The President (The Hon. Max Frederick Willis) took the chair at 11.00 a.m.

The President offered the Prayers.

Assent to the following bills reported:

Local Government Amendment Bill
State Records Bill

Bill received and read a first time.

Suspension of standing orders agreed to.

The PRESIDENT: I report the receipt of the following message from the Legislative Assembly:

Mr PRESIDENT

The Legislative Assembly desires to acquaint the Legislative Council that it has this day agreed to the following resolution -

That Robert James Murray Oakeshott be appointed to serve on the Regulation Review Committee in place of Barry William Rixon, discharged.

Legislative Assembly J. H. Murray
3 June 1998 Speaker

The Hon. A. B. Manson, on behalf of the Chairman, tabled the following reports:

Staysafe 41. Review of the Road Safety Situation in New South Wales in 1995

Staysafe 42. Review of the Road Safety Situation in New South Wales in 1996

Ordered to be printed.

Bill introduced and read a first time.

The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [11.12 a.m.]: I move:

That this bill be now read a second time.

I am pleased to introduce the Crimes Legislation Amendment Bill. The bill contains a package of reforms that are largely practical in nature and seek to remedy minor defects and anomalies that presently exist in the criminal law. The bill is another step towards fulfilling the Government’s commitment to providing a more responsive and effective criminal justice system. The proposals for reform which make up this bill come from a number of persons and bodies involved in the day-to-day administration of the criminal law. They include the Director of Public Prosecutions, the judiciary, the Sheriff of New South Wales and the Legal Aid Commission. I thank all of them for their contributions. Other reforms seek to remedy anomalies identified by the criminal law review division of my department. I hope that all members will agree that the reforms are not controversial, but are useful finetunings of the criminal justice system.

I turn now to the provisions of the bill. Schedule 1 amends the Bail Act 1978 to clarify the phrase "to appear before the court" in section 7 of that Act. Section 7 provides that an accused person who is granted bail in respect of a particular offence must enter into a bail undertaking and is entitled to remain at liberty in respect of the offence until the person is required to appear before a court, in accordance with the bail undertaking. A recent Court of Criminal Appeal case unanimously expressed the opinion that what constitutes "lawful custody" should be the subject of express provision in the Bail Act. This amendment seeks to do that. It provides that the time at which a person is required to appear before a court, and thereby submit to the custody of the court, is the time when the person’s matter is called at the court premises.

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Schedule 2 to the bill amends the Children (Criminal Proceedings) Act 1987. The effect of the amendment is to ensure that the District Court is able to deal with a breach of a recognisance or probation previously imposed by it when exercising its functions as the Children’s Court under section 33 of the Children (Criminal Proceedings) Act 1987. There is an anomaly in the present system whereby the District Court, having sentenced a child to a recognisance or probation order, does not have the clear power to terminate, reduce or vary any condition of the order in the event of a breach of the order. This amendment will extinguish that anomaly. The amendment to section 18 confers on the court that made the order the requisite power to deal with the person in the event of a breach. At the same time, the amendment to sections 40 and 41 will clearly enable, but not oblige, the Children’s Court to refer any application for breach proceedings to the court that made the order, to be dealt with by that court. This amendment does not create a new procedure; it simply adds clarity to an existing one.

The Crimes Act 1900 is amended by schedule 3. This provision abolishes the ancient common law rule, dating back as far as 1557, which grants immunity to a wife against prosecution for being an accessory after the fact to a felony committed by her husband. The current law in New South Wales is that a person who, knowing that a serious crime has been committed, gives an offender any assistance with the intention of enabling that offender to evade arrest, trial or punishment, is guilty of being an accessory after the fact to a felony. This ground of inculpation does not apply to a wife who has assisted her husband to evade justice, and thus she cannot be prosecuted for any assistance she may have given to her criminal husband.

A recent decision of the New South Wales Court of Criminal Appeal has made clear that this rule still exists at common law. In other words, were a man to murder a person, and were his wife, knowing of his crime, to help him conceal the murder by burying the body, she would not be able to be prosecuted for the offence. A comparable rule that a husband cannot be so charged has never existed. Nor does the rule extend to de facto couples. The rule dates back to a time when a wife was seen as a chattel of her husband and was expected to be subject to her husband in a way that is unthinkable today. Since wives are no longer expected to be subject to the autocratic rule of their husbands, the rule has no application in modern society.

Furthermore, it is wrong for citizens to entirely escape liability for serious crimes by way of explicit reliance on their marital status or gender. I hasten to add that the complete defence of duress is available to any person, including a wife, who is compelled to commit an offence whilst under duress. Schedule 4 makes a minor amendment to the Criminal Appeal Act 1912. The amendment to section 5A(1A) provides that the mode of referral of questions of law arising out of summary proceedings before the Supreme Court, the Land and Environment Court or the Court of Coal Mines Regulation, in their summary jurisdictions, may be dealt with by the Court of Criminal Appeal. This amendment will rectify an anomaly in the present system which establishes a different procedure for questions of law from these courts to be heard before the Court of Criminal Appeal.

The Criminal Procedure Act 1986 is amended by schedule 5. This is an important amendment to rectify an anomaly that currently exists in table 2 of that Act. Part 9A of the Criminal Procedure Act establishes a regime by which many indictable offences may be disposed of summarily, that is, before a magistrate. Under that part, table 1 offences are those offences that must be dealt with summarily, unless either the prosecutor or the defendant elects to have them dealt with on indictment. These are generally the more serious offences.

Table 2 offences are those offences that must be dealt with summarily, unless the prosecutor otherwise elects. The present amendment seeks to rectify an oversight whereby table 2 ancillary offences of attempts to commit an offence, or being an accessory before or after the fact to a felony, or aiding, abetting, counselling or procuring the commission of a table 2 misdemeanour, are not uniformly included in table 2. The result of this is that some offences of attempt and being involved indirectly in a table 2 offence committed by another person are wholly indictable, and therefore must be dealt with by a jury. That is so, even though a magistrate may deal with the actual commission of a table 2 offence. This amendment will solve that anomaly. It does not create any new offences.

