a cumbersome arrangement.
Proposed section 10 of the Act will require that the trust develop conservation plans for each property, to be approved by the Minister for the Arts. The proposed amendment will allow alterations or improvements, which are consistent with the approved plans. By obtaining approval for a comprehensive conservation plan for the entire property, which includes details of how repairs and reconstruction are to be appropriately carried out, the work can be dealt with as the need arises.
The Historic Houses Trust, consistent with world-wide museum practice, will from time to time be required to dispose of objects in its collection which are no longer suitable or appropriate to its collection. The current Act requires that the Governor must approve the disposal of any of the trust’s property.
Proposed amendments to section 11 will allow the disposal of items such as furniture and household objects, following the Minister’s approval, so that the trust’s collection remains appropriate to its responsibilities.
If, for whatever reason, the trust wishes to dispose of any of its real property, that is any of the various properties that it manages, as distinct from the items in its collections of objects, it will continue to be required to obtain the approval of the Governor.
At present the legislation allows for the Minister administering the Public Works Act 1912 - the Minister for Public Works and Services - and the Minister administering the Heritage Act 1977 - the Minister for Urban Affairs and Planning - to each nominate a trustee. This requirement has become outmoded.
When the trust was established in 1980 the input of these administrations was crucial. The trust has developed expertise and an international reputation in specialist areas. It is adequately equipped to assume full responsibility for its operations without the need for formal representation on its governing board by other Ministerial portfolios.
The Department of Public Works and Services, the Heritage Council and the Heritage Office, all play an important role in advising and guiding a wide range of Government agencies without formal representation on particular governing bodies. The usual consultative channels will continue to be available to the Historic Houses Trust, as is available to any Government agencies. These two trustee positions are no longer required to be reserved for public servants.
Proposed section 6(1) provides that the responsible Minister nominate all nine trustees but that at least one person appointed have a background in history, and one have a background in architecture. This will allow for representation from members of the wider community with professional expertise, and is consistent with other legislation in the arts portfolio which allows for particular, specialist representation.
As affirmed in the other place, this reform of the composition of the board of the trust has the full support of my colleagues the Minister for Urban Affairs and Planning and the Minister for Public Works and Services.
The amendments before us will effect necessary improvements to the Historic Houses Trust’s enabling legislation.
A revised Act will provide the trust with the necessary foundations to build upon its fine record in the management of some of the State’s most significant treasures.
I commend the bill to the House.
The Hon. J. M. SAMIOS [5.33 p.m.]: The Opposition supports the Historic Houses Amendment Bill subject to amendments that I foreshadow the Opposition will move. As has already been stated in the lower House, in essence this legislation was drafted and circulated by the coalition Government in 1994. Basically the bill is the coalition bill, save for amendments relating to the composition of the trustees contained in schedule 1, among other things. Schedule 1 concerns itself with the appointment by the Governor, on the nomination of the Minister, of nine trustees and provides that at least one trustee is to have a background in history and at least one trustee is to have a background in architecture. The Friends of the First Government House Site, who played an important role in relation to one of the houses or museums dealt with by this bill, were concerned that the provision that one trustee have a background in history was not sufficient and submitted that in fact there should be four trustees with that background.
The main thrust of the amending legislation that the Opposition is concerned with relates to Government House. The present legislation covers 10 well-known houses or museums under the jurisdiction of the Historic Houses Trust. Those properties are: Elizabeth Bay House, Government House, Hyde Park Barracks, the Justice and Police Museum, Susannah Place, Vaucluse House, the Museum of Sydney site, Elizabeth Farm at Granville, Meroogal at Nowra and Rose Seidler House at Wahroonga. Over the 16 years of its existence the trust has played an important role in looking after those 10 properties and two other properties for which it is responsible. The trust now seeks to put forward provisions that will enable it to facilitate its work by calling on the Minister, in this case the Minister for the Arts, to appropriately approve, in globo, as it were - that is, in relation to each particular property controlled by it - conservation plans for each of the properties for which the trust is responsible. This will avoid the trust having to concern itself with part amendments to a scheme, having to do a lot of paperwork and having to engage in involved dialogue with Ministers.
In essence, this proposal is designed to streamline the procedure of dealing with each of the flagships, as it were, under the control of the trust. Whereas before the properties under the control of the trust were regarded as museums, these days they are considered as cultural centres, playing a more important role in providing venues for workshops, seminars, and so on. This appropriate and sound legislation was formulated originally by the former coalition Government, save and except for the earlier amendment in the schedule. The Opposition amendments relate to the desire to entrench in legislation the name of the museum, which is now called the Museum of Sydney, on the site of first Government House. The Friends of First Government House are concerned that the reference to first Government House be entrenched and I am sure the community would see the value in that action.
Although the Museum of Sydney appeals to the community at large, it is important not to forget that the Museum of Sydney really has been spawned, as it were, from the site of first Government House and relates to the settlement of modern Australia by the British in 1788. It is part of our colonial history and should be acknowledged. I ask the Government to support the Opposition’s amendment which, if accepted, will result in that entrenchment. The other foreshadowed amendments relate to Government House. It is well known that the Government has a certain attitude to the role of the Governor, and the Opposition remains vigorously opposed to the Governor’s eviction from Government House. The Opposition’s approach to Government House was spelt out in a 10-point plan
that the Leader of the Opposition, Peter Collins, announced on 16 January. It hurts not to remember the 10 points. The first was to allow the Governor the right to return to Government House; second, to retain Government House as the Governor’s principal workplace and residence; third, to use Government House as the Government’s main ceremonial building.
The fourth of the 10 points was to resource the Governor as a full-time Governor; fifth, to guarantee public access and White House-style public powers; sixth, to evict any organisation that might take up tenancy between now and March 1999; seventh, to continue to fill the job of Governor from the State’s eminent citizens; eighth, to utilise the building during the Sydney 2000 Olympics and the centenary of our Federation in 2001; ninth, to retain the position of New South Wales Governor regardless of any changes to Australia’s Constitution; and tenth, if the nation were to become an independent republic, to invest the Governor with democratic status as a true representative of the people of New South Wales. Those 10 points were announced by the Leader of the Opposition and referred to also in the lower House by the shadow treasurer, Ron Phillips. They are important because they indicate the Opposition’s determination to ensure that Government House retains the role it has fulfilled for many years and that it not be diluted by attempts to have it used part time for other purposes. Though the Opposition supports the legislation, it will move amendments, as circulated.
The Hon. JAN BURNSWOODS [5.46 p.m.]: I have great pleasure in supporting the Historic Houses Amendment Bill. When the bill was first introduced, in September last year, the changes were then overdue, so I am pleased the legislation is finally being debated. The bill recognises the valuable but gradual change in the work of the Historic Houses Trust. Its work originally covered only houses, but has now been broadened to include a whole variety of other buildings and sites that need looking after and which are of value to the community, often being popular places to visit. However, many of them cannot correctly be described as houses and the changes to the legislation are designed to address that issue.
The Hon. J. M. Samios mentioned other important changes, one of which relates to the membership of the trust. Two positions will be freed from their former occupation by public servants and I welcome that. Nominations will be open to members of the public who can bring special skills and background to the trust. At least one person must have a background in history and another in architecture. That is appropriate, and as an historian I am delighted that historians are recognised as having an important role to play on this body. The newly formed History Council of New South Wales would have a strong claim for appointment to such a position because in recent years the work of New South Wales historians in recording urban history in particular has helped organisations such as the Historic Houses Trust and museums to better present their properties, to make more sense of historical records, to place them in their context and to develop places such as the Museum of Sydney. I am delighted with the changes in membership of the trust and would be pleased if someone from the History Council of New South Wales joined the Historic Houses Trust.
I refer to the amendments foreshadowed by the Opposition. I agree with what Bob Debus, the Minister Assisting the Minister for the Arts, said in the lower House: it is inappropriate to place such amendments in a general bill. The bill will amend a 1980 Act which has served us well. It is umbrella legislation. It would be inappropriate for the Opposition’s rather short-term and highly specific problems about public access to Government House to be inserted into this legislation. I would have thought that the Opposition would be wary of 10-point plans - the Prime Minister has not received much public support for his 10-point plan. I remind the Opposition that this 10-point plan was described as "the 10-point plan of our leader, Peter Collins" - that too is something slightly contingent of which the Opposition might be aware.
The Hon. ELISABETH KIRKBY [5.51 p.m.]: The Historic Houses Amendment Bill will amend the Historic Houses Act 1980 to more accurately reflect the role of the Historic Houses Trust in managing and maintaining its 12 properties and to more easily facilitate alterations and improvements to trust properties. At present the Act requires ministerial approval for every alteration or improvement. The trust currently manages 12 properties, including Elizabeth Farm, Vaucluse House, two museums of social history, Hyde Park Barracks, the Justice and Police Museum, the Museum of Sydney, two sites of significance to the State and the country, and Government House. When the original legislation was drafted the trust managed only two properties.
To an extent I agree with the comments of the Hon. Jan Burnswoods about the Opposition’s 10-point plan: the Liberals should have learnt their lesson about 10-point plans. However, the 10-point plan announced by Peter Collins, the Leader of the Opposition, on 16 January and only recently outlined
by the Deputy Leader of the Opposition in another place on 15 October has merit. The provisions of the 10-point plan include: first, to allow the Governor to return to Government House and, second, to retain the building as the Governor’s principal workplace and residence. I suggest that the Leader of the Government would also be happy if the Governor returned to Government House and used it as his principal place of work and residence. The Auditor General has estimated that the new arrangements are costing an additional $600,000 a year, money that could be spent on something else. When the Government decided to move the Governor out of Government House I do not think it intended that the cost to the State would increase. The $2 million saving promised by the Premier has not been realised - money which I suggest could be used for health and community services.
The fourth, fifth and sixth points of the 10-point plan are: to use the building as the Government’s main ceremonial building; to adequately resource the Governor as full-time Governor; and to guarantee public access and White House-style public tours. I do not think anyone would object to the last point. After all, if the White House and Buckingham Palace conduct public tours, why should Government House in Sydney not conduct public tours, regardless of whether the Governor is in residence? It would be possible for such tours to be arranged, just as they are arranged in similar institutions overseas. The plan continues: sixth, to evict any organisation that might take up tenancy between now and March 1999; seventh, to continue to fill the job of Governor from the State’s eminent citizens; and, eighth, to utilise the building during the Olympics in 2000 and the centenary of Federation in 2001. I do not think anyone could object to that. Many VIP visitors will attend those two events and important receptions and cocktail parties could be held at Government House. The plan continues: ninth, to retain the position of New South Wales Governor regardless of any changes to Australia’s Constitution; and, tenth, if the nation becomes an independent republic, to invest the Governor with democratic status as a true representative of the people of New South Wales.
The amendments foreshadowed in another place would prevent the Government from permitting the use of Government House for any purpose not directly connected with or incidental to the function it served prior to the eviction of the Governor by the Premier. Further, the amendments seek to affirm that Government House must be used as the Governor’s principal place of residence and for the performance of official, charitable and other public functions of the kind customarily performed by the Governor at Government House. The Australian Democrats were briefed on this legislation by the Ministry for the Arts. Mr Peter Watts, of the Historic Houses Trust, circulated a copy of a management plan prepared for the trust in relation to Government House and the figures on visitor numbers to Government House over an 18-month period to the end of September. It is asserted by the department that this plan, which has been circulated to crossbench members, attached to the brief and known as the "4.2 Agreed Framework for Use" covers all the concerns expressed in the 10-point plan. The Premier and the Minister approved the plan on 24 October.
The Premier and the Minister have the power to impose conditions on any alterations before consent is given under section 10 of the Historic Houses Act 1980. However, having read the Act, I cannot see how this would allow for the west wing to be developed to house appropriate arts organisations. It would appear that the Minister and the Premier have signed off on a plan that has an element not authorised by the Act - and I cannot find out whether the amendment in schedule 1 would authorise this use. Therefore, on my reading of the agreed framework, the assertion of the Government and the trust that it covers the 10-point plan appears to be untrue.
The trust maintains that there is an incompatibility between public access and the Governor occupying traditional quarters. As I said a few moments ago, I cannot see why the trust would believe that that is the case. The public is able to access the White House in Washington, regardless of whether the President is in residence. In fact, American citizens and tourists queue each morning to enjoy the tours offered by the American Government. People also queue at Buckingham Palace in London to take part in its tours. I cannot see how the opening of Government House would create a conflict between public access and the duties of the Governor.
The bill has four main objectives. The first is to more accurately reflect the role of the Historic Houses Trust in managing and maintaining not only houses of historical importance, but also various other buildings, structures and sites. These changes are in name only, so that the words "historic house" will be replaced with the words "historic building" or "historic place". The second object is to enable the trust to carry out alterations and improvements to historic buildings or places in accordance with conservation plans approved by the Minister. At present the consent of the Minister is required for all alterations and other improvements. This amendment
will enable the trust to prepare a conservation plan that will then be approved by the Minister, who will give the trust authorisation to carry out the alterations.
The third object is to enable the trust to sell or dispose of certain property, such as items in collections, again with the approval of the Minister. At present the approval of the Governor must be obtained to sell or otherwise dispose of any property required without being subject to a condition. The fourth object is to change the nomination procedures for trustees so that the Minister for the Arts now nominates all nine trustees. At present the Minister for Public Works and Services and the Minister for Urban Affairs and Planning nominate one trustee each. The amendment set out in schedule 1 provides that at least one trustee must have a background in history and at least one trustee must have a background in architecture. With just two of the nine trustees having such qualifications, the composition of the board will be weighed heavily in favour of people with no expert knowledge at all.
The bill contains other amendments of a consequential or minor nature. Perhaps it could be said that the amendments will update the Act and make it easier for the trust to administer. But it will be the responsibility of the Minister to ensure that the conservation plans, when presented, are carefully examined before they are agreed to as, once in place, the trust will have the authority to do all alterations in the plan. This could be a good thing, but it could also be a bad thing because everything will depend on the Minister. It seems that more and more legislation is giving Ministers total control over what happens in their departments, and I do not think that is a very good idea. The bill will centralise power in the hands of the Minister for the Arts, whereas previously the Governor and two others Ministers had input into the decision-making process.
I have been informed by an adviser from the Ministry of the Arts that the Opposition will seek to move an amendment in Committee to exclude reference to Government House from the bill. The amendment is probably in the form of an amendment drafted in October 1996 when attempts were made to embody the so-called 10-point plan. I shall obtain further advice about that from the Hon. J. M. Samios, who has carriage of the bill for the Opposition in this House. The History Council of New South Wales believes that the proposed amendment would be unwise political interference in the professional and curatorial responsibilities of the trust. Obviously the Government is opposed to the amendment; it will restrict the Government’s proposals as outlined in the conservation plan for Government House. When it was thought that the bill would be debated in this Chamber on 11 November I received a letter dated 6 November from the Friends of the First Government House Site (Inc.), which should be read onto the record. The letter is headed "An urgent appeal to all Opposition and Independent members of the Legislative Council" and stated:
We refer to the above Bill, which proposes to amend the original HISTORIC HOUSES ACT 1980, and also to promote de facto acceptance of its 1986 version, which was reprinted with several crucial amendments WHICH WERE NEVER DEBATED IN PARLIAMENT.
Such sweeping and watertight powers as are now proposed are detrimental to our national heritage. We fear as well for the future preservation of the colonial Vice-Regal heritage of Australia’s oldest State, i.e. that of the present Government House and the 1788 First Government House and its Site.
We wish to draw your attention to the following objections to the passing of the Bill now before the Legislative Council:
(a): The complete deletion of Section 19 in the 1986 version, which required the Historic Houses Trust to submit its books to the Auditor General for an annual independent examination of its accounts. NOT DEBATED IN PARLIAMENT.
I certainly do not believe that that section should be completely deleted. In fact, I believe that everything that is done with public money should be audited by the Auditor-General. The letter continued:
(b): The unwise 1986 amendment which required that only one of the nine members of the Board of Trustees need have any knowledge or experience of history and education. This is totally inadequate for a body which is entrusted with the presentation of our history and heritage. The Board should have at least four members with an historical background to ensure properly informed debate and decision making. NOT DEBATED IN PARLIAMENT.
The Government is now suggesting that there be two members with a historical background. The letter continued:
(c): Currently, the Minister for the Arts must consent before any alterations or additions are made to a historic house under the Trust’s control. The proposed amendment to Section 10 of the Bill is an attempt to eliminate the Minister’s direct involvement, merely requiring his or her assent to an overall conservation plan prepared by the Trust, which may include many other projects, e.g. the recent controversial use of (and future plans for) the present Government House, and the relentless downgrading of the historic First Government House Site.