The Criminal Procedure Act is also amended, by schedule 5, to enable the trial court, at the completion of a trial of an indictable offence, to deal with less serious related indictable offences that are capable of being dealt with summarily. Currently the trial court, under part 10 of the Act, can deal with related summary matters which arise from substantially the same circumstances which are the subject of the trial. Part 10 is amended to enable the court to deal with related indictable matters that are capable of being dealt with summarily. This measure
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will help to enhance court efficiency as the remaining matter will no longer require a separate relisting before the Local Court.

Finally, schedule 6 to the bill amends the Justices Act 1902. Section 48E currently provides that witnesses who are alleged victims of certain offences involving violence cannot be required to give oral evidence at committal proceedings except where "special reasons . . . in the interests of justice" are demonstrated. The section provides further, in relation to all other witnesses, that they cannot be required to give oral evidence at committal proceedings except where "substantial reasons . . . in the interests of justice" are demonstrated. Thus it can be seen that a simple distinction exists between the tests to be applied, based upon whether or not the witness in question is an alleged victim of a violence offence. An amendment made to the section in 1995 defined "offence involving violence" to mean an offence listed in section 48E(9), "except [such] an offence to the extent that it is listed in table 1 part 9A of the Criminal Procedure Act 1986".

A consequence of that amendment is that some alleged victims of violent offences, being offences listed in table 1, obtain less protection regarding committal proceedings than do alleged victims of violent offences which are wholly indictable or contained in table 2. That is because they can be compelled to give oral evidence where "substantial reasons", rather than the stricter standard of "special reasons", have been demonstrated. This amendment will fix that problem. From now on, whether the offence is wholly indictable, table 1 or table 2, "special reasons" will need to be shown in respect of all alleged victims of violent offences.

The balance of the provisions in the bill are consequential amendments and transitional provisions. Generally speaking, the transitional provisions follow the convention of avoiding retrospectivity wherever their effect is to alter a defendant’s substantive rights. Where substantially procedural amendments are able to operate retrospectively without that danger, that course has been adopted. I am sure that members will agree that the bill contains a constructive raft of small but important reforms to the criminal justice system that will assist in the more rational and efficient administration of justice. I commend the bill to the House.

Debate adjourned on motion by the Hon. J. P. Hannaford.

Debate resumed from 21 May.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [11.23 a.m.]: The coalition does not oppose the Courts Legislation Amendment Bill, which tidies up a number of provisions to enable more efficient operation of the courts. The Treasurer delivered the second reading speech on behalf of the Attorney General on 21 May 1998. He outlined all the provisions in the bill and no purpose would be served by my repeating his statements. However, I wish to draw to the attention of the Government a couple of matters for it to contemplate. Schedule 15 amends the Jury Act. I commend the Government for the amendment because I am aware of problems of employers threatening employees following their receipt of a jury summons.

The Government might contemplate including in the letters advising people of their selection for jury duty advice as to this provision so that it is clear that the employer would be committing an offence by threatening an employee who has been summonsed. Invariably the employee who has been called for jury duty takes the notification to his boss and says, "I have got this letter. What do I do?" The first reaction of the employer is to say, "Let us work out a way in which we can get you off jury duty because it will affect your employment if we do not." If the statement setting out the offence that can be committed by an employer is highlighted in the letter, employers will not make the sort of threats that we have become aware of. The second reading speech contains the following statement:

Whilst no court ought to have full control of the prosecution process, there is a need once proceedings are before the court for the court to deal with the matter under procedures which it can control and develop.

I believe that the Government is understating what should be the role of the courts in the management of the criminal justice statement. Several years ago when I was Attorney General the Attorney General’s Department put out a discussion paper dealing with the concept of judicial administration of criminal cases. The reaction to the concept could be described at its most modest as volatile opposition. Traditional criminal jurisdiction lawyers would not countenance any concept of judicial management of criminal cases. Many criminal division judges were also unhappy with the concept. I am pleased that at least among the judiciary that attitude has changed
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significantly: judges constantly say to me, "We have to be able to manage criminal cases right from the word go." That culture developed because judges saw what was happening with the judicial management of civil cases.

The concept of disclosure about experts in criminal cases will be developed. When we first referred to full disclosure about expert witnesses in civil cases there was legal outrage but now, after five years, that concept is embraced more. The quote from the second reading speech might be a statement for 1998, but I am almost positive that by 2000 the culture will have changed significantly and there will be judicial management of criminal cases - perhaps not to the extent that there is in California, but interventionist administration at that level will become necessary. I note that the Government proposes to move an amendment to the bill, which the Opposition supports, arising from representations by the Law Society. Members have received a fax from the New South Wales Bar Association which raised a number of matters. Whilst I have taken on board what the association said, I do not propose to pursue amendments to implement any of the proposals, and I should give my reasons. Proposed section 18A provides for the rehearing of arbitration to be limited to issues selected by the court. The Bar Association stated:

Proposed section 18A does not identify the matters which the Court or Registrar is to take into account in determining whether to direct a limited rehearing, or the scope of such a rehearing.

The Bar Association asked whether the court or registrar should be given some guidance. My view is that they should not. One should not constrain the exercise of that discretion by providing too much guidance, because experience shows that a little guidance sometimes becomes too much. In relation to schedule 6 the Bar Association said:

Proposed subsection 5D(1)(A) permits the Environment Protection Authority to appeal against any sentence in proceedings instituted or carried by or on behalf of the EPA. The Bar Association is opposed to the principle of Crown appeals as a form of double jeopardy. The proposal is therefore undesirable.

I note that the Bar Association has maintained its consistency in this regard. However, the Parliament some time ago clearly expressed its view about the desirability of the Crown to have a right of appeal, and this measure maintains that principle. As members of Parliament we are well aware of the community’s view that in appropriate cases the Crown should be able to exercise a right of appeal to protect community interest. The Bar Association commented on the schedule 11 amendment to the Dust Diseases Tribunal Act as follows:

Proposed section 32 limits appeals from the Tribunal with the scope of appeals available from the Compensation Court. My comment is that the proposed legislation further erodes the rights of litigants in common law actions and is therefore undesirable.

The Dust Diseases Tribunal was specifically established under the Compensation Court to deal with matters relating to dust diseases. It is proposed to replicate the system that exists within the mother institution, the Compensation Court. As far as I am aware the arrangements in the Compensation Court have worked well, and I do not recall any criticisms having been made of them. Other criticisms might be made, but not in regard to that issue. Therefore, the Opposition does not support the Bar Association’s view that the amendment should not be pursued. In relation to the schedule 24 amendment of the Supreme Court Act, the Bar Association said:

Proposed additions to section 46A extend the categories of appeals which may be heard by two judges of the Court of Appeal to include appeals from the Dust Diseases Tribunal where the appeal relates solely to the amount of compensation awarded by that tribunal, or from a court or tribunal (other than the Supreme Court) where:

(i) the leave of the Court of Appeal is required in respect of that appeal, and

(ii) the appeal is not against a final judgment or an order or decision of the Court or Tribunal.

The Bar Association objected to the introduction of "two judge" appeals as diminishing the importance of the appellate process. We maintain the same position with the proposed amendment to section 46A.

The Bar Association has maintained this consistency in its opposition to two-judge appeals. I was the Attorney General who introduced provision for two-judge appeals, and that was supported by the Parliament. To the best of my knowledge it has worked very well and I have not heard a single criticism of its operation. If criticisms have been made, they have not reached my desk. The Bar Association maintains its argument of five years ago. One would have thought that it might have moved on, but regrettably it has not. We acknowledge the Bar Association’s opposition but do not support it. With those comments the Opposition does not oppose the bill.

The Hon. ELISABETH KIRKBY [11.33 a.m.]: The Australian Democrats support the Courts Legislation Amendment Bill. As the Attorney General pointed out, the purpose of the bill is to improve the procedural efficiency of the courts. The bill is the result of ongoing reviews by the Attorney General of the operations of the courts. There are 23 amendments to 22 Acts, mainly of a technical nature, which all deal with procedure. There is
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general agreement for most of the amendments and, if the Government is to be believed, there has been consultation with all the major stakeholders. Both the Law Society and the Bar Association have expressed concerns about new section 18D(2)(b), which arbitrarily strikes out a matter for a failure to appear, without any provision for reinstatement. Obviously that is not fair because plaintiffs or their legal representatives may have had a reasonable excuse for non-attendance - such as having been hit by a bus.

Therefore, the Government agreed to amend that clause to allow a matter so removed to be restored to the call-over list. However, the Bar Association has concerns over other schedules to the bill, and the Leader of the Opposition dealt with those at some length. Schedule 6 amends the Criminal Appeal Act 1912 to permit the Environment Protection Authority to appeal against any sentence in proceedings instituted or carried by or on behalf of the EPA. The Bar Association is opposed to the principle of Crown appeals; it views it as a form of double jeopardy. However, the Government has made it clear that in practice this is not an issue. Of course, that was the position taken by the former Government.

Schedule 11 amends the Dust Diseases Tribunal Act 1989 to limit appeals consistent with the scope of appeals available from the Compensation Court. Again the Bar Association suggests that this further erodes the rights of litigants in common law actions and suggests it is undesirable. However, the Government has stated that it is part of its courts policy to equalise the rights available across jurisdictions. Schedule 23 amends the Supreme Court Act 1970 to extend the categories of appeals which may be heard by two judges of the Court of Appeal. The Leader of the Opposition said that the Bar Association opposed the introduction of two-judge appeals as diminishing the importance of the appellate jurisdiction.

However, that measure is already in place. If this system frees up one judge to hear another case, and the quality of the appellate decisions and process is not adversely affected, there is no reason to change it. The Bar Association has sought for a long time to change this provision. It did not succeed with the former Government and it obviously will not succeed with this Government. The objections of the Bar Association are more of an esoteric rather than a practical nature and the only objection of substance regarding new section 18D(2)(b) has been addressed by the Government by way of an amendment. Therefore, I believe that both the bill and the amendment should be supported.

Reverend the Hon. F. J. NILE [11.38 a.m.]: The Christian Democratic Party supports the Courts Legislation Amendment Bill. The object of the bill is to make miscellaneous amendments to various Acts and regulations relating to courts and associated matters. A large number of Acts will be amended, including the Arbitration (Civil Actions) Act, the Coroners Act, the Jury Act, the Crown Advocate Act, and the Criminal Procedure Act. We understand that the bill makes only minor miscellaneous changes but, as we indicated during the original briefing session, it is difficult, in particular for crossbench members, to fully assess the impact of each amendment. However, we accept the Government’s assurance that they are only miscellaneous matters and our concerns are allayed because the Opposition also supports the bill.

We trust that as time goes by some change will not have been made that has a stronger impact than that intended by the Government. The Christian Democratic Party has received submissions from various bodies expressing concerns about the bill or aspects of it. One such body is the Law Society of New South Wales, which wrote on 26 May 1998 and indicated its concern about the Courts Legislation Amendment Bill and other matters. I note that the Government will move an amendment to meet some concerns expressed by various parties. The Christian Democratic Party supports the bill and the amendment to be moved in Committee.

The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [11.40 a.m.], in reply: I thank honourable members for their thoughtful contributions and their support for the bill.

Motion agreed to.

Bill read a second time.

Schedule 1

The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [11.41 a.m.]: I move the Government amendment as circulated:

Page 6, schedule 1[3], proposed section 18D. Insert after line 5:

(3) If a rehearing is discontinued under subsection (2) (b), the order for rehearing may, subject to and in accordance with the rules, be reinstated by the court concerned on application made in accordance with the rules within 7 days after the discontinuance.

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Concerns have been raised with me about new section 18D(2)(b) proposed by schedule 1 to the bill. It seeks to amend the Arbitration (Civil Actions) Act by providing that a rehearing is discontinued if the applicant fails to attend the rehearing or other related proceedings before a registrar and no person present at the rehearing or related proceedings requests that the rehearing proceed. It has been suggested to me that the words "or related proceedings" be removed as they will enable a matter to be struck out arbitrarily without provision for reinstatement in certain circumstances.

In my view those words ought to remain to ensure that proceedings are properly case managed and that the rights of the affected parties are not compromised. Nevertheless, the Government recognises that there may be circumstances that could give rise to the non-attendance of parties at either the rehearing or related proceedings. In the circumstances, and having regard to the principles of procedural fairness, the Government suggests that schedule 1 to the bill be amended so that where a rehearing has been discontinued under new section 18D(2)(b) an application may be made to the relevant court to have the order for rehearing reinstated. To ensure that the interests of the parties and the objectives of case management are met, it is proposed that such applications be made within seven days of the discontinuance.

Amendment agreed to.

Schedule as amended agreed to.