(d): Of particular concern is the last clause of the proposed Bill, Schedule 1, Part 1, Item 3, (VALIDATION OF THINGS DONE BY THE TRUST)
"Anything done by the Trust before the commencement of this clause that would have been valid if this Act, as
amended by the HISTORIC HOUSES TRUST ACT 1996 had been in force when the thing was done, is validated."
Honourable members would be aware that the Australian Democrats cannot support retrospective legislation; they have never supported retrospective legislation - which has been a matter of contention many times in the Federal Senate. One cannot validate actions that were taken years ago, and I do not believe that it would be necessary to do so. The letter continued:
- which seeks to validate all that the Trust has done prior to the passing of the Bill, and is an attempt to justify several of the less than satisfactory - AND UNDEBATED - alterations to the original 1980 Act.
It is vitally necessary that the objections stated above should be thoroughly debated.
For that reason I read the letter onto the record. It will give the Leader of the Government the opportunity to debate them, and refute them if he wishes. He will certainly have that opportunity in reply. I have no objection to the first object of the bill, which is reasonable and which reflects the changing nature of the Historic Houses Trust portfolio. I have no objection to the changes outlined in items , , ,  to , ,  and  of schedule 1. The second object of the bill, which can be found in the amendment contained in schedule 1, is to enable the trust to carry out alterations to historic houses. The concern is that the power will rest solely with the Minister for the Arts. The Minister will, of course, take advice from the Historic Houses Trust, which will prepare the conservation plans for each building or site. As I said earlier, I do not believe that this power should rest solely with the Minister. The Governor is not in residence at present and it could be said that, as he is not living at Government House, there is a greater opportunity for public access. I do not see why the public should not have access to Government House - even if the Governor lives there.
A few moments ago the Hon. J. R. Johnson handed me a note containing valuable information concerning the opening of Buckingham Palace. As honourable members will recall an amount of $30 million was required to restore Windsor Palace after a disastrous fire. If tours were conducted through Government House, people going on that tour would pay for the privilege in exactly the same way as they pay when visiting other places of historic value. No-one expects such tours to be conducted free of charge. I am sure that the Treasurer would be happy if he obtained that extra revenue. It might help him to wipe out the $600,000 dollars that the changes to the Governor’s position have cost the Government. I do not agree with the present conservation plan. In fact, I doubt its legality in respect of the west wing being developed for appropriate arts organisations. If Government House is to be used primarily for public access and for hosting official functions, it is not at all appropriate that organisations that are not in some way connected to Government House should be allowed to take up either permanent or temporary residence in the building.
Many recitals are now being held in the main reception room at Government House. For that purpose, and to provide better acoustics, carpet and various articles of furniture have been removed from the area. It would not be proper to alter the historic museum-like concept of the building, which would inevitably happen if people were permitted to set up offices in the building. They would introduce computers, fax machines, photocopiers and modern office furniture, and this would detract from the historical nature of the building. We must also bear in mind potential difficulties associated with security, given the recent disturbing incident at Kirribilli House. No-one - certainly not the Prime Minister - believed that the Prime Minister’s official residence in Sydney could so easily be breached by protesters. I am sure security arrangements have improved since that event. The amendments referred to in items  and  of schedule 1 will allow the disposal of certain properties, such as items in collections not subject to conditions. That amendment seems sensible because the approval of the Minister is still required. I am assuming that the trust would advise the Minister on such matters. Items left to the trust that are of no historical significance or use should be sold or given to government museums.
I cannot fully support the fourth object of the bill. The amendments in schedule 1 will give to the Minister the sole power to nominate trustees, whereas at present the Minister for Urban Affairs and Planning and the Minister for Public Works are able to nominate trustees. Since the present Minister for the Arts is also the Premier there would be ample opportunity for him to discuss with the other relevant departments, if he chose to do so, the appropriate nominations for the position of trustee. The danger is that this could be yet another government board, stacked with the friends of the Australian Labor Party who have little interest in or knowledge of the preservation and importance of historic houses. I do not suggest that that happens only under Labor administrations; it could also happen under a coalition administration. Therefore, I cannot support the amendment that seeks to allow one Minister to appoint all trustees.
One trustee must have a background in history and another trustee must have a background in architecture, but those are minimum requirements. Naturally enough, the History Council of New South Wales supports the proposal to have a person with a history background on the trust. I suggest we also need people with other qualifications, certainly in the arts and architecture, who have a sympathetic knowledge of how to carry out necessary repairs without totally destroying the beauty and historical importance of buildings. Later members will be debating legislation that relates to the Conservatorium of Music. We all saw the appalling additions to the Greenway building in the 1950s.
Reverend the Hon. F. J. Nile: They are going to be demolished.
The Hon. ELISABETH KIRKBY: As Reverend the Hon. F. J. Nile said, they will be demolished. We do not want the same thing to happen to Government House. Experience has proved that many wrong decisions have been made. Opposition amendments seek to cement the notion that Government House is the Governor’s principal place of residence. It has been suggested to me that the effect of the amendments would be to prevent the use of Government House by other organisations. If it means that such organisations have to take up residence there, either permanently or temporarily, I will happily support the amendments. That would not prevent arts or musical organisations holding functions at Government House. If it did, it would be an improper prohibition. The 4.2 plan would not be greatly affected. The present Governor obviously has no intention to return to Government House, thus the traditional private quarters and offices could be shown, as they are, to the public. If a future Governor decided to reside in Government House, perhaps some alterations would have to be made.
The last two points of the 10-point plan, which cover the position of the Governor in the event of a republic, are in an entirely different new field. In fact, they may impinge on the republic debate. It is a question that will have to be faced by the people of New South Wales. But legally the position of the Governor of this State, or of any State, will not be affected if Australia becomes a republic. There will not be a massive change; there will still be a Governor of New South Wales whether or not Australia becomes a republic after 2001. The History Council of New South Wales has been extremely perturbed by that particular suggestion and does not support the attempt to pre-empt the outcome of the current debates on future change of the Australian Constitution. If the Opposition amendments are supported, the sky will not fall in on Government House, as long as the present management plan does not change. But we have no guarantee that it will not change. The amendment to schedule 1 does not state that more than one plan can be prepared in respect of Government House, or any other historic house.
Therefore, the present agreed framework could be superseded next week by one authorising alterations to Government House that are not compatible with the present or any subsequent Governor returning to take up residence in Government House. I would ask the Leader of the Government to put his mind to that matter before the bill is considered in Committee. I want to make sure that there will be no changes that are detrimental to the historic importance of Government House and to its enjoyment and use by the people of New South Wales. I will take great interest in hearing the Minister in reply and in discussing the matter further in Committee when the Hon. J. M. Samios will introduce his amendments on behalf of the Opposition.
Reverend the Hon. F. J. NILE [6.22 p.m.]: The Christian Democratic Party agrees in principle with the objects of the bill but we share the concern of other members of this House about the present and future use of Government House. Also, some concern has been expressed to us about the future of the site of the first Government House. This bill will more accurately reflect the role of the Historic Houses Trust in managing and maintaining not only houses of historical importance but also various other buildings, structures and sites. The bill goes on to give certain other powers to the trust. There are 13 properties managed by the Historic Houses Trust including house museums such as Elizabeth Farm and Vaucluse House, two museums of social history, Hyde Park Barracks and the Justice and Police Museum, and two sites of significance to the administration of this State and country, the Museum of Sydney on the site of first Government House and Government House.
Our party does not want Government House to be considered as an historic house or museum, but rather a living house. When this House attended the Address-in-Reply presentation to the Governor, Government House had an emptiness. Whereas it was previously a living Government House, now it is like a museum and has a sense of death about it. I note that historic houses were referred to in the Governor’s Speech as living places, but Government House is a dead place. Government House should be restored as a living house, a place where the Governor lives. I urge the Opposition when it gets
into power to require any nominee for the position of Governor - and such nomination has to be approved by the Queen - to agree to reside in Government House.
Also, the Christian Democratic Party believes that Government House should not be regarded as a historic house. By using Government House as a residence, the Governor would ensure the proper maintenance and protection of the building and property. Jack Mundey would not have to look after Government House because the Governor would look after it, as has been the practice for many years. It is essential that Government House is a residence, not a museum. The Christian Democratic Party agrees with the 10-point plan announced by the Opposition on 16 January. The 10-point plan pledges: one, to allow the Governor to return to Government House; two, to retain the building as the Governor’s principal workplace and residence - a house to be lived in by the Governor and his family, and a place to entertain important overseas visitors, as it has been used in the past; three, to use the building as the Governor’s main ceremonial building; and, four, to adequately resource the Governor as a full-time Governor. The Labor Government has sought to undermine the position of Governor by making it a part-time position.
The plan also pledges: five, to guarantee public access and White House-style public tours. We emphasise that should be by agreement of the Governor. When Rear Admiral Peter Sinclair was Governor, Government House was open to visitors and groups almost every day. Groups participated in activities in the Government House grounds and many charities used the grounds for fundraising purposes. We should have faith and trust in the Governor to be in charge of public access to Government House and its gardens. We also agree with point six - to evict any organisation which might take up tenancy between now and March 1999. In a letter to an Independent member of this House dated 29 October, Brett Johnson, Arts Policy Adviser, office of the Premier and Minister for the Arts, stated that under the agreed framework for the use of Government House the west wing, developed for appropriate arts organisations, would be able to be vacated at short notice. We oppose that in principle and question it as unnecessary. It is a type of creeping control over the building to make it difficult for any future Governor to use Government House as a residence. Controversy will arise about evicting organisations from the various parts of Government House, such as the west wing.
We agree with the next points: seven, to continue to fill the position of Governor from this State’s eminent citizens; and, eight, to utilise the building during the Sydney 2000 Olympics and the centenary of our Federation in 2001. It is a disgrace that in New South Wales, the premier State, the Governor does not reside in Government House. In smaller States such as Tasmania, Government House is a place of prestige and importance. The Labor Government should hang its head in shame that it has undermined New South Wales as the premier State. It is as though the State is bankrupt and we are renting out Government House to obtain revenue to help meet the budget.
We also agree with the ninth point, retaining the position of the New South Wales Governor regardless of any changes to Australia’s Constitution. We do not necessarily agree with the tenth point because we do not believe that Australia will ever become a republic. Shame on the Deputy Leader of the Opposition for signing the advertisement which appeared today. He is a senior officer of the National Party. We regard it as a betrayal of National Party voters. He told me that he had come out of the closet. I hope he will review his position and return to National Party policies which support our constitutional monarchy.
The Hon. Dr B. P. V. Pezzutti: It is all right to have your own view.
Reverend the Hon. F. J. NILE: No, he has betrayed his party and its voters. There should be ethics. I regard it as a betrayal. The Deputy Leader of the Opposition knows that I go around the country towns showing my supporters how the National Party votes. Now, sad to say, I will have to show them the advertisement. It will not impress them. I have a whole itinerary of country towns lined up to visit. I will distribute copies of the advertisement far and wide. I will give him a chance to repent and, if he repents, I will not distribute copies of the advertisement. All of us remember the march in 1996 when tens of thousands of citizens rallied against the Premier and expressed outrage at the way Government House was being treated.
A statement from Greg Kenny, Senior Policy Officer, Policy and Programs, details the Government’s agreed framework for the use of Government House. There are a number of aspects that trouble us. Some aspects are positive but we say that public access to the House and garden should be only with the Governor’s approval and by the Governor’s decision. There is reference to changing the doors and entrances to Government House. Obviously that should be done only in co-operation with the Governor. There are proposals for the development of up to six entrances, with security
implications. We also oppose the statement in the agreed framework which refers to the option of using the chalet as the Governor’s residence. The Governor is to be treated almost as one of the staff. The statement reads:
The option of using the Chalet as the Governor’s residence, and the west wing as offices for the Office of the Governor, is accepted - subject to detailed planning including resolution of facilities for three residential staff.
We disagree with that proposition. There are major problems. The Hon. J. M. Samios has seen the documentation. We support the amendments foreshadowed by the Hon. J. M. Samios. We think they will help to save Government House from the vandals in the Government. They not only want to get rid of the Governor; they want to get rid of Government House as a symbol of the Governor’s role and position. To undermine the position of Governor they want to do all they can to undermine the suitability of Government House. It should really be retitled the Governor’s House. Mr Carr thinks it is his House and he can do with it what he likes. It is the Governor’s House, not the Australian Labor Party Government’s House.
The Hon. JENNIFER GARDINER [6.34 p.m.]: I support the Opposition’s foreshadowed amendments. I support the 10-point plan of the Liberal and National parties with respect to the future use of Government House. I also declare that I am a constitutional monarchist. Reverend the Hon. F. J. Nile will be happy to hear that. Apart from the proposed amendments with respect to Government House, I draw attention to the proposed amendment relating to the need to preserve the words "in acquiring the museum that is now known as the Museum of Sydney on the site of first Government House, nothing in this or any other Act authorises the official name of that museum to be changed". Back in 1983 the Friends of the First Government House (Inc.), of which I am proud to be a member, was formed by a small group of people, including Mrs Nell Sanson. They were concerned that a priceless part of our heritage, the remains of the first Government House, the first European building in Australia and the literal foundations of our nation, were in danger of being obliterated by new high-rise buildings.
This historic area had amazingly remained largely undisturbed since the first Government House was demolished in 1845. It formed a unique and fragile time capsule of the first half century of the history of modern Australia. That group of people worked and lobbied hard, including members of this House, historians, architects, builders and ordinary Australians who committed themselves to save the site for posterity. Building plans were revised to allow an archeological dig to explore the remains, which were subsequently to be permanently preserved beneath the paving of a commemorative plaza. Leading up to the opening of the Museum of Australia there was a debate about the name by which the new museum was to be known. Eventually, the Museum of Sydney came to be named as it is today - the Museum of Sydney on the site of the first Government House. The building which houses the museum was designed after a competition. Wal Murray was then Minister for Public Works.
The Hon. Dr B. P. V. Pezzutti: Was he responsible for the name?
The Hon. JENNIFER GARDINER: No, he was responsible for the preservation of the site as Minister for Public Works at the time the competition was held. The National Party is proud that in the end the site was preserved. We want it to be preserved and known as the site of the first Government House forever. The design means that visitors to the museum of Sydney can look down into a section of the modern granite paving to see the original 1788 foundation of Governor Phillip’s house. I stress that the House needs to support all the Opposition amendments, including the one protecting the words "the site of first Government House" in the name of the Museum of Sydney.
Debate adjourned on motion by the Hon. Jennifer Gardiner.
TRANS-TASMAN MUTUAL RECOGNITION (NEW SOUTH WALES) AMENDMENT BILL
The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council), on behalf of the Hon. J. W. Shaw [6.38 p.m.]: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
This legislation will amend the Trans-Tasman Mutual Recognition (New South Wales) Act 1996.
In 1996 the New South Wales Parliament referred power to the Commonwealth to pass legislation in the terms set out in the Trans-Tasman Mutual Recognition (New South Wales) Act 1996.
The Act implemented The Trans-Tasman Mutual Recognition Arrangement signed by all Australian jurisdictions and the Government of New Zealand.
The Arrangement sets up a scheme that operates so that goods acceptable for sale in one participating jurisdiction should be acceptable in any other.
Similarly, services provided by a person registered to practise an occupation in one participating jurisdiction should be acceptable in any other.
The New South Wales Act made a limited referral of power to the Commonwealth to legislate under section 51(37) of the Constitution for the passage of the Trans-Tasman Mutual Recognition legislation.
The passage of the New South Wales Act in 1996 was the first stage in implementing the Arrangement in Australia.
After the New South Wales Act was passed, the Commonwealth introduced its Bill into Parliament.
In its passage through the Commonwealth Parliament, it was passed by the House of Representatives but amended in the Senate.
The Senate amendment was moved by the Opposition and agreed to by the Government.
The New South Wales Act was drafted to make sure that any amendments to the Commonwealth legislation must also pass through the New South Wales Parliament.
The Commonwealth has asked New South Wales to make the amendment set out in the amending Bill so that the Commonwealth and New South Wales legislation conform.
The New South Wales Act must be amended to ensure that the referral of power by New South Wales includes the amendment agreed to by the Commonwealth in the Senate.
A Commonwealth Act that is not in substantially the same form as that referred to it by New South Wales may have no operation in New South Wales.
Should the Commonwealth enact an Act that is not in substantially the same form as that referred to it by New South Wales (in other words, before the New South Wales Act is amended), there is potential for the Commonwealth Act to be challenged as unconstitutional.
As all other States are waiting for the Commonwealth legislation to be in place before enacting their own legislation, delays in the process would jeopardise the commencement of the Scheme in early 1998.
The Act allows for Special and Temporary Exemptions of specified legislation.