Bill reported from Committee with an amendment and report adopted.

Debate resumed from 28 May.

The Hon. J. M. SAMIOS [11.47 a.m.]: The Opposition supports the Administrative Decisions Tribunal Legislation Amendment Bill, which will amend the Administrative Decisions Tribunal Act 1997 to make provisions with respect to the constitution and functions of the tribunal, to amend various Acts and regulations to confer jurisdiction on the tribunal, and for other purposes. As was said by the Minister in another place, concern has been expressed about the fate of the Administrative Decisions Tribunal. This bill, which was foreshadowed by the Attorney General in his second reading speech on the establishing legislations, provides for a second stage conferring certain jurisdiction on the tribunal.

First, the bill will provide that the president of the Administrative Decisions Tribunal be a District Court judge. This properly reflects the importance of the tribunal within the judicial system. The bill provides also that the holder of the presidency of the tribunal may simultaneously hold an appointment as a member of another tribunal, provided that he or she is not remunerated for such membership. The bill also provides for an increase in the jurisdiction of the tribunal. We are informed that this comes about as a result of the Attorney General’s Department and other agencies conferring as to administrative decisions that it may be appropriate to refer to the Administrative Decisions Tribunal for review.

In essence, the bill, which is good housekeeping legislation, provides that certain matters will not be appropriate for merit review. For example, as was indicated in another place, decisions relating to the selection of tenders, grants allocations, capital works management, land and water management, public health and quarantine matters, and decisions concerning juvenile or adult offenders and the like, have not been included within the jurisdiction of the Administrative Decisions Tribunal. That is obviously a matter of commonsense. It does not deny the right to judicial review of government decisions in the Supreme Court. The Opposition is pleased that further provision has been made with respect to the constitution and functions of the Administrative Decisions Tribunal. Although the bill is somewhat overdue, the Opposition supports it.

Reverend the Hon. F. J. NILE [11.52 a.m.]: The Christian Democratic Party supports the Administrative Decisions Tribunal Legislation Amendment Bill. One of the important aspects of this straightforward bill is the provision that a judge of the District Court should be the only judicial officer eligible to be appointed as the president of the tribunal. The bill also contains provisions relating to the president and members of the tribunal to enable the tribunal to function properly. Concern has been expressed about the fate of the Administrative Decisions Tribunal. We are pleased that the Government is acting on its promise to establish the tribunal, to allow it to work, and to centralise matters before it rather than have a proliferation of tribunals in the State. We support that simplification of the State’s tribunal system. I understand that a similar process is being followed at a Federal level.

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I agree with the Hon. J. M. Samios that a number of matters - for example, selection of tenders, grants allocations, capital works management, and so on - are not covered by the tribunal and cannot be referred to it. However, even when a decision is reviewed by the Administrative Decisions Tribunal, the right to appeal to the Supreme Court still exists if a person wishes a judicial review of government decisions. The bill makes reviewable by the tribunal a mixture of decisions that were previously reviewable by a court or other tribunal and decisions that were not previously reviewable.

The bill extends the original jurisdiction of the tribunal to provide for jurisdiction with respect to proceedings to remove a holder of civic office pursuant to sections 329 to 331 of the Local Government Act. The Christian Democratic Party will monitor with interest the operation of the tribunal to ensure that it carries out its duties to the benefit of the State, and particularly the citizens of the State.

The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [11.54 a.m.], in reply: I thank honourable members for their contributions to the debate and their support for the bill, which I believe will allow the long-awaited Administrative Decisions Tribunal to be operative by 1 September this year. I commend the bill to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages.

Bill received and read a first time.

Suspension of standing orders agreed to.

The Hon. J. W. Shaw tabled a list detailing all legislation unproclaimed as at 2 June 1998.

Debate resumed from 28 May.

The Hon. HELEN SHAM-HO [11.57 a.m.]: The Opposition does not oppose the Young Offenders Amendment Bill, which clarifies and streamlines a number of anomalies contained in the Young Offenders Act 1997. The Young Offenders Act - which came into force on 6 April 1998 and which the Opposition did not oppose - established a scheme to provide alternatives to formal court proceedings for children alleged to have committed certain criminal offences. The Act introduced a positive move away from dealing with children in the intimidating and adversarial court system towards a more conciliatory process, beginning with police warnings, formal police cautions and youth justice conferencing, and concluding with the young offender’s appearance in court.

A report of the Legislative Council’s Standing Committee on Social Issues of which I was a member recommended the establishment of the youth justice conferencing system. I am pleased that the Government has seen fit to adopt the committee’s recommendation. The system has been embraced not only by members of this House but also by youth liaison officers and police officers across New South Wales, who welcome the clear guidelines that the Act provides on how to deal with young offenders. The Act gives police officers additional options when dealing with young offenders by empowering them to make decisions regarding cautions and conferences. According to police, and as confirmed by the Minister in his second reading speech, the Act has produced positive results and has led to an increase in the rate of police cautions from approximately 5 per cent to 50 per cent, with referrals being made to conferences in appropriate cases.

It is very pleasing to hear that young people are being diverted from daunting court proceedings. The effect of the system of cautions and conferences is that children, unless they have committed serious criminal offences, are treated in a more personal and non-adversarial manner. However, the implementation of the Act has revealed a number of inconsistencies that could hinder its operation. The Opposition supports the Young Offenders Amendment Bill, which will clarify administrative procedures and enable the process to be run more smoothly. The object of the bill is to amend the Young Offenders Act 1997:

(a) to require courts to notify police where courts give cautions to offenders, and

(b) to confer certain administrative functions currently exercised by conference convenors on conference administrators, and,

(c) to make statements made by offenders during conferences and when cautions are given inadmissible in civil proceedings, and

(d) to enable the appointment of a deputy chairperson of the Youth Justice Advisory Committee and of deputies for members of that Committee, and

(e) to make other minor amendments of a law revision nature.

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The proposed amendments deal primarily with procedural changes. By schedule 1[2] a court that gives a caution will be required to notify area police commanders of the decision and the reasons for giving the caution. This feedback will enable police to review decisions made by officers. Schedule 1[4] provides that a youth justice conference relating to a child detained in a detention centre may be held at a detention centre. In those circumstances, it is only reasonable and practical that the conference be held in a detention centre. Section 46 of the Act distinguishes between conference and court proceedings by providing that a conference may be held at a location agreed to by the participants, but not at a police station, a court house or any office of the Department of Juvenile Justice. The remaining amendments are of a procedural nature.