The exemptions are for an initial period of 12 months during which parties will negotiate the harmonisation of standards applying to the exempted products.
The legislation covered by a Special Exemption is included in a Schedule to the Act.
A Special Exemption can be extended beyond the initial 12 months to allow more time to negotiate harmonisation.
The parties to the Arrangement have already identified several areas of health, safety and environmental pollution regulation which will be subject to Special Exemption.
This amendment adds some product safety laws to the list of Special Exemptions.
These laws cover safety standards for a range of toys and other children’s products as well as some other general items such as bicycle helmets, kerosene heaters and beanbags.
The New South Wales Government is happy to have a Special Exemption for these laws.
The initial 12 month exemption period will allow participating jurisdictions to negotiate for a harmonisation of the regulations governing the safety standards of those products.
Mr President, this Amendment Bill is intended to ensure that the Act enacted by the Commonwealth is in keeping with the referral of power contained in the New South Wales Act.
The amendment included in the Trans-Tasman Mutual Recognition (New South Wales) Amendment Bill is a technical amendment required to ensure that the Commonwealth has the necessary referral of power before it enacts its Trans-Tasman Mutual Recognition legislation.
It makes no substantive change to the operation of the Scheme.
Mr President, this Arrangement has been negotiated by ten Governments through a long process of consultation and co-operation.
The amendment in this Bill is the final piece for New South Wales to put in place so that the Trans-Tasman Mutual Recognition scheme can commence in early 1998.
I commend the Bill to the House.
The Hon. J. M. SAMIOS [6.39 p.m.]: The Opposition supports the legislation. The bill’s object is to remove regulatory barriers to the movement of goods and services provided between Australia and New Zealand. It reflects the history of the concept of mutual recognition of regulatory standards for goods and occupations which has operated in Australia since 1992. It was initiated in New South Wales by the Greiner Government and was implemented by subsequent Premier John Fahey. The principal aim of mutual recognition is to remove needless barriers to interstate trade in goods and the mobility of labour caused by the many regulatory differences between various Australian States and Territories. As a result of passage of Federal legislation and a debate in the Federal Parliament the Federal Government has asked New South Wales to amend legislation to exempt some safety products from the mutual arrangements. Those products include children’s items, bean bags, bicycle helmets and kerosene heaters. The effect of placing the goods on the schedule is to exempt them from those mutual recognition arrangements for 12 months, after which time, as has been indicated in
the lower House, the exemption will be reviewed. The Opposition supports the legislation.
The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [6.41 p.m.], in reply: I thank the Hon. J. M. Samios for his comments. I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.
[The Deputy-President (The Hon. J. R. Johnson) left the chair at 6.41 p.m. The House resumed at 8.15 p.m.]
ASSENT TO BILLS
Assent to the following bills reported:
Inclosed Lands Protection Amendment Bill
Public Notaries Bill
SPORTS DRUG TESTING AMENDMENT BILL
The Hon. R. D. DYER (Minister for Community Services, Minister for Aged Services, and Minister for Disability Services) [8.17 p.m.]: I move:
That this bill be now read a second time.
I seek leave to have my second reading speech incorporated in Hansard.
The purpose of this bill is to amend the Sports Drug Testing Act and remove inconsistencies between it and the Commonwealth Sports Drug Agency Act.
As Honourable Members would be aware, shortly after this Government came to office, the Minister for Sport and Recreation introduced legislation which provided for the testing of State sporting competitors for the use of performance enhancing substances or doping methods. This legislation, the Sports Drug Testing Act essentially conferred power on the Federally funded Australian Sports Drug Agency to conduct testing on behalf of the State and in accordance with the procedures set out in the Australian Sports Drug Agency Act and its Regulations.
In July 1996 the Commonwealth made a number of amendments to its Legislation to the extent that the Sports Drug Testing Act is now inconsistent with the Commonwealth Legislation and as a result testing of NSW competitors is no longer possible without amendment to the Sports Drug Testing Act.
Amendments to the Commonwealth Legislation now meant that the Sports Drug Testing Act made reference to sections of the Australian Sports Drug Agency Act which were now repealed. That will be rectified in this Bill.
The Commonwealth Legislation was amended to provide that except for specific procedures critical to ensuring the integrity of a test result, substantial, rather than strict compliance with the regulations is sufficient. The Sports Drug Testing Act does not provide for substantial rather than strict compliance. Given compliance with prescribed procedures is a ground on which a competitor may challenge the validity of a positive drug testing result the Government has determined that amendment to the Sports Drug Testing Act is required. That will occur in this Bill.
The Commonwealth Legislation was amended to establish the grounds for failure to comply with a request to provide a sample. The Sports Drug Testing Act does not establish these grounds by linking the Australian Sports Drug Agency’s request with the failure by the competitor to comply. That will be remedied in the Bill.
The Commonwealth Legislation moved several provisions in the Regulations to the body of the Act resulting in the omission of several regulations previously prescribing the notification of results of initial and final testing of the sample and the right of the competitor to be present at the testing of the "B" sample. As the Sports Drug Testing Act relied upon the testing of the sample as set out in the Commonwealth Regulations, and as they have been deleted, the Australian Sports Drug Agency is precluded from testing State competitors. That will be remedied in the Bill.
The Commonwealth Legislation has been amended to include a list of particulars that the Australian Sports Drug Agency may collect from a competitor. The Sports Drug Testing Act does not empower the Agency to collect such particulars. That will be remedied in the Bill.
The Commonwealth Legislation has been amended to enable the Australian Sports Drug Agency to notify the relevant National Sporting Organisation if it appears that a competitor is likely to fail to comply with a request to supply a sample so that the National Sporting Organisation has the opportunity to persuade the competitor to comply. The Sports Drug Testing Act has no similar provision. That will be remedied in the Bill.
The Bill provides that instead of the Sports Drug Testing Act mirroring the provisions of the Commonwealth Act in relation to the Agency’s drug testing functions, the relevant sports drug testing provisions of the Commonwealth Act and Regulations will be adopted and apply as laws of the State. Furthermore, future amendments to the Commonwealth Act and Regulations will automatically apply as laws of the State unless a Regulation is made within six months from the date of the Commonwealth amendment either excluding or modifying its operation. In this way amendments made to the Commonwealth Legislation in response to successful challenges against its functions or procedures will quickly and efficiently apply as law in NSW.
I wish to assure Members that the provisions contained in the Sports Drug Testing Act prohibiting the taking of samples from persons under the age of 12 years will still apply and that parental consent will be required for the taking of samples from competitors from 12 to 17 years of age.
In the lead-up to the 2000 Olympics the Sports Drug Testing Act together with the drug awareness campaign conducted by the NSW Sports Drug Education Unit within my Department are pivotal to the success in the fight against the use of performance enhancing substances in sport. This Bill will assist in that fight.
I commend the bill to the House.
The Hon. R. B. ROWLAND SMITH [8.17 p.m.]: Before looking at the substantive parts of the bill I would like to make some general comments about drugs in sport. First, there is no place for drugs in sport. There is nothing so inspiring as an athlete striving to achieve excellence and nothing so disillusioning as an athlete who has used drugs to artificially enhance his or her performance. The use of performance-enhancing drugs makes a mockery of all the ideals that sport represents. The use of drugs by sports men and women is not a recent problem. It was catapulted into the international spotlight during the Seoul Olympics in 1988. I had the pleasure of attending those Games and witnessing exactly what happens. The scandals of the Seoul Olympic Games made us realise that action must be taken to protect the goal of personal excellence that is integral to competitive sport.
It is not only the ideals of sport that are being harmed by drugs but also the athletes themselves. Serious and potentially lethal health risks are associated with the use of drugs. Our athletes put more than their careers at risk when they resort to their use. It was back in 1988 that the coalition Government established the Hunter Academy of Sport. The two most prominent members of this academy were Professor Laura and Professor Saxon White. Both of these men were themselves great athletes. Professor Laura was a world body building champion and Professor Saxon White was an outstanding rugby player who represented Australia on a number of occasions. These gentlemen both felt that a seminar ought to be held on the whole question of drugs in sport. As the relevant Minister at the time, I gave my full support to this and attended several seminars in Newcastle. At the conclusion of these seminars a book was written by Professors Laura and White entitled Drug Controversy in Sport. I recommend this book to all members who are interested in this particular subject. Under the heading "Why doping persists in sport", the book states:
In 1988 Dr Forest Tenant estimated that as many as one million athletes in the US alone are using anabolic steroids and current estimates indicate that Tenant’s figures are conservative. The statistics are in any case horrifying, and since Tenant’s analysis of the situation, the revelation of unbridled steroid usage among teenagers has shocked the world.
Researchers from Pennsylvania State University under the direction of Dr William Buckley in 1988 carried out a study of 3403 senior boys at 46 US high schools in which it was shown that 6.6 per cent had taken steroids. Extrapolating these figures Buckley suggests that somewhere between 250 000 and 500 000 adolescents in the US are taking or have taken steroids. It is all the more disconcerting to discovery that two-thirds of the adolescents who have used steroids started doing so at age of 16 or younger.
Given the young age of steroid users and the massive doses being taken, the health risks are all the more serious. It is suggested by some practitioners that young athletes who take heavy doses of anabolic steroids for 60 to 90 days should expect to die in their 30s or 40s.
Dr Robert Goldman, chairman of the United States Amateur Athletic Union’s Medical Committee, laments, "The scary part is, here we have the finest product of this country - our young people - and we’re going to have an entire patient population developing diseases they never should have had in the next five or ten years."
Nor is it the case that athletes are simply ignorant of the health risks involved. In a survey recently conducted by Goldman 198 world-class athletes were asked whether they would take a "magic drug" which would guarantee them victory in any competition for the next five years. Goldman reports that more than half - 103 - said yes.
Finally, I quote again from the book Drug Controversy in Sport as follows:
Many turn to doping as a way out. As the common saying in the US goes, "You dope to cope".
Legislation may help, but it is not simply the letter of the law, but the spirit of the law which needs to be enshrined. While we need to educate our athletes on an international scale to the dangers associated with doping, we need also to recognise the extent to which our current life-style covertly encourages the drug problem in sport. The real task is to articulate in educational terms a social philosophy and ethics of sport in which winning at any price is ultimately too high a price to be paid.
I raise these matters prior to looking at the substantive part of the legislation because it is essential that we fully understand why athletes, and particularly young people, turn to drugs in sport. There has been a great deal of controversy over the performance of the Chinese athletes in Atlanta. We need to be careful that we do not pluck the mote out of their eyes before looking at the mote in our own. More recently it has been found that some athletes in this country, especially those of international standard, are or have been taking drugs.
I turn now to the legislation at hand. The object of the bill is to provide that instead of the State Act mirroring the provisions of the Commonwealth Act in relation to the agency’s drug testing functions, the relevant sports drug testing provisions of the Commonwealth Act and regulations will apply as laws of this State. This
means that the drug testing of State competitors will be done in accordance with the relevant Commonwealth sports drug testing laws - as applied as laws of the State - rather than under the separate and inconsistent provisions of the State Act.
The bill also provides that any future amendment of the Commonwealth laws will automatically apply at the State level unless the regulations under the State Act provide for the amendment to be modified in its application, or to be excluded from so applying. The amendments to the Act are contained in the schedules to the bill and are summarised in the explanatory notes, which are quite simple. They refer specifically to the functions of the agency’s drug testing. Schedule 1 removes from the regulation-making power under the State Act the reference to the making of regulations about collecting samples from State competitors under the age of 18 years. As a result of the proposed Act, the collection of samples will be carried out under the applied provisions and not under the provisions of the State Act or its regulations. This in itself is a good thing.
Recently the President of the Australian Olympic Committee, John Coates, said that names of drug cheats should be publicised. I believe that such a move would be worthwhile and should be supported. Public humiliation is an effective form of deterrent when it comes to drugs in sport and Mr Coates’ suggestions are opportune. The annual report of the Australian Sports Drug Testing Agency referred to the fact that only 37 tests out of the 3,000 undertaken were positive. Whilst that is only a small number, it is still far too high and the importance of leaving drugs completely alone must continue to be impressed upon our athletes. I believe this legislation is sound. Testing will be better facilitated under a Commonwealth regime than under State rules. The Opposition has no hesitation in supporting this worthwhile legislation.
Reverend the Hon. F. J. NILE [8.28 p.m.]: The Christian Democratic Party strongly supports the Sports Drug Testing Amendment Bill, which is an important measure in the control of sporting activity to ensure that the sporting world is free from drugs. The bill provides that instead of the State Act mirroring the provisions of the Commonwealth Act in relation to the agency’s drug-testing functions, the relevant sports drug-testing provisions of the Commonwealth Act and regulations will apply as laws of the State. This means that the drug testing of State competitors will be done in accordance with the relevant Commonwealth sports drug-testing laws - as applied as laws of the State - rather than under the separate and inconsistent provisions of the State Act. The bill also provides that any future amendment to the Commonwealth laws will automatically apply to the State laws, unless the regulations under the State legislation provide for the amendment to be modified in its application or to be excluded from so applying.
In recent years people have been concerned about the large amount of evidence that indicates that drugs have been abused by competitors in sporting events, even at the Olympic Games. Unfortunately, some drugs are hard to detect. Athletes have used steroids to develop muscle strength and to give them an advantage over athletes who do not use drugs. The former East German athletes led the world in sporting events, but it is now apparent that it was government policy for athletes to use drugs to increase their ability, a practice that has brought the records of the time into disrepute - records that cannot be changed. Prominent Australian athletes were beaten by East German athletes who were using drugs: they were robbed of Olympic medals.
China has been the subject of recent controversy. In particular its female competitors appear to be involved in illegal drug use - they have developed male characteristics in relation to body shape, muscle and ability. A few years ago such practices were prevalent in swimming, but it appears that they have moved to running events. Recently Chinese athletes broke not only Chinese and Asian records but world records with almost no effort. It would not have been unusual for one athlete to do that, but three or four athletes doing so in one event raised questions about the illegal use of drugs. The Chinese authorities have strongly denied it, and have attributed the success to its training techniques and the ability of its competitors to win those events.
I am concerned about the abuse of drugs in sporting events and the problems associated with identifying such drugs. Some athletes are using scientific ingenuity to discover and use drugs that leave no trace so that when they are tested it is difficult for someone to detect that they have used drugs. Some drugs increase muscle strength and other aspects of the competitor’s body; other drugs make the competitor more aggressive. A mind-bending drug may change the attitude of the competitor. Not all drugs enhance the athlete’s ability; some allow the athlete to use natural ability but to go beyond the normal pain threshold. Such drugs are just as dangerous as performance-enhancing drugs and they should be banned. As I have said, a broad range of drugs is difficult to identify. I am pleased to support the bill, particularly
as Sydney will host the 2000 Olympic Games. We want the Sydney Olympic Games to be the cleanest in the history of the Games; we want the competitors to win their medals based on ability, not on artificial stimulants.
The Hon. R. D. DYER (Minister for Community Services, Minister for Aged Services, and Minister for Disability Services) [8.35 p.m.], in reply: I thank the Hon. R. B. Rowland Smith and Reverend the Hon. F. J. Nile for their support for the bill, which I commend.
Motion agreed to.
Bill read a second time and passed through remaining stages.
TRUSTEE AMENDMENT (DISCRETIONARY INVESTMENTS) BILL
The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [8.35]: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
This bill provides for amendments to the Trustee Act 1925. The principal purpose of the amendments is to confer a discretion on trustees to invest in any kind of investment provided that the investment is prudent having regard to the circumstances of the trust.
Currently, section 14A of the Trustee Act 1925 sets out a list of securities in which a trustee may invest funds. This list is generally known as the authorised trustee investments list. The Act provides that a trustee may invest funds in any of the securities authorised by the Act, unless the instrument creating the trust expressly prevents him or her from doing so.
Of course, a trustee may also invest in securities which are not authorised by the Act, if the instrument creating the trust contains such powers.
The proposed amendments repeal the list of authorised investments and replace it with what might be described as a "prudent-person rule". That is, a trustee may invest trust funds in any investment provided that due care, diligence and skill is exercised.
The approach adopted with respect to this test is consistent with that taken in legislation in New Zealand, Victoria, South Australia and, more recently, in Western Australia. That is, the level of care, diligence and skill required in exercising a power of investment differs in accordance with whether the person acts as a trustee in either a professional capacity, or as part of their business or employment, or is a lay trustee.
The issue of authorised trustee investments was referred to the non-bank financial institutions working group, an officers’ working party, in 1991 by the special Premiers’ Conference. Officers were asked to report to Ministers on whether the list approach (which was then taken in all Australian jurisdictions) should be retained, or whether the "prudent person" approach should be introduced.
The report of the working group supported the adoption of the "prudent person" rule. The Trustee Advisory Committee, an expert body established under the Trustee Act to advise the Attorney General on matters related to trustee investment, has also indicated its support for the adoption of the prudent person rule approach.
The concept of the "prudent person" was first laid down in 1830 in the decision of Harvard College v. Amory which states:
All that can be required of a trustee is that he shall conduct himself faithfully and exercise sound discretion. He is to observe how men of prudence, discretion and intelligence manage their own affairs, not in regard to speculation, but in regard to permanent disposition of their funds, considering the probable outcome, as well as the probable safety of the capital to be invested.
The abolition of the authorised investments list means that trustees will be able to take advantage of the diversity of financial investment packages available in the current financial market.
However, in addition to the standard of care required under the prudent person test, the bill sets out a range of matters to which a trustee must have regard when exercising a power of investment. These include factors such as the risk of capital or income loss or depreciation, tax liability, the nature of the trust and the need to maintain the real value of the capital or income of the trust.
In this context, provision has also been included enabling the trustee to obtain independent investment advice and recoup the cost of doing so from trust funds.
The proposed amendments introduce a number of other provisions, which are consistent with legislation adopted in other jurisdictions. These include provisions relating to the powers of trustees in relation to securities, including provision enabling a trustee to concur in a scheme of arrangement for the acquisition of securities or the amalgamation of body corporates.
The bill also provides that, in proceedings against a trustee for a breach of trust, the court may take certain matters into account, including the nature and purpose of the trust, whether the trust investments were made pursuant to an investment strategy formulated in accordance with the trustee’s equitable duties under part 2 and the extent to which the trustee acted on the independent and impartial advice.
Provision has also been included in relation to the purchase of a dwelling house for use by a beneficiary.
The existing statutory list approach has many shortcomings. It has the potential to mislead the inexperienced trustee and the public because it embodies a basic assumption that the investments included on the list are safe. Further, the list does not indicate which investments are suitable for which type of trust.
In addition to the responsibility it imposes upon government to maintain such a list, the inflexibility of the list approach means that in a rapidly changing financial environment many new investment instruments, which are likely to be just as sound by objective criteria, are not available to the responsible trustee.
The existence of the list has also led to the undesirable situation where deposit or investment bodies lobby government to be included on the list so that they may market their product as "authorised trustee investments".
The repeal of this list will do away with this practice.
The flexibility and diversification that the prudent person approach brings to investment choices could be considered vital to the well-being of any trust fund in today’s economy.
I am aware that several other Acts, including the Local Government Act 1993, the Public Trustee Act 1913, the Protected Estates Act 1983, the Legal Profession Act 1987 and the Charitable Fundraising Act 1991, apply the list of authorised investments to other instrumentalities such as charities and local councils.
The investment needs of such organisations vary and the application of the "prudent person" rule may be inappropriate particularly for bodies dealing with public funds.
Further, many private, non-professional trustees and executors rely on the list for guidance for investing relatively small amounts of money for short periods of time and the existence of a list obviates the need for these trustees to obtain expensive professional advice.
In order to meet the needs of the organisations and trustees set out above, the bill includes transitional provisions so that the list of authorised investments may continue to apply while consideration is given to the investment powers of organisations currently bound by the list.
A regulation making power has also been introduced to allow for the preparation of a list of investments which may act as a guide for trustees. However, the list, which will be developed in consultation with the trustee advisory committee, will not be mandatory.
Many trustees have invested trust funds on the basis of the authorised investments. Trustees will need to review investments following the introduction of the "prudent person" rule.
In order to allow trustees sufficient time to review and reorganise the investment of trust funds, the bill includes a provision to ensure that a trustee cannot be liable for failure to discharge his or her duty as a trustee, simply because he or she has invested in securities authorised by the Act, for a period of two years after the commencement of the Act.
I commend the bill to the House.
The Hon. J. M. SAMIOS [8.35 p.m.]: The Opposition does not oppose the Trustee Amendment (Discretionary Investments) Bill, which follows in principle legislation that has been enacted in New Zealand, Victoria, South Australia and Western Australia. The bill broadens the basis for trustees making investments and arises from a recommendation of the Standing Committee of Attorneys-General and an officers’ working party of the 1991 Premiers Conference. The proposed amendments repeal the list of authorised investments and replace it with a prudent person rule which is now in use in Victoria, South Australia and Western Australia. The prudent person principle encapsulates the responsibility that acting as a trustee places a requirement on that person to exercise the care, diligence and skill that a prudent person would exercise in managing the affairs of other persons. Further, the amendments preserve restrictions on trustees to ensure that trust funds are invested in investments that are not speculative or hazardous, as well as the duty to take advice.
The Supreme Court powers for redress and recovery of funds will be strengthened by the bill, providing for some protection for beneficiaries of trustee-administered investments. While the authorised investments listed under the 1925 Act have been removed, a regulation-making power is provided in this legislation that will allow for the preparation of a list of investments that will act as a guide for trustees. The list is to be developed in consultation with the trustee advisory committee and will not be mandatory. In essence, the legislation proposes to overcome the situation where trustees were somewhat bound by an authorised list, where companies lobbied to get on the list of authorised investments and, in many instances, where trustees were investing in authorised investments that were yielding an insufficient return for the beneficiaries. The Opposition does not oppose the bill, which follows similar legislation enacted in a number of other States.
Reverend the Hon. F. J. NILE [8.40 p.m.]: The Christian Democratic Party supports the Trustee Amendment (Discretionary Investments) Bill. The objects of the bill are to enable trustees to invest trust funds in any kind of investment, instead of requiring them to invest in the authorised trustee investments currently specified in the Act, so long as the investment is prudent having regard to the circumstances of the trust; to enable persons in certain circumstances to invest or maintain an investment in an authorised trustee investment currently specified in the Act for a period of two years after the commencement of the proposed Act; and for other miscellaneous matters. Schedule 1 to the bill will repeal section 14A of the principal Act, which sets out a list of securities, generally known as authorised trustee investments, in which a trustee may invest trust funds subject to the instrument creating the trust and the duty of a trustee to exercise ordinary business prudence. It is called the prudent person test.
The legislation will repeal that requirement and, obviously, give a trustee greater discretion in choosing investments in which the trustee invests funds by allowing a trustee to invest in any kind of investment, so long as the trustee satisfies the prudent person test, which states that if a trustee’s profession, business or employment is or includes acting as a trustee or investing money on behalf of other persons, the trustee is to exercise the care, diligence and skill that a prudent person engaged in that profession, business or employment would exercise in managing the affairs of other persons; or, if a trustee is not engaged in such a profession, business or employment, the trustee is to exercise the care, diligence and skill that a prudent person would exercise in managing the affairs of other persons.
A list of securities, known as the authorised trustee investments, was developed to protect those investments and the individuals who were allowing funds to be invested on their behalf so that there was no risk that the funds would be lost by imprudent investment. In a sense, the bill opens the door very widely. There is now no list of authorised trustee investments; it is left to the discretion of the trustee. This week I was reading a report on the crash of the Southern Cross Airlines, which was the successor to Compass Airlines. By various manipulations of funds and investments the person in charge of the airline stole $11 million from the company. I was considering how many people who had funds to invest would consider that a safe investment. The attitude appeared to be that there were aircraft securities and it was a new airline starting up, so it would be safe.
That report raises the question of what tests should be applied. Perhaps in due course the Government will publish in the regulations a list of a number of areas of safe investment, which might guide trustees who are not as experienced as others to continue to invest in reliable, trustworthy areas. It would be a great pity if people lost their funds through imprudent investments. I note that in debate in the other place a number of members raised this issue. When reading Hansard I noted that Mr Kerr, the honourable member for Cronulla in the other place, stated that the operation of the bill should be monitored so that the Government is certain that the various trustee bodies are clear about what the bill permits, and so that the legislation is observed in the way it was intended. Mr Kerr stated:
No-one wants to see the returns to beneficiaries unfairly restricted, but a balance must be struck. It is for that reason that the Opposition sounds a note of caution. As this bill will have a great impact, the Opposition wants its operation to be closely monitored. The Government should ensure that trustees are given every assistance to meet their obligations.
He commended the Government for the consultation that preceded the bill. The intention is good, but I urge the Government to support the proposal by Mr Kerr: the operation of the legislation should be monitored.
The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [8.45 p.m.], in reply: I thank honourable members for their support for the bill. As was noted earlier, transitional provisions will enable the continued application of the list of authorised investments while the investment powers of organisations are considered. A regulation-making power will provide for a non-mandatory series of guides for investments by trustees. Safeguards contained in the package are adequate for the purpose. I believe the bill has general support, and I thank honourable members for it. I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.
DRUG MISUSE AND TRAFFICKING AMENDMENT BILL
The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [8.47 p.m.]: I move:
That this bill be now read a second time.
In many ways this bill stands apart from those issues relating to drug law that generate controversy. It does not, and does not purport to, represent a departure from present laws that prohibit the use of drugs. Rather, it introduces a reform that impacts only on the question of sentencing of offenders. The primary effect of the bill will be to remove the penalty of imprisonment for those offences under the Drug Misuse and Trafficking Act that relate to the personal use and possession of small quantities of cannabis. "Small quantity" is defined by the Act to be, in the case of cannabis leaf, not more than 30 grams and, in the case of cannabis plants, not more than five plants. That was the definition of "small quantity" inserted in 1985, as I recall it, and it was reaffirmed in 1988 when the definitions and the quantity of drugs falling within the definition of small quantity were thoroughly reconsidered by the Parliament.
Honourable members will be aware that in recent days there has been a measure of public discussion about whether five plants is a suitable number for the purposes of this bill. I have been advised that, in response to those concerns, the Australian Democrats will move amendments to the bill in the Committee stage to reduce from five to three the number of plants to which the bill applies. I foreshadow that, having regard to the concerns that have been expressed, the Government will not oppose such an amendment. For the wider purposes of the Act, which include jurisdictional purposes, the small quantity of cannabis plants specified in schedule 1 to the Act should remain at five. For the specific purposes of this bill, however, the Government concedes that a reduction in the number of plants from five to three would not serve to undermine the intent of the bill.
Over recent years, statistics from the Bureau of Crime Statistics and Research have shown that custodial sentences for offences involving small quantities of cannabis have already largely been rejected by judicial officers in the Local Court as inappropriate to the nature of the offence. In simple terms, that means that magistrates have taken the view that while the conduct in question is illegal, the level of criminality involved in such offences is sufficiently low that it would be improper to punish offenders by way of a gaol sentence. This bill reinforces that view. The bill would signal that gaol is inappropriate for the possession or use of small quantities of cannabis. I understand the policy of the National Party; it is a mandatory gaol sentence - I am not sure whether that is for 12 months or for six months as the policy has changed a little - for the possession of one marijuana cigarette. The National Party is requesting a mandatory gaol sentence for the possession of one marijuana cigarette. Is that a fair and reasonable policy? I think not.
The removal of the most serious criminal punishment for the least serious category of offences, as is proposed, represents an appropriately moderate step in bringing the law into line with community expectations. This point brings us back to what the Government believes is the real issue: harm reduction. Imprisonment is a harmful experience. It is well recognised that prisons are dangerous and disturbing places to be. Young people, and naive offenders in general, are particularly vulnerable in prisons. Members must consider whether a gaol sentence for the possession of small quantities of cannabis is excessive and counterproductive. I believe it is.
Most judicial officers believe it to be excessive and counterproductive and the law ought to be brought into alignment with the sentences that are being imposed, unless, of course, the Parliament takes the view that judges and magistrates are getting it wrong. If a majority in the Parliament think that magistrates ought to be imposing sentences of incarceration for the personal possession and use of marijuana, let us beef up the law as the National Party is suggesting. But if, in fact, in the ordinary run of cases gaol is not seen as appropriate, let the law be brought into alignment with what in practice is imposed in the criminal justice system. The prison environment brings naive offenders into contact with more hardened criminals. It is widely contended that that experience can be significant in leading naive offenders into further criminal activity.
For these and other reasons, it has become an established principle of sentencing law in this State that imprisonment should be a form of punishment used only as a last resort. These factors take on particular significance when it is considered that most cannabis use is by people under the age of 25 years. The financial costs to the community of imprisonment are well documented. Having regard to these issues, the present proposals will bring about harm reduction. I turn now to the details of the bill. Item  of schedule 1 to the bill relates only to offences involving the possession or cultivation of not more than five cannabis plants. As I mentioned earlier, I understand that the Australian Democrats will be moving an amendment to reduce that number to three. The effect of the provision is to ensure that such offences will always be dealt with summarily. At present, though these offences may in theory be dealt with on indictment, that occurs only infrequently.
Item  may be thought of as the central item in schedule 1. That item amends section 21 of the Act, which is the section that specifies penalty levels for wholly summary offences under the Act. The effect of the amendment is to remove the existing gaol penalties for the possession or cultivation of the small quantities of cannabis that I have discussed, as well as for offences involving water pipes or the use of cannabis. Nothing in the bill reduces the maximum fines that may be imposed for any of these offences when they are disposed of summarily. Items  through to  effect consequential or tidying up amendments. Schedule 2 concerns matters of a transitional nature, and is unremarkable. That is the content of the bill.
I hope that the following will be abundantly clear, both to members of this House and to members of the community. The cultivation, possession and use of small quantities of cannabis
remains illegal. Any person who does those things will still be liable to arrest, will still be liable to substantial fines, and will still be liable to the stain of criminal conviction. None of that has changed. The bill will not decriminalise the offences to which it relates. In other words, it will not replicate the regime that exists under conservative administrations in South Australia and the Australian Capital Territory. What will change is that a disproportionate penalty, which does little good and in fact has the potential to cause substantial harm, will be removed. In undertaking these reforms the Government is proceeding prudently. The Government has not acted to decriminalise the offences in question, not least because it is currently unclear what the effect of that step has been in other Australian jurisdictions where it has been tried. In the meantime, the Government’s reforms will help to keep the law in step with community expectations, and ensure that respect for the law is maintained. I commend the bill to the House.
The Hon. J. P. HANNAFORD (Leader of the Opposition) [8.56 p.m.]: The coalition is strongly opposed to the Drug Misuse and Trafficking Amendment Bill. It is sufficiently opposed to this legislation to indicate that it will divide the House on the second reading. Upon its return to government after the March 1999 election the coalition will repeal this piece of legislation. The bill is a totally misconceived approach to dealing with drug use and drug problems within New South Wales. The Attorney General indicated in his submissions that this bill is based upon the concept of harm minimisation. Harm minimisation policies have been in existence in Australia for 15 years. It is fair to say that the community now takes the view that the concept of harm minimisation has failed. The Government is now sending out a message that there is to be a level of tolerance in the possession and use of marijuana based upon the principle of harm minimisation. That serves only to emphasise that the principles of harm minimisation have failed.
That is not to say that harm minimisation policies should not be in place. The Prime Minister said in his recent statements on drug control and dealing with drugs in Australia that there should be zero tolerance. The coalition adheres strongly to that principle but it recognises the need for harm minimisation policies. The Attorney General said that this bill should be supported because, basically, people have not really been going to gaol for the possession of marijuana. Whilst he did not identify the figures in his speech he said that the law should reflect the reality of sentencing. The House should bear in mind latest statistics. Local Court figures released by the Bureau of Crime Statistics and Research for the period ending 1996 identified that 93 people were imprisoned for the possession and use of cannabis; six were given periodic detention - that is to say, they were imprisoned but had to serve that period of imprisonment only at weekends or for short periods during the week; 44 were given community service orders; 104 were given recognisances or suspended sentences; 181 had no conviction recorded; and 2,739 were fined.
In relation to dealing and trafficking in cannabis, 52 were imprisoned, 29 were given periodic detention orders and only 56 were fined. In relation to the manufacture and/or growing of cannabis, 23 were imprisoned, 18 received periodic detention orders, 98 received community service orders and 846 were fined. Those figures are a clear indication that in certain circumstances the courts are prepared to impose a sentence of imprisonment. Those who are familiar with the court system in New South Wales are aware that an offender has to work very hard to be imprisoned. An offender is not imprisoned for a first offence of possession of a marijuana cigarette. It just does not happen.
The Hon. I. M. Macdonald: You never have a marijuana cigarette.
The Hon. J. P. HANNAFORD: That shows that I have not made use of the drug.
The Hon. Dr Meredith Burgmann: Have you ever inhaled?
The Hon. J. P. HANNAFORD: I have not even dragged, let alone inhaled. In certain circumstances, for example when a person who has been before the courts a number of times for drug-related offences is charged with possession, dealing or trafficking, or some other offence, the courts may take the view that a prison sentence is appropriate. The question that has to be asked is: what message is the Government sending to the community on drug use? Before the last election the Premier sought to advocate his election to the office of Premier on the basis that he would be tough on crime and on the causes of crime. Yet time and again his words have been shown to be rhetoric, as evidenced by this bill.