Schedule 1[15] will amend Section 67(1) to provide that certain statements are inadmissible in both criminal and civil proceedings. That will allow young offenders to speak frankly and directly within the conference so that appropriate decisions can be made. If they fear that what they say in a conference will be used in evidence against them, the spirit of conferencing will be destroyed. I commend the Government for that amendment. Schedule 1[16] provides for the appointment of deputy chairpersons of the Youth Justice Advisory Committee, and will streamline proceedings. The Opposition will support the amendments. I am hopeful that the Young Offenders Amendment Bill will divert young offenders from the adversarial system to the conferencing system. I am also hopeful that conferencing for young offenders will increase by more than 50 per cent. The Opposition does not oppose the bill.

The Hon. ELISABETH KIRKBY [12.05 p.m.]: The Australian Democrats also support the bill. As honourable members will be aware, the Young Offenders Bill was introduced in June 1997 after the Standing Committee on Social Issues, of which I was a member, released its report on juvenile justice in New South Wales in 1992. The Young Offenders Act - which has been in place for 12 months, and in force since 6 April 1998 - established a scheme to provide for alternatives to formal court proceedings for children alleged to have committed certain criminal offences. The alternatives are police warnings, formal police cautions, youth justice conferences and, finally, a court appearance. Since last year the Act has been overseen by the Young Offenders Act Implementation Committee, which consists of representatives from the Attorney General’s Department, the New South Wales Police Service, the Ministry for Police, the Department of Juvenile Justice, and the Office of the Director of Public Prosecutions.

Several anomalies have been discovered in the Act, which, if they are not attended to, will result in inefficiencies and inconsistencies in its operation. The amendments are procedural changes identified by the Government to streamline the Act. The amendments will require courts to notify police when they issue cautions to young offenders, to confer certain administrative functions currently exercised by conference convenors and conference administrators, to make statements made by offenders during conferences and when cautions are given inadmissible during court proceedings, to enable the appointment of a deputy chairperson of the Youth Justice Advisory Committee and of deputies for members of that committee, and to make other minor amendments.

When the legislation was introduced last year just over 14,000 juvenile offenders had been dealt with by the Children’s Court, or the Local Court sitting as the Children’s Court in the 12-month period 1994-95. The bulk of offences committed by juveniles are property offences, and the majority are committed by males. Females represent only 16.5 per cent of offenders, although females are represented in large numbers in fraud and shoplifting offences. Only prostitution offences are committed in the majority by females.

When the committee released its report in 1992 - and I am perfectly certain that the situation has not changed - it reflected how young Aboriginals were significantly overrepresented in the juvenile justice system. The most common decision by the Children’s Court was recognisance without supervision. In February 1996, 435 young individuals were in detention centres, the majority of whom were aged over 18 and the bulk of whom became adults during the term of their custody. Only six were already over the age of 18 when they were ordered to serve their sentences in a juvenile detention facility. As at February 1996 no juveniles were in an adult prison in New South Wales. I remind honourable members of what the committee reported six years ago, and, as I say, I do not believe that the philosophy behind these statements has changed:

As most juveniles grow out of offending behaviour, exposure to events which may lead to the development of a poor self image or an anti-social attitude should be minimised.

The proceedings of the court are often slow with young people in remand for lengthy periods. This can cause individuals

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hardship and also have the effect of making the eventual sentence less effective due to the distance in time from the precipitating offence. The Committee has been informed that effective responses to juvenile offending should be as related to the offence as possible, so that the causal connection is clear.

On a number of occasions the Committee heard that it is quite common for young people not to understand court proceedings.

That was obvious when the committee was hearing evidence. Committee members attended magistrates courts and listened to the proceedings, which were confusing enough for an adult and would have been totally confusing for a young person, particularly a young person who did not have a high level of education. Unfortunately, when young people were defended there were pressures on the defence. The defending solicitor would dash into the courtroom, have a brief conference with the young person and then go into court without fully explaining to the young person how the proceedings would be conducted and what the solicitor intended to do to assist. It was quite obvious that there was confusion, which led to resentment and, in many cases, to an almost total breakdown in the morale of those young persons. The committee was right when it made it clear that the majority of young people do not understand court proceedings and do not fully comprehend the implications of their offending behaviour. The committee said finally:

The Committee considers and has heard evidence that it was in the interests of both the community and the young offender to fully understand the implications of his or her offending behaviour. Further, the Committee considers that the court diversion scheme provides a framework in which young offenders might understand the effects of their offending behaviour and, more importantly, be dealt with out of the court system.

I congratulate the Government on bringing forward these amendments so quickly. I hope that the Young Offenders Act will continue in an even more valuable way to stem juvenile crime in our society. If young people, particularly first offenders charged with a fairly minor offence, go into a detention centre with other young criminals who have committed far more serious crimes, they will not come out improved by that experience; they will come out more informed on how to be a criminal. Obviously, that is something that we all wish to avoid. I support the legislation.

Reverend the Hon. F. J. NILE: [12.15 p.m.]: The Christian Democratic Party is pleased to support the Young Offenders Amendment Bill, which will amend the Young Offenders Act 1997 to clarify certain procedural matters relating to cautions and conferences. Honourable members would be aware that the Young Offenders Act, which was passed by Parliament in June 1997, commenced operation on 6 April 1998. The Act established a scheme providing for alternatives to formal court proceedings for children alleged to have committed certain criminal offences, beginning with police warnings, formal police cautions, youth justice conferences and, finally, court.

Earlier the Hon. Helen Sham-Ho pointed out that the Young Offenders Act was implemented after a detailed investigation by the Standing Committee on Social Issues. The committee, of which the Hon. Helen Sham-Ho, the Hon. Elisabeth Kirkby and I were members, inquired into juvenile justice. As we did so it became clear that we needed a more efficient system to divert young people from the court system, wherever possible. This legislation, which has worked successfully, has resulted in co-operation with the Police Service - a critical aspect of our whole approach - and police youth liaison officers, who have been a valuable development within the Police Service. We have achieved a great deal of success in diverting young people from the court process and implementing the philosophy of restorative justice.