The Government is sending a message to the community that the use and possession of certain quantities of marijuana are not matters of grave seriousness. Research has shown that marijuana is a gateway drug. During the past decade people asserted that this is not so. Over the same period others have said that marijuana is a less damaging drug than tobacco. Research clearly indicates that is
not so. In newspapers one regularly reads that marijuana is what I might term a significant component in serious criminal offences. Under the headline "Killer walks free on bond" the following appears:
A man who bashed his father to death with a hammer while suffering from a mental illness - possibly induced by marijuana - was freed by a judge yesterday.
Under another headline "60 bongs a day, Killer gaoled for three years" it is reported:
A man who smoked up to 60 bongs of marijuana a day for 15 years was sent to gaol yesterday for stabbing a friend to death in a frenzied attack.
An article headed "Shocking crime after drug use" and under "Jailed over ‘grotesque’ kidnap plot" stated:
A judge said yesterday cannabis had inspired a man to hatch a "grotesque and macabre" plot to abduct his neighbours.
Another headed "Killer was ‘paranoid and obsessive’", an article about the death of Leigh Leigh, stated:
The night he murdered Leigh Leigh, Matthew Grant Webster had drunk 24 twist tops and smoked 14 cones of marijuana.
Yet another article, this time with the headline "Told to kill his family", stated:
Newcastle Supreme Court heard evidence that Hickey had suffered hallucinations induced by his excessive use of marijuana.
An article with the headline "Drugs a trigger in murders" stated:
A judge who jailed a man for the rape and murder of two Sunshine Coast girls said the parts played in the crime by mixing alcohol and marijuana should be considered by those contemplating legalisation of cannabis.
That message ought to be given to the left wing of the Labor Party. The interjections from members opposite confirm that this issue has been driven by the left wing of the Labor Party. Paul Whelan, the Minister for Police, was not prepared to introduce the bill in the other House.
The Hon. I. M. Macdonald: Did you have a joint when you were at university?
The Hon. J. P. HANNAFORD: No.
The DEPUTY-PRESIDENT (The Hon. D. J. Gay): Order! I call the Hon. I. M. Macdonald to order. I also remind the Hon. Dr Meredith Burgmann that regardless of the topic being debated in this House certain language will not be tolerated. I ask her to moderate her language.
The Hon. J. P. HANNAFORD: Clearly, deals have been done between the right and left factions of the Labor Party to give the Left a victory on this issue. This bill is clearly a pay-off to the Left. The Labor Party had to get the leader of the Left, Dr Andrew Refshauge, to introduce the bill in the lower House because the right wing was not prepared to touch it. I am appalled that right-wing members of the Labor Party, such as the Hon. A. B. Kelly and the Hon. B. H. Vaughan, have rolled over on this matter. They know that there is total opposition in the community to this bill. The Government is completely out of touch with the community.
The Government has ignored the pleas of the Salvation Army, which has written, as I understand it, to all members expressing its total opposition to this legislation and asking that all members oppose it. It has ignored the Australian Family Association, which has expressed a very strong view against this legislation and has asked members to oppose it. Drug Watch Australia, a branch of Drug Watch International, has asked members to oppose the proposal, as has the group PRYDE in Australia Inc. Those groups are concerned that the right message is given to children and their parents, and that the right leadership is provided by the Government to the community. They are concerned about the message that the Government is conveying with this bill. The Government should be prepared to say a very firm no to drugs. That is what the community wants to hear from us - a direction to say no to drugs.
The Government is not prepared to give that direction. What does the judiciary want? The judges have to enforce the law; they have the final say in such matters. The judiciary has made it clear that in some circumstances a period of imprisonment is appropriate and, so far as the Opposition is concerned, judges should have that option available to them. That has to be one of the weapons in their armoury in the war against drugs. People who regularly use this illegal substance must realise that in certain circumstances they will face gaol - and gaol is the ultimate deterrent. The gaol sentence available at the moment as a maximum is appropriate. The term is relatively low compared with sentences that can be imposed by magistrates courts. The coalition does not believe that the
sentence should be increased but the option of imposing a gaol sentence should be available.
The Australian Democrats have proposed that the existing maximum penalty should be reduced. The coalition does not support that contention; it will oppose a reduction of penalties. The Australian Democrats also propose a reduction in the number of plants that may be possessed. The Government proposal would effectively legalise possession of marijuana. Although there would be a monetary penalty, the message going to the community would be that legally people can possess five plants. That amount of marijuana could make up to 3,000 joints. The coalition supports the proposal to decrease the number to three, because reducing the quantity of this illegal drug that can be possessed would at least be a toughening of the law.
The coalition will send the message loud and clear to the community. That message will be well received because it will embrace the feelings of the community. We are not prepared to tolerate a level of use and abuse of illegal substances. That is the opposite of the message that the Government is sending - that it will tolerate a level of use and abuse. The coalition does not tolerate a level of use and abuse; nor do parents and members of the community. The Government no longer represents the interests of the broad majority of the people of New South Wales. That is a message that it will get on 27 March 1999. The coalition will represent the interests of the community by repealing this legislation.
The Hon. Dr MEREDITH BURGMANN [9.19 p.m.]: I support the legislation, which is a very sensible and moderate amendment to the State’s drug laws. The 1950s tirade by the Leader of the Opposition about "saying no to drugs" was extraordinary. From the beginning of the process of trying to amend the marijuana laws it has been extraordinary that the Opposition has taken a hypocritical, head in the sand, sanctimonious position, as if no coalition member has ever smoked marijuana. I would agree that the Hon. Helen Sham-Ho probably has not. However, I cannot believe that all other Opposition members were so boring on their way through university that none of them ever smoked a joint.
The Hon. Dr Marlene Goldsmith: We had -
The Hon. Dr MEREDITH BURGMANN: The Hon. Dr Marlene Goldsmith should know that I am talking about the younger generation of Liberals. If they have not smoked, they are not representative of Australia’s youth, because a recent survey has shown that 67 per cent of those aged between 18 and 24 have smoked a joint. By opposing the legislation Opposition members are saying that 67 per cent of young Australians who have smoked a joint are criminals and that they should go to gaol. That is what they are saying by their absurd opposition to this reasonable amendment to the legislation. Opposition members are not just hypocritical; they are prepared to send to gaol people who are otherwise totally law-abiding citizens of this land. We are talking about young people aged from 18 to 24 whose one so-called criminal activity -
Reverend the Hon. F. J. Nile: The judge makes the decision.
The Hon. Dr MEREDITH BURGMANN: Reverend the Hon. F. J. Nile should be ashamed of himself. He wants to send young people to gaol with hardened criminals. He purports to -
The DEPUTY-PRESIDENT (The Hon. D. J. Gay): Order! Reverend the Hon. F. J. Nile will have an opportunity to address the House on this matter at the appropriate time.
The Hon. Dr MEREDITH BURGMANN: Those who oppose the amendment are saying that a young person who is found with a small amount of marijuana for personal use should be sent to gaol. That is extraordinary.
Reverend the Hon. F. J. Nile: The judge makes the decision.
The Hon. Dr MEREDITH BURGMANN: Labor is saying that in no case is it appropriate for a young person with an amount of marijuana for personal use found in his possession to go to gaol. Young people who are otherwise law-abiding citizens should not be put into gaol with hardened criminals. Reverend the Hon. F. J. Nile should know that gaols are not very nice places, despite the Daily Telegraph saying that they are motels. We should not send to gaol young people who have made no other mistake in life except being caught with a small amount of marijuana on them. We have a hypocritical attitude to drugs.
The Hon. B. H. Vaughan: On a point of order. I cannot hear the Hon. Dr Meredith Burgmann because of all the interjections.
The DEPUTY-PRESIDENT: Order! The point of order is not valid. However, it is extremely difficult to hear the honourable member speaking. I entreat members who will be making contributions
later to desist from interjecting. I also ask the Hon. Dr Meredith Burgmann not to be sidetracked by Reverend the Hon. F. J. Nile on this matter.
The Hon. Dr MEREDITH BURGMANN: I will try not to be sidetracked by Reverend the Hon. F. J. Nile. We have a hypocritical attitude to drugs. Two drugs, alcohol and nicotine, are legal, and governments of all complexions live off taxes from them. Alcohol is involved in many more cases of criminality than marijuana is, despite the rubbish that we heard from the Leader of the Opposition about every crime that has ever been committed somehow being committed by drug-crazed hippies who smoke marijuana and then proceed to kill someone. It is true that much of the domestic violence in Australian homes is unfortunately fuelled by alcohol. Alcohol fuels our criminal problem. The most important public health issue of our day is the use of nicotine. It is ruining the health of Australians, and many billions of dollars spent each year to address the problems caused by nicotine.
The Hon. Dr Marlene Goldsmith: You want to add another one.
The Hon. Dr MEREDITH BURGMANN: The Hon. Dr Marlene Goldsmith does not know why I am raising these issues. The point is that these two extremely harmful drugs are legal and marijuana -
The Hon. Dr Marlene Goldsmith: So you want another one to be made legal? I cannot believe it.
The Hon. Dr MEREDITH BURGMANN: The Hon. Dr Marlene Goldsmith makes the extraordinary claim that the Government just wants to legalise another drug. The Government does not propose to legalise the drug; it is saying that young people should not be sent to gaol for being in possession of small personal quantities of marijuana. I am shocked that the Hon. Dr Marlene Goldsmith seeks to -
The Hon. Dr Marlene Goldsmith: They are not sent to gaol now.
The Hon. Dr MEREDITH BURGMANN: That is not true. The Hon. Dr Marlene Goldsmith should know more about criminal history. A Mrs May was sent to gaol two years ago for possessing a small amount of marijuana for personal use. She committed suicide in gaol at Liverpool cells because she was fearful that her children would be taken away from her. That is what happens when people are sent to gaol.
The Hon. Dr Marlene Goldsmith: That was not a first offence.
The Hon. Dr MEREDITH BURGMANN: Does the Hon. Dr Marlene Goldsmith think that if people are caught with marijuana on them twice they should go to gaol? She has a very punitive view of society, but I must say I am not surprised. According to the Opposition, people can drink and smoke as much as they like, and they can cost the public health system as much as they like, because those habits are legal. But when the Labor Party tries to bring in moderate and sensible amendments to the legislation so that young people are not sent to gaol for personal use of small amounts of marijuana, the Opposition goes into this hysterical, sanctimonious mode. When I heard the comments of the Leader of the Opposition earlier, I could not believe that he was capable of saying such things.
I ask comrades on the Opposition benches: why is it that Liberal Party States, such as the Australian Capital Territory and South Australia, have a system that has effectively decriminalised marijuana? The cannabis expiation notice system in South Australia and the Australian Capital Territory has actually decriminalised marijuana. The penalty is like an on-the-spot parking fine. I say to those opposite that society as we know it in those two States has not fallen apart. Society as we know it in those States is still going along fine, and marijuana use has not greatly accelerated there. In fact, there is evidence that because -
Reverend the Hon. F. J. Nile: It has increased.
The Hon. Dr MEREDITH BURGMANN: I suggest that Reverend the Hon. F. J. Nile wait until I finish the sentence. The evidence produced by the academic surveys shows that in those States with simply an on-the-spot fine cannabis usage has slightly increased because heroin and amphetamine usage has gone down. The use of those drugs that are much more difficult for people to use sensibly has in fact gone down.
The Hon. M. R. Kersten: How can you use a drug sensibly? Wake up to yourself!
The Hon. Dr MEREDITH BURGMANN: The Hon. M. R. Kersten should know very well that some cannot even use alcohol sensibly. I suggest he is tired and emotional and he should leave the Chamber. As I have said, the Liberal governments in those States have not fallen apart, and I suggest that is because it is a sensible policy. I should now like
to refer to what various commentators have said about the Howard Government’s attitude to drugs, on the ground that what we are getting from the Liberals opposite is this extraordinary "Just say no" 1950s John Howard policy on drugs. I would like to quote Gerard Henderson, who is a very important conservative commentator in the media. I never thought I would be quoting Gerard Henderson, but recently, in November 1997 -
Reverend the Hon. F. J. Nile: Gerard is a backslider.
The Hon. Dr MEREDITH BURGMANN: Reverend the Hon. F. J. Nile points out that Gerard Henderson is a backslider. Presumably every conservative commentator who does not agree with Reverend the Hon. F. J. Nile all the time is a backslider. Even when he says things that I do not agree with, I have always found Gerard Henderson’s articles accurate and enlightening - unlike the drivel we get from Piers Akerman and Paddy McGuinness. When talking about the Howard Government’s drugs policy in the Sydney Morning Herald of 4 November 1997, Gerard Henderson said:
You can certainly judge this government program on its cover. The Prime Minister’s address in Sydney last Sunday was headed "Tough on Drugs: Launch of the National Illicit Drug Strategy".
Get it? From this day forth, Australia is going to get tough on drugs. Real tough. So tough that the Federal Government does not concede that it has a national drugs strategy. That’s for wimps. No; Australia now has a national illicit drugs strategy. Let no-one doubt it.
Gerard Henderson attacks the whole absurd idea, quoting people like Kate Carnell, the Chief Minister in the Australian Capital Territory. Gerard Henderson concludes his article with the following words:
The National Review, in its February 1996 issue, was emphatic that the failed drugs war "is diverting intelligent energy away from how to deal with the problem of addiction; that it is wasting our resources and that it is encouraging civil, judicial and police procedures associated with police states".
Ditto with Australia. It’s time to decriminalise some soft drugs and to ease up on users, as distinct from large dealers, of harder drugs. Otherwise decent law-abiding citizens will increasingly live frightened lives while our society is destroyed by the desperately addicted in pursuit of the seemingly unattainable.
I would also like to quote Alex Wodak, who has always been an advocate of sensible drug law reform. After years of studying the issue, Alex Wodak, in an article in the Sydney Morning Herald of November 1997, said:
The "Tough on Drugs" policy announced yesterday attempts to extricate the Prime Minister, Mr Howard, from the political problems he attracted by extinguishing the ACT heroin trial. It marks, especially by the deliberate choice of language, a new era of American-style zero tolerance policies which have been such a catastrophic and expensive failure in almost all countries.
This is the end of the sensible policy of harm reduction in Australia which began in 1985 and helped to control HIV infection among our drug users and the rest of the community. Half of the new heterosexual AIDS cases in the US result from sexual contact with a drug user.
Half of the additional funding enhances supply reduction (by about 3 per cent), representing a triumph of hope over experience. Supply reduction has been strengthened almost every year for three decades. Why should this enhancement make any difference when the previous ones have never done so?
For the benefit of members opposite, Alex Wodak is saying: why should the money that was put aside recently by John Howard to "fight the war on drugs" have any more effect than all the money that has gone into a war on drugs in the last 10 to 15 years?
Reverend the Hon. F. J. Nile: We haven’t had a war on drugs.
The Hon. Dr MEREDITH BURGMANN: Do members opposite think Malcolm Fraser was soft on drugs?
Reverend the Hon. F. J. Nile: We haven’t had one.
The Hon. Dr MEREDITH BURGMANN: If members opposite want a war on drugs, they should look at the situation in America where over a million American citizens are in gaol. The southern States now take prisoners from all over America because the northern and western States cannot house the prisoners that they are putting away. The southern States, led by Texas, are now building private prisons to put -
The Hon. M. R. Kersten: Where does this argument lead to - to decriminalising everything?
The Hon. Dr MEREDITH BURGMANN: I am simply saying that if members opposite want an all-out war on drugs - which I would argue was a process of the 1950s that did not work - they have to recognise that we will have to put a million of our citizens in gaol. I might add that it has not worked in the United States. In his article Alex Wodak went on to say:
This additional funding is going to an already over-funded and largely ineffective activity. At least half (and possibly up to 90 per cent) of the education funding is for "just say no"
instruction. This may go down well with some constituencies but it is money wasted.
The evidence suggests that when one goes to a school and says "Just say no", it reinforces the views of students who already wanted to just say no and incites the ridicule of students who disbelieve the story that all drugs will kill the moment anyone claps their eyes on them.
The Hon. Dr Marlene Goldsmith: Look at the research. Come out of your 1960s hippy haze and wake up!
The Hon. Dr MEREDITH BURGMANN: I ask the Hon. Dr Marlene Goldsmith to speak in a lower tone; I cannot hear her as I have high-frequency deafness. I would like to hear the comments of the Hon. Dr Marlene Goldsmith because it sounded like she had something to say.
The Hon. Dr Marlene Goldsmith: I am suggesting that the honourable member should come out of the 1960s and look at recent research because she has not alluded to any of it. The world has changed but the honourable member is stuck in a time warp.
The Hon. Dr MEREDITH BURGMANN: So you have discovered that nicotine does not kill people and alcohol does not make people aggressive?
The Hon. Dr Marlene Goldsmith: Of course it does.
The Hon. Dr MEREDITH BURGMANN: I am glad that the Hon. Dr Marlene Goldsmith thinks that sending young people to gaol for possessing small personal amounts of marijuana is old-fashioned.
The Hon. Dr Marlene Goldsmith: That is not what I said.
The Hon. Dr MEREDITH BURGMANN: You are saying it is a modern and up-to-date idea. I am sorry, I do not agree. The practice of sending young people to gaol when they have an otherwise blameless existence and are good citizens of this State who happen to have a small amount of cannabis in their pocket is morally repugnant and should be discontinued. Some honourable members should attend public schools to witness what the children are hearing about drugs. They would be amazed to realise that children’s knowledge of drugs goes well past the "Just say no" rubbish, which we are expected to put large amounts of money into peddling. Obviously honourable members opposite want to return to the prohibition policies imposed in the United States in the 1920s and early 1930s. What is the difference between gaoling people for possessing small personal amounts of marijuana and gaoling people for consuming small personal amounts of alcohol, which is what happened in the Al Capone era? I have a list of about 20 Australian inquiries into illicit drug use and control from 1971 to 1997.
The Hon. R. S. L. Jones: What are they?
The Hon. Dr MEREDITH BURGMANN: The Hon. R. S. L. Jones wants me to read them out. The first was the 1971 Senate Select Committee on Drug Trafficking and Drug Misuse, the Marriott inquiry; the 1973 Western Australia Honorary Royal Commission, the Williams inquiry; and the 1977 Senate Standing Committee on Health and Welfare Report: "Drug Problems in Society - an Intoxicated Society", the Baume inquiry. It is interesting that Peter Baume is actually a member of the parliamentary drug law reform group. It is also interesting that the Hon. Kevin Rozzoli, former Speaker of another place, is also a member of the parliamentary drug law reform group. Those who examine drug law reform with the intensity and seriousness of purpose evident in parliamentary committees recommend drug law reform and recommend that people should not be gaoled for possessing marijuana.
The Hon. R. S. L. Jones: What are the other inquiries? You have listed only about four.
The Hon. Dr MEREDITH BURGMANN: Other inquiries were the 1978 New South Wales Joint Parliamentary Committee on Drugs, the Durick inquiry; the 1979 South Australian Royal Commission into the Non Medical Use of Drugs, the Sackville inquiry.
Reverend the Hon. F. J. Nile: They are all out of date.
The Hon. Dr MEREDITH BURGMANN: They go right up to the 1997 royal commission, so do not tempt me. Other inquiries were the 1979 New South Wales Royal Commission into Drug Trafficking, the Woodward inquiry; the 1980 Australian Royal Commission of Inquiry into Drugs, the Williams inquiry; the 1981 New South Wales Committee of Inquiry into the Legal Provision of Heroin and other possible methods of diminishing crime associated with the supply and use of heroin, the Rankin inquiry; the 1981 Senate Standing Committee on Social Welfare, the Walters inquiry;
the 1982 Royal Commission into Drug Trafficking, the Stewart inquiry; and the 1982 Royal Commission into the Activities of the Federated Ship Painters and Dockers Union, the Costigan inquiry, which was a ripper. It was started by the Opposition but ended up catching a whole lot of crooked Liberal politicians.
I shall mention also the 1984 Western Australian Select Committee inquiry, the Hill inquiry; the 1985 Committee of Review into Drug and Alcohol Services in New South Wales, the Kerr inquiry; the 1985 Report on the Non-Government Drug and Alcohol Services System of Lansley, Hayes and Storer; the 1989 Commission of Inquiry into Possible Illegal Activities and Possible Police Misconduct, the Fitzgerald inquiry; and the 1989 Report of the Joint Parliamentary Committee on the National Crime Authority - Drugs, Crime and Society, the Cleeland inquiry. Cleeland was also a member of our committee. As people inquire into drugs they become interested in drug law reform.
Other inquiries were the 1991 Australian Capital Territory Select Committee on HIV, Illegal Drugs and Prostitution - Second Interim Report: "Feasibility Study on the Controlled Availability of Opioids" - August 1991, the Moore inquiry; the 1991 Australian Capital Territory Select Committee on HIV, Illegal Drugs and Prostitution - Third Interim Report: "Marijuana and Other Illegal Drugs", October 1991, the Moore inquiry; the 1994 Criminal Justice Committee Report on Cannabis and the Law in Queensland - June 1994, the O’Regan inquiry; the 1994 Report of the Task Force on Cannabis, National Drug Strategy September 1994 of Ali and Christie; the 1995 Select Committee on the Controlled and Illegal Use of Drugs of Dependence in South Australia; the 1995 Report of the Task Force on Drug Abuse in Western Australia entitled "Protecting the Community", by Daube; the 1995 Wood Royal Commission Interim Report; the 1996 Report of the Australian Capital Territory Heroin Pilot Task Force - January 1996, of Waller; and the 1996 Victorian Premier’s Drug Advisory Council - April 1996, of Pennington. Even a conservative appointee such as Pennington suggested the necessity for drug law reform and supported the Government’s position on marijuana.
The Hon. R. S. L. Jones: It was also supported by Jeff Kennett.
The Hon. Dr MEREDITH BURGMANN: As the Hon. R. S. L. Jones points out, it was also supported by Jeff Kennett. The last inquiry was the 1997 Wood Royal Commission into the New South Wales Police Service. One major recommendation of that commission was that drug law reform would change the way in which drugs brought about corruption in the New South Wales Police Service. All those inquiries mean nothing to the Opposition, which still believes that young people should go to gaol for possessing small amounts of marijuana. It is not true to say that citizens are not sent to gaol for having small amounts of marijuana. I keep quoting the tragic case of Mrs May.
The Hon. D. F. Moppett: But only one. You do not quote too many more.
The Hon. Dr MEREDITH BURGMANN: I can quote a friend of mine who was sent to gaol for six months and who was greatly scarred by that.
The Hon. D. F. Moppett: When?
The Hon. Dr MEREDITH BURGMANN: About three years ago. We know that last year seven people were sent to gaol for having small personal amounts of marijuana.
Reverend the Hon. F. J. Nile: Were they for supply?
The Hon. Dr MEREDITH BURGMANN: No, they were small personal amounts. If they have enough to be classed as a dealer, they are charged with dealing.
Reverend the Hon. F. J. Nile: No, they are not. That is the whole point. You do not know how the law works.
The Hon. Dr MEREDITH BURGMANN: Reverend the Hon. F. J. Nile can believe everything is a conspiracy also. This situation brought about the formation of the parliamentary group for drug law reform, which covers politicians of all parties and over all States. I am pleased to inform honourable members opposite that as well as those I have mentioned, the Hon. John Gorton and the Hon. Rupert Hamer are members of that committee, as are other important and successful people from independent parties and the Australian Labor Party. I shall not go into the number of people who over the last few months have spoken out in favour of drug law reform. It is heartening that the tide has turned and the public is now seeing it as an issue for discussion. Even the head of Interpol and several police commissioners in Australian States have recommended drug law reform. I urge the House to reject the old-fashioned, fuddy-duddy "Lock them up and throw away the key" primitive policies of the Opposition and support this sensible piece of legislation.
Reverend the Hon. F. J. Nile: On a point of order. We have been very patient while the honourable member has continuously broken Standing Order 81, which states:
No Member shall digress from the subject matter of any Question under discussion; and all imputations of improper motives, and all personal reflections on Members shall be deemed disorderly.
I find the constant references to members wanting to throw young people in gaol for just smoking marijuana an imputation of improper motives and a personal reflection on me and other members of the House. I ask the honourable member to desist from doing that because, as an academic, she knows she is misrepresenting us deliberately. I ask her to withdraw it.
The Hon. Dr MEREDITH BURGMANN: Is that a point of order?
Reverend the Hon. F. J. Nile: It is a point of order. I could ask you to withdraw it but it is too complicated, so I just ask you to stick to the facts and not misrepresent us.
The Hon. Dr MEREDITH BURGMANN: On the point of order. I would argue that Reverend the Hon. F. J. Nile does not have a point of order on the ground that the legislation is seeking not to send people to gaol for small amounts of marijuana and honourable members who will vote against it ipso facto are seeking that they be sent to gaol. My argument is intrinsic to the statements I have been making.
Reverend the Hon. F. J. Nile: Further to the point of order. The Hon. Dr Meredith Burgmann has changed her language: she originally said smoking of marijuana and then she said possession of small quantities of marijuana. Obviously a lot of young people are just smoking marijuana. I do not want to ask her to withdraw her comment because it is too complicated, but I ask her to stop saying it.
The Hon. Dr MEREDITH BURGMANN: Further to the point of order. I am not sure how people can smoke marijuana without possessing it.
The DEPUTY-PRESIDENT (The Hon. D. J. Gay): Order! I do not uphold the point of order. However, I suggest that the Hon. Dr Meredith Burgmann moderate her language. The member is perilously close to reflecting on other members by imputing improper motives to them.
The Hon. Dr MEREDITH BURGMANN: I am happy to hear that Reverend the Hon. F. J. Nile will support our legislation.
Reverend the Hon. F. J. Nile: On a point of order. I totally oppose the legislation - I have been misrepresented by the Hon. Dr Meredith Burgmann again. This is not a trivial matter; it is a serious matter. The Hon. Dr Meredith Burgmann said that I support the legislation: I do not support it.
The DEPUTY-PRESIDENT: Order! No point of order is involved. Reverend the Hon. F. J. Nile will have an opportunity to speak to the bill at a later time.
The Hon. ELISABETH KIRKBY [9.41 p.m.]: The Drug Misuse and Trafficking Amendment Bill amends the Drug Misuse and Trafficking Act 1985 to remove custodial penalties for possession and use of small quantities of cannabis, cultivation of small quantities and possession of implements for the administering of cannabis, such as water pipes, chillums, et cetera. Statistics prove that only a small number of offenders who are caught with small quantities of marijuana receive gaol sentences. However, if a magistrate wants to make an example of someone, for whatever reason, it is possible for the offender to be sent to gaol for possession, even for a first offence. In fact, quite recently two young first offenders received gaol sentences of six months. Such sentences are inappropriate because they expose people to the prison system and culture, which could ruin their lives. The Daily Telegraph of 5 November quoted the Prime Minister, John Howard, as follows when he announced his drug strategy:
Gaoling minor offenders only allows them to pick up crime skills from more serious offenders turning them into hardened criminals when they are released.
The bill will remove the penalty of imprisonment and, in some cases, reduce monetary penalties for the possession and use of small quantities of cannabis. The bill does not change the law in relation to supply - that is, selling small quantities. That offence will still carry a fine of 50 penalty units or two years imprisonment or both - the offence is under section 25 and the penalty is under section 30 of the Drug Misuse and Trafficking Act 1985. I do not agree with the Government’s definition of "small quantity", which is defined in section 3 of, and schedule 1 to, the Act to be:
cannabis plants 5 plants
The maximum fine for possession and use of cannabis, or possession, use, sale or display of water pipes is 20 penalty units or $2,200. The maximum fine for cultivation or possession of a small quantity
of plants under proposed section 18A(1) is a fine of 50 penalty units or $5,500. The Government is presenting this bill as a moderate step forward in drug law reform. Young people are particularly vulnerable in prison. Obviously, young people who are sent to gaol come into contact with hardened criminals. The financial cost of accommodating in prison such low-risk offenders is great, and cannot be justified. The bill does not legalise, nor does it decriminalise, marijuana; it simply removes gaol as a sentencing option. A lot of misinformation has been peddled about this legislation. The bill removes gaol as a sentencing option. On 10 November I received a letter from Major Brian Watters, of the Salvation Army Rehabilitation Services Command. He and I do not agree on drug policy. However, even Major Watters made the following statement:
cannabis leaf 30g
cannabis oil 2g
cannabis resin 5g
People in this State believe that this bill decriminalises Marijuana.
. . . this is not the intention of the bill -
Reverend the Hon. F. J. Nile: But it is the perception.
The Hon. ELISABETH KIRKBY: A number of people hold that perception because members of the National Party in another place, led by certain members of the media, made wildly extravagant statements that made people believe that the bill would decriminalise marijuana - and it does not. Opposition members, particularly those of the National Party, should have the honesty to admit that this bill will not decriminalise or legalise marijuana - it does not. The National Party has been running a campaign coloured by hysteria and misinformation.
The bill removes the gaol sentence for possession of small quantities of marijuana, but offenders can still be convicted of a criminal offence. The penalties and fines will be sizeable in some cases and a criminal record will be attached to the person if so ordered by the magistrate. The standard argument put forward by the opponents of the bill is that the use of marijuana inexorably leads to the use of hard drugs; that every person who tries marijuana will eventually use heroin or other hard drugs. That is not true. However, it is true that if people buy their marijuana from a dealer they are given the opportunity to buy other drugs. People who buy drugs from drug pushers deal with a criminal element of society - an element that will actively persuade them to use other drugs.
I had intended, and still intend, to support the bill. But I have a number of reservations, one of which relates to the definition of a small quantity of cannabis plants. I intend to move an amendment to reduce that number. The bill states that a small quantity will be defined as five cannabis plants, but it does not define the size of those plants. It does not state whether they will be small plants or six-foot plants. In conversation when I told the Hon. I. Cohen that it had been said that five plants could constitute a trafficable amount of cannabis, he agreed; he said it could be a trafficable amount. If they are very big plants, the amount of leaf on them would be so great that the cannabis could be sold on. That is exactly the reason I propose that the number of plants be reduced from five to three. If that occurred the legislation would truly be dealing with a small number of plants and a small quantity of marijuana.
The Law Society wrote to me stating that it was in favour of the bill, but suggested that the amended penalties were too high. It stated that the penalties in South Australia and in the Australian Capital Territory should be a guide. In those jurisdictions fines range from $50 to $150. The Law Society suggested penalties of the order of five penalty units - $550 - for the offences. The penalties set by the Government in this bill range between $2,200 and $5,500. Admittedly, those are the maximum penalties and it is quite possible that some magistrates would not impose them. The first amount is for possession or use of small amounts of cannabis, or possession, use, sale or display of water pipes. The second amount is for the cultivation or possession of five plants. The amendments I propose in the name of the Australian Democrats will remove the definition of small quantities of cannabis plants, as referred to in proposed section 18A, and replace it with "not more than three plants".
I propose also to move amendments to make the fine commensurate with the reduced number of plants, and to give parity with the other defined small quantities of cannabis leaf, cannabis oil and cannabis resin. The Democrats’ amendments will reduce the fine for possession or cultivation of three plants provided for in proposed section 18A to 20 penalty units, or $2,200. I am proposing these amendments in the hope that the initiative of the Government to remove the gaol sentencing option stands. If the penalties for possession of five plants, as proposed in the bill, were to remain at $5,500 the offenders might get into financial difficulty and at that time would end up in gaol for the non-payment of a fine. Obviously, this would defeat the spirit and the purpose of the bill.
I bring to the attention of honourable members a recent case reported in a newspaper in the area in which I live, which is Wagga Wagga. Recently in Wagga Wagga Local Court a person was found guilty of having in his possession five grams of cannabis leaf and 20 grams of seeds. The man was convicted and fined $100. However, a criminal conviction was recorded against him, with all the penalties that will imply for his future life and future employment. It would appear from this case that even magistrates in country areas are mindful of the minor nature of these offences, and they adjust their sentences accordingly. My amendment will reinforce the stand already taken in the court system under the present Act. I shall now refer to a statement in a press release dated 6 November 1977 made by Reverend the Hon. F. J. Nile on the letterhead of the Christian Democratic Party. Under the heading of "Carr’s ALP deceptive pot bill - first step to legalisation" he said:
The pro-drug lobby, led by the so-called Drug Reform Foundation, the Green Party, and the Australian Democrats, have adopted the deceptive policy of "GRADUALISM" to manipulate public opinion.
I point out, for the information of members of this House and for the benefit of Reverend the Hon. F. J. Nile, who stated in the press release that the pro-drug lobby is being led by, among others, the Australian Democrats, that that is simply untrue. I seek leave to table the policy of my party in relation to drugs entitled "Drugs: Abuse and Reform" for the information of honourable members.
Reverend the Hon. F. J. Nile: Do you support the Drug Reform Foundation?
The Hon. ELISABETH KIRKBY: This is not the Drug Reform Foundation. It is the policy of the Australian Democrats.