The legislation provides police with clear guidelines to deal with young offenders. The Act has given them more options and powers to make decisions about cautions and conferences and to develop trust with young people and the community, to whom they are ultimately accountable. The whole process is far more personal than a court and is less adversarial. The police have reported increased levels of satisfaction with the outcomes.

As a result - I am sure all honourable members would agree that this is an encouraging result - the police cautioning rate for young people in New South Wales has risen from 5 per cent to approximately 50 per cent and referrals are being made to conferences in appropriate cases. If young people, in particular first offenders, can be diverted from the court system, from the detention system and, finally, from the prison system, that will benefit society as well as the individuals who may have made a mistake. They may have been led into committing some sort of offence but may not have completely given over to criminal behaviour or a life of crime.

After committee members visited juvenile detention centres they formed the view that young people followed a pattern of being placed in detention centres, being released, committing other offences and finally going to prison. We have to get young people off the path that leads to such
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inevitable results. We must help them understand the seriousness of what they have done and, wherever possible, they must face their victims, have discussions or conferences about the matter, and be involved in determining a fair solution or penalty for them.

This amending bill will finetune the legislation, and its objects are: to require courts to notify police where courts give cautions to offenders, to confer certain administrative functions currently exercised by conference convenors on conference administrators, to make statements made by offenders during conferences and when cautions are given inadmissible in civil proceedings, and to make some changes to the structure of the Youth Justice Advisory Committee. Another amendment provides that a youth justice conference for a child in custody in a detention centre may be held at that detention centre. As stated by the Government, the conference must be held with the co-operation of both the victim and offender and normally when both are residing in a detention centre. The Christian Democratic Party is pleased to support the bill and believes that it will make a positive contribution to our society.

The Hon. D. F. MOPPETT [12.20 p.m]: I add my support for the introduction of this amendment bill. I was one of the members of the Standing Committee on Social Issues who travelled to New Zealand to study family group conferencing. The New Zealand family group conferencing is not the only example of the youth conferencing philosophy, but it is certainly the most frequently quoted and closely studied. At the time of the introduction of the Young Offenders Bill I gave my unreserved support, as I had in the social issues committee, to the introduction of this measure. I congratulate the Attorney General, because I know how difficult it is to fight entrenched opposition to a totally different approach to young offenders.

Rural communities, and certainly young offenders and their families, owe a great debt to the Hon. J. P. Hannaford for his pioneering work in this area. I was involved in trying to convince this State’s western communities of the efficacy of this different approach, and I know that the then Attorney General went to great lengths to set up and trial the scheme before a cautious New South Wales Police Association would lend its support, to which Reverend the Hon. F. J. Nile has referred. I totally support the amendments in the bill. A core concept in youth conferencing is that offenders must come to a full and unreserved admission of the fact that they perpetrated an offence. Guilt is not talked about, but they must not protest their innocence.

Unless they acknowledge fault, the process cannot proceed. Further, unless confidence is generated in the offender, support people, carers and even legal representatives, the process simply will not work. The amendments are essential so that any admission made either in the cautioning process or in the youth conferencing process is not admissible as prima facie evidence to be used against the offender. I hope that this worthwhile bill will lead to a further strengthening and extension of the youth conferencing process throughout New South Wales.

The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [12.23 p.m.], in reply: I thank honourable members for their contributions to the debate and for their support for this bill, which, as members have emphasised, is a development of the substantive measure that we considered some time ago. Today’s speech by the Hon. D. F. Moppett reminds me not only of his strong support for this concept but also of his eloquence in the previous debate. It was a truly memorable speech. The bipartisan spirit behind this measure has greatly assisted community support and the co-operation of interest groups in the implementation of this radical but innovative juvenile justice measure. I commend the bill to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages.

Debate resumed from 28 May.

The Hon. J. M. SAMIOS [12.25 p.m.]: The Opposition supports this important legislation, which affects the disciplined profession of solicitors, who play an important role in the law, and particularly, more recently, the conduct of mortgage practices. Some 284 firms in New South Wales deal with investment funds amounting to approximately $1.1 billion. That is an interesting figure bearing in mind, as I am informed by the Attorney General, that there are 14,308 solicitors with practising certificates in New South Wales, including government solicitors and people who may not be in regular employment. Whilst the Minister said that solicitors dealing with mortgage practices play an important role in rural areas, over the years they also have played a significant role in the metropolitan area.

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Sadly, in recent years fraudulent or dishonest practices have resulted in major claims on the Solicitors’ Fidelity Fund and the collapse of legal firms. Teityens, a small Albury firm, was referred to by the Minister, but many more firms fit into that category. In essence, the legislation seeks to move claims made on the Solicitors’ Fidelity Fund into a separate area represented by the Mortgage Lawyers Association of New South Wales, which was recently established and has the worthwhile ideals of promoting good practice in the conduct of mortgage practices. Clients will now make claims on a solicitor’s fidelity insurance rather than on the Solicitors’ Fidelity Fund. It will be incumbent upon solicitors to obtain insurance, as I understand it, on terms that are satisfactory to the Attorney General. I repeat that the claims will not be on the fund but on the insurance company.

In the past substantial, if not massive, claims have been made on fidelity funds, resulting in solicitors having to pay increased amounts with their practising certificates. In turn, the cost has been passed on to clients. A common complaint about the practice of the law over the years has involved its expense. All governments today are grappling with this problem as best they can. The bill will ensure that mortgage lawyers, who provide a very important service to the community, continue to make their contribution to society and enhance the status of solicitors to the benefit of the community at large. The bill also deals with mortgage transactions involved with the Corporations Law and the supervision of the Australian Securities Commission. The essential thrust of the legislation is to provide relief to solicitors from claims on the fidelity fund and to ensure that the modus operandi is more efficaciously dealt with by way of a solicitor’s fidelity insurance. The legislation is good housekeeping and is to be commended. The Opposition supports the bill.

Reverend the Hon. F. J. NILE [12.34 p.m.]: The Christian Democratic Party supports the Legal Profession Amendment (Solicitors’ Mortgage Practices) Bill, which will provide for supervision and a separate fidelity insurance scheme for solicitors who conduct mortgage practices, which are transactions in which a solicitor arranges for funds to be lent by a client to another person and secured by a mortgage. About $1.1 billion is invested in mortgage practices conducted by 284 firms in New South Wales. With such a large amount of money invested it is important that there be proper supervision of the funds to prevent dishonest practices by solicitors. In a number of cases there is simply a lack of business experience or wisdom and funds are invested in projects or businesses which fail. A small firm in Albury, Teityens, invested a large amount of clients’ money in a failed property development in Melbourne. The Law Society of New South Wales has a estimated that the fidelity fund has paid out $30.35 million, excluding payments in relation to that company in Albury. It is obvious that there must be adequate provision for payments from the fund. Better still, practices should prevent the loss of clients’ funds.

Mortgage practice transactions are regulated in part through the Corporations Law. Anyone who accepts funds from another person on a commercial basis for investment must comply with part 7.12 of the Corporations Law, which requires the issuing of a prospectus and supervision by an approved trustee. The Australian Securities Commission has issued a class order which exempts solicitors from compliance with these aspects of the Corporations Law. However, the commission intends to review the terms of the exemption applying to solicitors’ mortgage practices. Positive steps need to be taken and the bill will help in that regard. It requires solicitors to conduct their mortgage practice transactions in compliance with the terms of any exemption given by the Australian Securities Commission.

The bill has been developed in consultation with the Law Society and mortgage practitioners. There are many ways in which funds can be attracted from investors wanting high interest rates, which normally mean high risk. Recent media reports have referred to a company headed by a person who was not a solicitor but who was successful at getting large investments from people by offering interest rates of up to 50 per cent. He was able to cleverly dress up the operation by calling the money given to him for investment personal loans to him. This scam was even successful in attracting investments from a large number of police officers, particularly those in the Australia Federal Police in Canberra, even those of very high rank. There must be constant supervision of this whole area of investments to ensure that there is adequate protection for investors. However, investors should also make certain that they are not attracted to high-risk investments which could lead to their losing their funds. The Christian Democratic Party supports the bill.

The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [12.38 p.m.], in reply: I thank honourable members for their support for the bill. As Reverend the Hon. F. J. Nile said, it is a measure that has been worked up in close liaison with the Law Society. It provides appropriate safeguards for
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clients and appropriate measures to deal with this area of legal practice. I commend the bill to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages.

Bill received and read a first time.

Suspension of standing orders agreed to.

The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [12.41 p.m.]: I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The periodic detention scheme commenced in 1971. Since the time the legislation established the scheme it has been amended, both by this Government and by previous governments, to refine and tighten the scheme. The Periodic Detention of Prisoners Amendment Act 1996 made a series of amendments which, when added together, considerably tightened the scheme. For example, the Act trebled penalties for non-attendance and enabled more rigorous scrutiny of dubious claims for leave on medical grounds. However, non-attendance by detainees remains a concern.

If the scheme is to have legitimacy as an alternative to full-time custody it is vital that penalties for non-attendance are swiftly enforced. The bill seeks to improve the periodic detention scheme in three major ways. First, it seeks to strengthen the criteria against which those facing sentence are assessed in terms of suitability for periodic detention. The Department of Corrective Services has found that some offenders presently entering the periodic detention scheme are disruptive or unsuitable for work; do not possess the self-discipline for periodic detention attendance; or have personal circumstances that make attendance impractical.

Proposed section 5(7) provides for the making of regulations to prescribe factors that must be taken into account when a probation and parole officer prepares a report to assist the court in deciding whether an offender is suitable for periodic detention, as opposed to various community-based alternatives or indeed full-time custody. At present there is no statutory guidance for a probation and parole officer when preparing such a report.

I anticipate that the following factors will be prescribed in the regulations: whether the offender has a major alcohol or drug problem; whether the offender has a major psychiatric problem; whether the offender has a medical problem such that he or she would be unable to attend periodic detention; whether the nature of the offender’s employment or other personal circumstances would make regular attendance at periodic detention impractical; and whether the offender has a serious criminal record.

The prescribed suitability report will be underpinned by a new requirement, in section 5(1B), that an offender must sign an undertaking, prior to sentence, to comply with the requirements of periodic detention. The form of the undertaking will also be prescribed in the regulation. Requiring an offender to sign an undertaking to comply with the requirements of periodic detention will ensure that the offender is not later able to assert that he or she did not know what was involved, and use that as a reason to seek leave of absence. The second way in which the bill will improve the periodic detention scheme is to remove any doubt that a court must sentence a person to imprisonment before it considers whether or not to make a periodic detention order.

The bill makes it plain that those who abuse the relative leniency of a sentence to be served by way of periodic detention face full-time imprisonment. The periodic detention scheme was originally introduced to be a real alternative to full-time imprisonment. This intention is currently reflected in section 5(1) of the Act, which provides that when a person is convicted of an offence and sentenced upon that conviction to imprisonment for a term of not less than three months and not more than three years, the court may order that the person’s sentence be served by way of periodic detention.

The intention of section 5(1) is that the sentence of imprisonment should be determined first, and only then should consideration be given to whether the person serves the sentence in full-time imprisonment or by way of periodic detention. Despite the wording of section 5(1), interpretation of the section by the courts has been variable, thereby reducing the diversionary effect of periodic detention. The bill repeals section 5(1) and inserts new sections, including new section 5(1A), which requires a court to set a fixed term or a minimum and an additional term before making a periodic detention order. Offenders sentenced to periodic detention will therefore be in no doubt, from the outset, as to the term they face in full-time custody if they fail to attend periodic detention.

The third way in which the bill will improve the periodic detention scheme is to overcome the delays that presently occur once breach action against a detainee has been commenced by the Department of Corrective Services. The bill will overcome these delays by removing the cancellation process from the courts and placing it with the Parole Board. The Parole Board is already responsible for revoking parole orders and home detention orders. The board has the power to revoke a parole order under section 34 of the Sentencing Act 1989 and to revoke a home detention order under section 16 of the Home Detention Act 1996.

On the basis of the time taken for the Parole Board to revoke a parole order or a home detention order the Department of Corrective Services anticipates that the board would take about 10 days from the date of application to cancel a routine periodic detention order, and would have the capacity to process urgent applications much more quickly. When considering whether to exercise its powers to revoke a parole order or a home detention order, the Parole Board follows

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three basic steps. First, the board considers a submission from the Probation and Parole Service recommending revocation of the order.