Reverend the Hon. F. J. Nile: Do you support it?
The Hon. ELISABETH KIRKBY: It is not the Drug Reform Foundation.
Reverend the Hon. F. J. Nile: But you support it, don’t you?
The Hon. ELISABETH KIRKBY: The Australian Democrats do not support the Drug Reform Foundation. I am trying to explain at some length so that I can refute the totally untrue statement made in a press release on 6 November 1977 by Reverend the Hon. F. J. Nile about my party. Honourable members will note that the Democrats first objective is to reduce and ultimately arrest drug abuse. That runs contrary to the assertion made by Reverend the Hon. F. J. Nile about the Australian Democrats in his press release. The honourable member may also notice that listed among the Democrat objectives is to destroy entrenched corruption in society, in bureaucracy and in government, an objective I should have thought Reverend the Hon. F. J. Nile, as a Christian, would be inclined to fully support.
I also point out that this has been official Democrat policy for almost a decade. The findings of the Wood royal commission seem to add weight to the opinion that our objectives appear to be on the right track. But this debate is all about how we meet those objectives. Let us think about it for a moment. Gold is currently hovering at around $US310 if one is selling. An ounce of marijuana is selling on the streets of Sydney for anywhere from $A400 to $A600 per ounce of the very high grade, hydroponically grown, high tetrahydrocannabinol - THC - varieties. Why is it worth so much? Because it is illegal and the demand for it is high. Price goes up due to demand and to compensate for the risks associated with the smuggling of marijuana around the country, the costs and risks borne by night flights into the country by light aircraft under the radar from Papua New Guinea where marijuana can be grown apparently with little interest from some locals and then transported from PNG to any number of isolated airstrips in far North Queensland.
The imposition of draconian penalties for marijuana use will have the opposite effect to reducing drug abuse and harm minimisation, particularly among young people. The longer young people experience the excitement of doing something naughty and risky with friends, the more they are likely to be encouraged to use marijuana, and the prices are pushed up into the bargain. A youthful dalliance with marijuana is by no means uncommon. I venture to suggest that the vast majority of users eventually get bored with the culture of marijuana use, or they use it only very occasionally. The problem with making possession and cultivation of small quantities of marijuana illegal is that it drives the sale and use of the drug underground and can drive young people out of their usual circle of acquaintances and friends into the waiting arms of the powder pushers - the people with cheap and plentiful supplies of hallucinogens and what should be schedule drugs of addiction - who sell them at high prices.
A criminal record for using marijuana also means that a young person may be denied a future career as a teacher, or from travelling overseas to visit some countries. Using this sledgehammer
approach to crack a walnut teaches young people to despise the law and the parliaments and political parties that stupidly appear to be trying to outdo each other in their misguided quest to turn corrective services into an industry second to tourism. Reverend the Hon. F. J. Nile may well be sincere about his zero tolerance push for drug control, but he is misguided in his approach and, by advocating such a tough stance, he is actually increasing the profits of the very people he seeks to put out of business by driving them further underground.
Reverend the Hon. F. J. Nile: Do you believe in legalising marijuana?
The Hon. ELISABETH KIRKBY: He is also helping to encourage circumstances that are ripe for corruption in the police force, something that Justice Wood made a point of highlighting in his report. By allowing people to grow a small amount of marijuana for personal use we can keep young people out of the orbit of the powder pushers, who are without doubt the greatest threat to the wellbeing of our young people. Reverend the Hon. F. J. Nile, by way of persistent interjection, which I ignored at the time, said that the Australian Democrats are determined to decriminalise marijuana.
Reverend the Hon. F. J. Nile: Are you in favour of legalising marijuana?
The Hon. ELISABETH KIRKBY: Reverend the Hon. F. J. Nile asked me whether I was in favour of decriminalising the use of marijuana. I am not.
The Hon. R. S. L. Jones: It is Democrat policy.
The Hon. ELISABETH KIRKBY: As is usual with the Australian Democrats, I am allowed to vote according to my conscience. The Democrat policy states:
The personal use of marijuana will be fully legalised, as for tobacco and alcoholic beverages.
I do not support that policy and my party knows that I do not. This bill does not decriminalise or legalise marijuana; that is why I am supporting it.
Reverend the Hon. F. J. Nile: My press release was speaking of the requisite policy of the Democrats.
The Hon. ELISABETH KIRKBY: Reverend the Hon. F. J. Nile goes on like a stuck gramophone record; he does not allow other honourable members to speak. He would have plenty opportunity to speak, if only he would let other people have a fair go.
Reverend the Hon. F. J. Nile: You said that I misrepresented you in the press release. You attacked me and then you just agreed that my statement in the press release was correct.
The Hon. ELISABETH KIRKBY: The press release of Reverend the Hon. F. J. Nile is not correct. The objectives of the Australian Democrats are as follows:
•To reduce and ultimately arrest drug abuse.
•To maintain strict government control over the supply and distribution of all drugs.
•To eliminate the illicit supply of drugs . . .
The cultivation of Nicotiana tabacum and Cannabis sativa will be strictly regulated, and the regulations will be enforced . . .
The cultivation of Cannabis sativa for commercial gain will be subject to a public enquiry which will examine the possible effects of its cultivation, sale and distribution. The feasibility of government ownership and control of the tobacco and marijuana industries will be examined . . .
The sale of tobacco and marijuana products and alcoholic beverages to minors will have severe penalties introduced and strictly enforced.
Due to the risk of contracting tongue, throat or nasal cancer through the use of snuff and associated forms of tobacco, the distribution of such products will be banned.
It is a misrepresentation to attempt to simplify our policy, which has been quite carefully thought out, and to say that the Australian Democrats have adopted a deceptive policy of gradualism to manipulate public opinion. I seek leave to incorporate that document in Hansard.
Leave not granted.
The Hon. ELISABETH KIRKBY: I sought leave to incorporate the document. That leave was granted by the Leader of the Government and by the Hon. J. F. Ryan. Once again Reverend the Hon. F. J. Nile has denied me leave to incorporate a document.
Reverend the Hon. F. J. Nile: Table it.
The Hon. ELISABETH KIRKBY: I want that document incorporated in Hansard.
The DEPUTY-PRESIDENT (The Hon. J. R. Johnson): Leave has been denied.
The Hon. ELISABETH KIRKBY: I make it clear that, once again, the Democrats have been denied leave by the so-called Christian Democratic Party to incorporate material in the public record. I have received a letter written by Professor Lawson, a professor in the School of Health Services Management at the University of New South Wales, on the reform of cannabis laws. That letter, which is addressed to the Attorney General, states:
The purpose of this letter is to offer support to the parliament in an effort to bring common sense and the concept of "least harm" to the drug field. There is abundant experience that incarceration in prison for even brief periods is harmful to the prisoner and also to our society. It can be argued that prison should only be used to protect society from dangerous persons and that other alternate penalties, including public humiliation are preferable and more effective penalties.
These comments are based on personal experiences as well as published research as 40 years ago I taught at Pentridge and more recently visited NSW gaols in my then role as the officer in charge of the NSW Department of Health’s methadone program from 1984 to 1987.
Cannabis does cause harm, in particular it reduces driving ability, and obviously no-one wants airline pilots to be puffing on a cannabis joint during take-off. The letter further states:
However this harm is probably of lesser magnitude than tobacco and alcohol abuse and it is wrong to base laws on outdated medical opinion.
He then quotes from an article entitled "The health and psychological consequences of cannabis" that came out of a 1994 national drug strategy monograph series number 25, which gives an excellent overview of the relationship between cannabis and health. The final paragraph of his letter states:
. . . I understand that where laws relating to cannabis use have been modified within the context of the "least harm" approach, the use of cannabis has fallen. Presumably this may be because the excitement of doing something "illegal" but not sinful or harmful to others has been removed.
A media release by the Doctors Reform Society on 3 November 1997 relating to the Howard strategy on drugs states:
The idea that policing and education will solve the problem is simply absurd. It is the same "just say no" policies which have failed so spectacularly and expensively in the USA.
This approach will buy $90 million worth of votes but make precious little difference to the drug trade.
The document further states:
Drug taking reflects a lack of opportunity for young people and this money could better be used helping them get a job than on this window dressing.
We ask that journalists plot the street price of heroin on a graph. If it changes, plenty is getting through the system, if it rises, it just means that there are more muggings and stolen videos per hit.
We believe the existing agencies know more about trading heroin than new private operators, that Methadone should be used and that the heroin trials should be re-examined.
I agree with that statement. It has been said, particularly by the new parliamentary group and by some members of the Labor Party, that the so-called harm minimisation program is encouraging young people to take drugs and is a totally wrong approach that we should not be supporting. Last week I received a copy of a document, as I am sure did the Hon. Dr Marlene Goldsmith, from the New South Wales Users and AIDS Association, NUAA. As members of the Standing Committee on Social Issues we took evidence from NUAA. It is the type of document that has been prepared by the New South Wales health service and lists every drug one could possibly imagine - acid, speed, crack, cocaine, depressants, stimulants, hallucinogens, minor tranquillisers, prescription pills, nitrous oxide and, of course, cannabis. The document is given to people who come to NUAA for advice or to injecting drug users who attend for needle exchange. The information young people are being given in this document about the use of cannabis is as follows:
Other possible complications that heavy smokers may face include:
•Increased risk of bronchitis, lung cancer and respiratory diseases (you can reduce the risks by mulling up with less tobacco)
•Interference with sexual & hormonal production, frequent users can experience a lowered sex drive, lower sperm count and irregular menstrual cycles.
•Psychological disturbances. Although rare, Cannabis can bring on a psychotic episode. This is more likely if the person already has pre-existing or previously un-diagnosed mental health issues.
•Dependence is very possible with continuous use and can lead to mild to severe (depending on how much you use), withdrawal which usually consists of; insomnia, agitation, restlessness, irritability, depression, tremors, anxiety, sweating and over the top jumpiness.
There has been a substantial amount of research done on whether cannabis is harmful . . . It is generally thought that with occasional use, it is no more dangerous than socially acceptable drugs like alcohol & cigarettes.
The document also states about the use of cannabis:
It also seems that heavy users may experience decreased concentration, memory and learning abilities as well as a change in motivation and drive.
I cannot see anything in that document that suggests that cannabis is harmless. In fact, it suggests that there are dangers with the use of cannabis.
The Hon. J. F. Ryan: It does not suggest that it is very harmful. It says that it will make you a bit irritable.
The Hon. ELISABETH KIRKBY: The Hon. J. F. Ryan has said by way of interjection that the use of cannabis is not harmful, it only makes a person irritable. But the document also explains that people can have over-the-top jumpiness and can suffer from depression. In other words, it is not a harmless, lovely drug that makes people feel euphoric; it can make them feel extremely miserable and depressed. All of these effects are pointed out even by agencies that opponents to drug minimisation believe are encouraging the use of cannabis, and also the use of other drugs, by promoting needle exchange and informing people about the safe way to inject so as to prevent the spread of HIV-AIDS and Hepatitis C.
In fact, the more I read this book the more it has become obvious that probably no drug can be used without some harm to the individual. I refer to this book because it is extremely annoying when some members suggest that harm minimisation programs and drug reduction programs that are being set up by this Government through the New South Wales Department of Health and associated agencies are creating an atmosphere that drugs are acceptable in society. They are not creating that atmosphere.
Reverend the Hon. F. J. Nile: They are.
The Hon. ELISABETH KIRKBY: I suggest to Reverend the Hon. F. J. Nile that instead of making ridiculous statements like that he read this and other material that is being put into the hands of young people. They do not convey a message that drugs are harmless. As the Hon. Dr Meredith Burgmann said, we should move away from the 1950s argument of zero tolerance, that people should say no, and of imprisonment. The Leader of the Opposition in another place said that a person will be sent to prison for 25 years for a first offence -
The Hon. J. W. Shaw: That seems a bit over the top.
The Hon. ELISABETH KIRKBY: I have read the debate in Hansard and he said that the penalty will be 50 years imprisonment for a subsequent offence. I have read the whole of the debate in Hansard and, clause by clause, the implications of this bill were exaggerated for political purposes by members of the Opposition.
The Hon. J. W. Shaw: It is hard to believe but I think that it is true.
The Hon. ELISABETH KIRKBY: I will go and get you the Hansard. A problem has been brought to my attention in respect of sections 11, 11A and 12. I put it on the record so that in his reply the Attorney General can explain the matter to the House. It has been suggested to me that although syringes and needles are exempted from section 11 by sections 11(1)(a) and 11(1)(b), which deal with the possession of equipment for the administration of prohibited drugs, a person who uses a syringe to self-administer the drug commits an offence under section 12. However, it is also an offence to possess a spoon under section 11 if it is proved that it was used to administer a prohibited drug. Further, it has been put to me that the offence of possession of other equipment such as bongs and chillums under section 11(1) runs counter to the Government’s policy of harm reduction because these implements could be used to administer the same powder drugs as a syringe. So if the Minister and the Government intend to get rid of section 12 and section 11, they might also scrap section 11A as well because it deals with the sale, supply and display of water pipes.
This is an anomaly in the bill, and I would be grateful if, before we get to the Committee stage, the Attorney General could address this anomaly. To buy or make a bong is much easier than to get hold of a syringe. If the offences of administer or use are dispensed with, it is pointless to have possession as an offence. The Government is opening up a can of worms, and I would like it to look into the matter before we deal with the bill in Committee. I will support a number of the Green amendments. Other Green amendments, I am told, facilitate the wider amendments to enable the offences to be handled by way of an infringement notice and a fine of only $100. The Greens amendment purports to enable offences termed "simple cannabis offences" to be dealt with by way of an infringement notice. If the fine levied is paid within 60 days, the offender is regarded as not to have been convicted of the suggested simple cannabis offence.
My amendment would reduce from five to three the number of plants that can be held by an individual for personal use. I cannot support the Greens amendments; they would amount to decriminalising the use of marijuana. I do not believe that is proper, nor does the Government. The Government is not decriminalising; all it is doing is
preventing offenders who have been caught with small quantities of plants, leaf or resin from being sent to gaol for that possession. It does not mean that a conviction will not be recorded against them for the possession or personal use of the leaf, resin or plant. The Government’s response to this matter is responsible, and I support the bill.
Debate adjourned on motion by the Hon. Dr Marlene Goldsmith.
SYDNEY ORGANISING COMMITTEE FOR THE OLYMPIC GAMES AMENDMENT BILL
APPROPRIATION (REFUNDS AND SUBSIDIES) BILL
BUSINESS FRANCHISE LICENCES (REPEAL) BILL
PETROLEUM PRODUCTS SUBSIDY BILL
Bills received and, by leave, read a first time.
Suspension of standing orders agreed to.
The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [10.27 p.m.]: I move:
That this House do now adjourn.
The Hon. PATRICIA FORSYTHE [10.27 p.m.]: During the recent parliamentary break I had the opportunity to visit a most excellent preschool at Alexandria called Wunanbiri. Wunanbiri means "sharing" and "equality". The Wunanbiri Preschool is a non-denominational organisation founded by the late Sister Mary Oliver Kane of the Sisters of Mercy, Parramatta, in 1971. Wunanbiri has recently relocated from old buildings at Surry Hills to new premises that form part of buildings on the site of Cleveland Street High School. The preschool currently caters for 30 children between three years and five years, five days a week. Thus the lucky children who attend get the benefit of 30 hours per week at the school. The program at Wunanbiri is designed to meet not only the developmental needs of children but their health and medical needs as well.
This includes weekly visits from a speech pathologist and fortnightly visits from a doctor from the Aboriginal Medical Service. The children’s hearing is tested each term and referrals are made to the medical service. Regular visits are also made from the Sydney Eye Hospital and the dental clinic. These support services and other tailored programs aim to meet the needs of the many Aboriginal children with special needs. During my visit I travelled on the school bus, which signage showed was supplied by the Variety Club. Children were collected at Surry Hills, Waterloo, Darlington and Redfern, notably from Eveleigh Street and The Block. Children also attend from Marrickville, Mascot and Woolloomooloo. Wunanbiri has a unique and firm place in the Aboriginal community. Its goal is to foster self-esteem and a positive cultural identity as part of each child’s growth and development in order to help each individual achieve his or her full potential.
An important focus of the preschool’s work is making the transition to infants school a positive one. During my visit I saw the children enjoying breakfast and then engaging in positive outdoor play in the grounds of the school. Each day the children are given a hot lunch and morning and afternoon tea. I highlight the positive work of the school against the background that funds are needed by the school to support its excellent work. I hope its work will be noted by local businesses seeking a community focus or service clubs looking to expand their community service work. I hope that people who find perverse pleasure in denigrating the Aboriginal community will stop and focus on the positive achievements that so many are making.
Wunanbiri receives some funding from the Department of Community Services, though this does not even cover all staff costs. It also has the benefit of interest on a modest capital investment made possible by two bequests. There is a small but active management committee which supports the school with fundraising. The school’s goal is to have funds to provide a nursery for children up to two years of age, as well as to be able to expand to provide support for more three-to-five-year-old places. The school has many basic furniture and equipment requirements such as gym mats, bikes, bookshelves, a photocopier, easels, et cetera. I know the school would be delighted if support were received for its work. I commend the director, David Watkins, the management committee and its staff for their work, and I wish them well for the future.
The Hon. I. COHEN [10.30 p.m.]: I wish to speak about the Eastern Distributor: an assault on urban air quality. The Greens and many community
groups have expressed grave concerns about the environmental and economic performance of the Eastern Distributor. In particular, the Government was warned of grave risks associated with air quality performance. The Government’s Environment Protection Agency and the Department of Health also expressed similar concerns. Despite these warnings, the Government approved the Eastern Distributor. Construction has now begun on this private motorway, cutting a swathe of destruction through eastern Sydney.
Tonight I will expose a number of serious deficiencies in the air pollution studies used in the environmental impact assessment process. Correction of these errors leads to one inescapable conclusion: the Eastern Distributor will be an air pollution disaster with grave health consequences. These problems are not confined to the Eastern Distributor. Clear inadequacies have also emerged in the assessment of the air quality impacts of the proposed M5 East motorway. The fundamental problem is with the planning process itself: there is a systematic failure to achieve world’s best practice in environmental assessment, free from commercial or political pressures. Noel Child is a respected authority on environmental science and health risk assessment. He is an acknowledged researcher in air quality and atmospheric processes and is a research fellow at the University of Technology, Sydney. In his paper entitled "Eastern Distributor Tollway: Critical Air Quality and Community Health Impacts" he concludes:
. . . the construction of the Eastern Distributor must be seen as cavalier in relation to air quality and community health impacts.
Mr Child found that the methodology for assessing the likely levels of nitrogen dioxide resulting from the motorway was fundamentally flawed. It was based on unrealistically low chemical conversion rates from oxides of nitrogen emitted by vehicle exhausts into the atmosphere. Consequently, there is a real risk that the environmental impact statement has seriously understated nitrogen dioxide concentrations, perhaps by a factor of two for some locations. Sydney has an acknowledged nitrogen dioxide problem, and, even based on the discredited figures in the EIS, nitrogen dioxide levels only just meet the acceptable standards.
Mr Child concludes that the nitrogen dioxide projections should have been presented as unacceptable, consistently above the criteria set by leading international authorities. The levels of nitrogen dioxide generated by the Eastern Distributor could lead to significant and measurable increases in asthma attacks treated both by emergency medical services and by hospitalisation. Mr Child also found that the treatment of P10s in the EIS was superficial and inadequate. These small particles play a pivotal role in the health impacts of air pollution and, in particular, of asthma.
The EIS also ignores the known toxic or carcinogenic role of a number of common hydrocarbon air pollutants such as benzine, toluene, formaldehyde and butadiene, despite current international opinion and regulations to the contrary. These problems are compounded by the use of the obsolete traffic volume forecasts which were part of the Roads and Traffic Authority’s original 1996 EIS. The Department of Urban Affairs and Planning published a revised set of traffic forecasts in its 1997 environmental impact assessment, which are 30 per cent greater for a number of locations. Thus, if one believes the DUAP figures, air pollution at these locations would be 30 per cent greater than those predicted in the air quality studies. Concentration levels for many critical pollutants would be well over acceptable levels.
Thus, the clean bill of health given by the Minister for Urban Affairs and Planning to the Eastern Distributor during the environmental impact assessment process would seem to be an illusion. The air quality impacts of this motorway will be well outside those currently deemed to be acceptable in New South Wales. Air quality standards are being tightened as health studies increasingly demonstrate the vulnerability of our respiratory systems. Eastern Sydney is looking down the barrel of epidemics of motorway asthma and cancers. The health of the people of Sydney has been placed at risk by an environmental impact assessment process that has failed to resist the political objectives of the Government and the RTA and the commercial pressures of the construction lobby.
Only an independent re-examination of the environmental and economic performance of the Eastern Distributor can redress this failure. This must be based on internationally accepted air quality targets and world’s-best-practice methodologies and account for the impacts of other large motorway proposals. It must be performed independently of those consultants, construction interests and government departments and agencies involved thus far or any other group that stands to make financial or political gain from the project’s continuation. It must be transparent and publicly accountable. If this re-examination finds that the Eastern Distributor would add to the air pollution burden in a way that violates the internationally accepted standards, the project must be abandoned and the Government must pay the cost. It is better to have an
embarrassed government than to have hospitals full of the victims of motorway air pollution.
The Eastern Distributor represents a massive failure of public policy. It points to the need for strong and independent assessment and regulation of the development of large motorway projects. Indeed, as long as political and financial gain are allowed to blend into the environmental impact assessment process, the people of New South Wales will suffer. In the end, it comes down to this: will the Government find the integrity and courage required to honestly reassess this contentious motorway project and its impact on our health, or will it put political convenience ahead of the interests of the people of New South Wales?
CAMPBELLTOWN MEMORIAL PARK
The Hon. C. J. S. LYNN [10.35 p.m.]: I wish to refer to a proposal by the Central Hills Environmental Improvement Society for a cemetery and crematorium to be developed in the Central Hills area of Campbelltown. The proposal has the support of 10,688 petitioners as well as over 30 local religious and community groups. These include representatives from Muslim, Catholic and Anglican churches and various senior citizens organisations. The proposed development would be known as the Campbelltown Memorial Park. In 1995 the Campbelltown City Council called for the proposal to develop a cemetery and crematorium in the city area. I understand that a local company, Fadison Pty Ltd, responded to the initiative with a proposal to develop a section of land in the Central Hills area. I have inspected this area, which is isolated from residential and industrial areas and is located out of sight in a concealed valley within the Central Hills area.
The proposal was called for because cemeteries in the Campbelltown area have run out of space, and people are being forced to lay their loved ones to rest out of the area, creating great inconvenience for some and severe trauma for others. A woman in Campbelltown carries her husband’s ashes with her in the hope that she will find a place in the local area to meet her husband’s request to be buried in Campbelltown. When the proposal was first reviewed by Campbelltown City Council I understand that the area was confused with the protected Scenic Hills zone. This may or may not have been a deliberate attempt to mislead the public. If councillors voted against the proposal because they held the mistaken belief that the development was proposed for the Scenic Hills area, the mistake ought to be rectified and the matter submitted to council for reconsideration. If the public was deliberately misled by objectors who claimed that the area did lie within the Scenic Hills area, the councillors who voted against the proposal should be condemned.
I have examined the proposal and have inspected the land where the cemetery and crematorium is proposed to be located. It is clearly outside the boundaries of the Scenic Hills zone and is located within the Central Hills area. In my opinion it is an ideal location for a memorial park. I have written to the mayor of Campbelltown requesting that Fadison Pty Ltd be invited to resubmit its proposal to the council for reconsideration given the urgent need for such a development and the suitability of the proposed location within the Central Hills area. I urge all councillors in Campbelltown to seriously consider in their deliberations the needs of their community and the suitability of the location.
WAGGA WAGGA WOMEN’S HEALTH SERVICES
The Hon. ELISABETH KIRKBY [10.38 p.m.]: The Wagga Women’s Electoral Lobby wishes to express its concern about recent developments in the Greater Murray health area which it believes will adversely affect community health services for women in Wagga Wagga and the area it serves. The development that concerns the group most is the planned sale of all properties owned by the health department in Wagga Wagga, some of which house women’s health services. Whilst there may be some advantage in selling these properties, the group strongly objects to the proposed property sales. The properties house the women’s health clinic at 69 Brookong Avenue, which provides family planning services, pap smear tests, breast checks, a menopause clinic and pregnancy issues; the parenting centre at 71 Brookong Avenue, which provides a service to a high percentage of pregnant adolescents and high at-risk groups; Brookong House, the mother and baby unit, which provides a service to women with feeding and settling problems, and supports, counsels and assists women with post-natal depression; the sexual health clinic in Yabtree Street; and the Wagga Wagga women’s health centre at 8 Morrow Street, which is a non-government organisation that provides counselling, domestic violence services, health education, group activities and referrals.
The Wagga Women’s Electoral Lobby objects because the Government’s policy to sell these premises will leave the services vulnerable to market rent increases. Some services have been informed
that the new owners will not offer their premises for re-leasing. They have not been informed about how, when and where they will be relocated. No-one can say how the money for rental will be funded. Will it have to come out of an already decreased budget? Premises that are rented with already established services can be discontinued easily when staff leave or are not replaced. Women’s services in Brookong Avenue are functioning well. They are easily accessible, identifiable and established. The women’s health clinic has been relocated to 69 Brookong Avenue only in the past two years, after years of inadequate housing. The house is ideal, non-threatening, roomy, well set out and homely. It provides a model that is discreet but close to the infrastructure of the hospital, such as pathology, X-rays and stores.
Services operate well in their present location. Relocation will cause confusion and a downgrading of service, with resultant social problems. All services are already underfunded and underresourced. The Department of Health has invested money in these premises, for car parking to meet local council requirements, clinical rooms to meet health standards, heating and cooling, and wheelchair access. No community consultation has been undertaken about the planned sales and there has been no communication with staff who work in the premises. As is becoming the norm in the greater Murray health area, such important decisions are simply presented to all as a fait accompli.
Over the past 20 years the Women’s Electoral Lobby has worked and lobbied hard for women’s health services to be established in our community so that rural women are not disadvantaged. We are not prepared to see hard-fought-for gains diminished for economic, short-term gains. The resources spent on these services are a drop in the ocean of this area’s health budget, yet the benefits to women’s health standards, social wellbeing and personal growth are enormous. The Women’s Electoral Lobby asked me to make representations on its behalf to the Minister for Health, and I said that I would raise the matter during the adjournment debate. I trust that the Minister for Health will examine this matter, because women’s services are urgently needed. They should not be downgraded or discontinued.
The Hon. VIRGINIA CHADWICK [10.42 p.m.]: I raise an important issue that relates to an announcement made last week by the Attorney General: a new courthouse at Toronto. I listened with interest as he waxed lyrical about the virtues of this new courthouse. As a resident of the area I am well aware of the history of the matter, which dates back to 1980. Where to locate the courthouse has been a problem for the former Labor Government, the former coalition Government and this Government. The Attorney, with either a fine sense of humour or a lack of understanding of the history of the matter, failed to take the history into account when he visited Toronto with the local member to make this announcement.
I hope the Attorney can explain, perhaps before the House adjourns, how he intends police and court officials to transport criminals from the police station to the courthouse, across an already congested Carey Street - which is 127 arterial road. It was suggested to the local member that an overpass or tunnel could be built or that traffic lights could be installed. As the Hon. Patricia Forsythe, the Hon. J. H. Jobling and others who are familiar with the area would know, this is a busy and often congested road. The honourable member for Lake Macquarie, Jeff Hunter, when asked a similar question replied with remarkable honesty - and with a strange sense of grammar - "Well, there’s not a lot of options". The Attorney will spend $4.5 million on a much-needed courthouse yet the local constabulary will have to drive offenders 30 metres, across a road without traffic lights, from the police station to the new courthouse.
The Hon. J. W. Shaw: Is that unique?
The Hon. VIRGINIA CHADWICK: I would not have a clue whether it is unique, but in terms of an optimum solution, I would not have said it was a fabulous or a class-act solution. More than one police officer is required to transport charged felons. One is needed to drive the transport vehicle, and another is needed to mind the felon. They will be required to drive 30 metres across the road, drop the felon off at the courthouse, and then return later to collect the felon.
The Hon. J. W. Shaw: That is why the Liberals never provided the courthouse.
The Hon. VIRGINIA CHADWICK: It is true that it was a difficult question and that the Liberal Party and National Party did not provide the courthouse. However, this issue dates back to 1980, a time when I believe the coalition was not in government. Given that $4.5 million will be spent on this much-needed courthouse, what will be done to save the extraordinary waste of policemen’s time and money?
The Hon. J. W. Shaw: What is the alternative?
The Hon. VIRGINIA CHADWICK: You are the Attorney, and the Labor Party is in government.
NATIONAL PRAYER BREAKFAST
Reverend the Hon. F. J. NILE [10.47 p.m.]: I wish to share an inspiring event that took place last weekend which, unfortunately but perhaps predictably, was not mentioned in the media. On Sunday and Monday more than 650 Australian citizens gathered in the main hall of Parliament House in Canberra for the annual national prayer breakfast, the name given to a special event sponsored by the Federal Parliamentary Christian Fellowship, which represents members of all major political parties in the Federal Parliament. The program comprised two major events in which I was privileged to share. On Sunday night a combined church service was held which was supported by all the churches of Canberra and which all delegates attended. The guest speaker was Reverend Gordon Moyes, who gave an inspiring address on the theme of the moral crisis facing our nation and the church. In his address he said:
We need a moral and spiritual equivalent of a war to pull us together. Traditionally the church has delivered that sense of national cohesion and reconciliation. But is the church capable of delivering it today? Some mainline churches are divided over lack of commitment to the Scriptures as the only revelation of God upon which reconciliation can be built. Some churches are politically aligned and spokespersons speak to every issue along predictable ideological lines that are not supported by a majority of their members. Some churches are compromised politically and morally. The very organism that people should turn to in confidence is itself in crisis. These churches are showing signs of wear and tear and lack of direction.
While Reverend Moyes did not say so on that occasion, he was referring to the Uniting Church of Australia. He continued:
Our only hope lies in committed Christians, obedient to the scriptures, who pray for the governments and witness to their faith, and who are willing to live under the authority of the Word of God. Will our nation splinter or can individual Christians persevere with this message of reconciliation?
The message of reconciliation is from 2 Corinthians 5, in which the Apostle Paul said:
And all things are of God, who hath reconciled us to himself by Jesus Christ, and hath given to us the ministry of reconciliation.
Christians are ambassadors for Christ. In the current race debate the message of reconciliation is important. On the Sunday morning the guest of honour at the national prayer breakfast was the Governor General, the Hon. Sir William Deane. He always adds a great presence to such events. He was greeted with warm applause. It is obvious that his stature in our country is increasing every day. He is having a positive impact. The Deputy Prime Minister, Tim Fischer, gave the welcome address and the Treasurer, Peter Costello, read the scriptures.
The guest speaker was a controversial person, Mr Chuck Colson, who was special counsel to former President Nixon. He was converted before he went to prison and he went to the chief prosecutor in the Watergate case and confessed his offence; he said he would plead guilty. Of course the prosecutor was pleased to accept that plea and Chuck went to prison. Chuck has since built a strong ministry, the prison fellowship. He and many hundreds, if not thousands, of people actively work with men and women in prisons, particularly in the United States of America. The organisation is now operating in New South Wales and other States of Australia. It is having a miraculous effect on prisoners, to the extent that a number of them have been released from gaol and have returned to act in a chaplaincy role to help other prisoners. What he had to say was exciting. [Time expired.]
FOUNTAIN COURT ART EXHIBITION
The Hon. Dr MARLENE GOLDSMITH [10.52 p.m.]: I draw to the attention of honourable members an art exhibition that is currently on display in the Fountain Court, which they have no doubt noticed as they have walked to and from the Chamber. The exhibition is presented by the New South Wales Department of Corrective Services on the occasion of the inaugural Alexander Maconochie memorial lecture, delivered by Justice Nagle at Parliament House this evening. It comprises the art of inmates from the Long Bay Correctional Centre. Honourable members who take the time to look at the exhibition will be impressed by both its diversity and quality. It is only a small exhibition, but it is excellent. I spent some time this evening talking with the art teacher from Long Bay and the officer who was presenting the material. I was impressed with the display and the obvious level of commitment of the staff at Long Bay to this program.
I also learnt of the Boom Gate Gallery, a special art gallery showing inmate art and craft. It is open every Saturday and Sunday from 9.30 a.m. until 3.15 p.m. next to the Long Bay Correctional Centre on Anzac Parade, Matraville. The materials in the Fountain Court are not for sale, but those in the Boom Gate Gallery are for sale. I am delighted
to note that it has been in existence since 1992. It was obviously an initiative of the coalition Government, something in which we can take pride. I am delighted that the Government is continuing with this important work. It is ensuring that inmates at Long Bay have the opportunity to develop skills, talents and artistic abilities that they may not otherwise have had the opportunity to develop.
Motion agreed to.
House adjourned at 10.55 p.m.