Second, if the board accepts the recommendation, the board revokes the order and issues a warrant for the arrest of the offender. Finally, when the offender is returned to custody, the board reconsiders its earlier decision to revoke the order. At this hearing the offender may make submissions to the board. The bill requires that the board follow the same basic procedure for the cancellation of a periodic detention order. The only change will be that the recommendation for cancellation will be initiated by the Periodic Detention Centres Administration Unit rather than by the Probation and Parole Service. When the Parole Board cancels a periodic detention order, the remainder of the fixed term or the minimum term, initially set by the court will be served in full-time imprisonment.

I now wish to outline other changes contained in the bill. New section 5(1) enables an order for periodic detention to be made in relation to a term of imprisonment of less than three months. An offender receiving a sentence of less than three months is currently, in most cases, excluded from periodic detention, whereas an offender receiving a longer sentence, of up to three years, may be considered for periodic detention.

Unlike periodic detention, home detention does not have a minimum sentence for eligibility. An offender receiving a sentence of less than three months may be given home detention. The new provision restores consistency between these sentencing options. New section 20(2A) requires that a formal application for leave of absence be made within seven days from the commencement of the detention period in respect of which the leave is sought. Detainees are already required to advise a centre if they are unable to attend due to ill health; this provision ensures that the formal application for leave in respect of such an absence must be promptly lodged.

Instances have occurred when a periodic detainee has not formally applied for sick or other leave until the matter is actually before the court - many months after the actual absence. The requirement to make formal applications promptly will minimise unnecessary administrative action to cancel a periodic detention order for absences for which leave would have been granted. An amendment to section 21AA(3) provides for time missed as a result of reporting late to be aggregated and served as part of an additional detention period. Periodic detention centres are generally only staffed during normal periodic detention periods.

By aggregating make-up time, and requiring a detainee to attend for part of an additional detention period, the department will avoid the possibility of having to direct officers to work overtime to supervise detainees making up time outside normal hours. New section 21(4) provides that a periodic detainee is taken to have served a detention period if he or she was an inmate of a correctional centre during that period. At present, it is not always clear that time served in full-time imprisonment is counted towards completion of a periodic detention order.

New section 25(6) provides that the Parole Board may replace a cancelled periodic detention order with a home detention order. The circumstances of an offender may change during the serving of a sentence and while periodic detention may no longer be suitable, home detention may be. Home detention, like periodic detention, is an alternative to full-time imprisonment. I commend the bill to the House.

The Hon. C. J. S. LYNN [12.41 p.m.]: The Opposition supports the Periodic Detention of Prisoners Amendment Bill. It reflects the sentiments of the Opposition about tightening regulations that determine the suitability of offenders for periodic detention. The Opposition supports moves to ensure that penalties for non-attendance by prisoners are enforced. The only comment the Opposition makes at this stage is: why did the legislation take so long? New section 5(7) will allow formulation of regulations to prescribe factors which must be taken into account when a probation and parole officer prepares a report to assist the court in determining the suitability of an offender for periodic detention. The bill ensures that a person must first be sentenced to prison before a consideration can be made to revert to periodic detention as an alternative to a prison sentence. Proposed section 5(1A) provides that should periodic detention fail, the offender will face full-time custody for the entire term of the sentence. The bill reinforces the intention of the Periodic Detention of Prisoners Act and provides the Department of Corrective Services with the necessary power to enforce action against those who fail to comply with periodic detention orders.

In recent times the periodic detention system has suffered with bad publicity due to flouting of regulations by offenders who have freely abused the system. The system needs tightening and this bill should do just that. Periodic detention was designed as a serious alternative to full-time imprisonment but, unfortunately, its recent adverse publicity has given it a bad name in the eyes of the community as the easy alternative to a tougher sentence. Periodic detention must be viewed and implemented as a serious form of detention for offenders. Offenders must understand that if they are found guilty of an offence serious enough to warrant a full-time custodial sentence, the awarding of periodic detention is an opportunity for them to rehabilitate and continue to work, thereby keeping them on the straight and narrow. Offenders must have no doubt that if they flout the rules they will revert to full-time custodial sentences.

Community concerns about the system in the wake of last year’s very public blatant disregard of the law by prisoners has thus warranted further action. The Opposition welcomes moves by the Government to ensure that such events do not recur. However, the entitlement of offenders with serious criminal records to periodic detention remains an Opposition concern because it believes that those prisoners should not be entitled to periodic detention. Though the bill should enable more stringent enforcement of the regulations of periodic
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detention, it is inappropriate for criminals convicted of serious crimes to be subject to any form of imprisonment other than one which reflects the seriousness of those crimes.

The Government should consider amending the Act further to ensure that this does not take place and that criminals with serious records are exempt from the privilege of periodic detention. These people have committed serious previous crimes and are well aware of the rules. If they choose to continue with their criminal career and commit further serious criminal offences, they should have to serve a full-time custodial sentence. At the end of that full-time custodial sentencing they should be -

The Hon. R. S. L. Jones: Forced to go on the Kokoda Trail.

The Hon. C. J. S. LYNN: Yes, they should be taken on the Kokoda Trail. Prisoners should then be given the option to rehabilitate to prepare them for re-entry into society and into the work force. However, they should not be given periodic detention at an early stage because the wrong message will be sent that despite their criminal activities the system will treat them with kid gloves. That is not the message to be sent to people who choose to break the law in that way. The Government has taken the positive move to transfer from the courts to the Parole Board the decision to revoke periodic detention orders. The community needs to be confident that a prisoner who has breached periodic detention orders will be dealt with expeditiously under the law and will not be in a position to commit further crimes - and sometimes horrendous crimes - which could easily have been prevented by the law.

The Department of Corrective Services should immediately notify the Parole Board if an offender fails to appear for periodic detention, providing the department with an opportunity to assess the urgency of the matter. The Minister for Corrective Services, in reply to the honourable member for Lane Cove, gave an assurance that a senior governor within the Department of Corrective Services was given the project of scrutinising and reviewing the internal administration of the system and a report was completed on 30 October last year. A new computer system is now in place that can automatically record a breach by detainees who fail to attend to serve their period of detention. This system has only been available in the last six months but is crucially important to the effective administration of the system.

The Minister stated that regardless of which centre the detainee must attend, if there is a failure to attend, the computer will record the breach on the following Friday or Monday morning. Now the Parole Board will be able to ensure that breaches of the system are detected early, that periodic detention will immediately cease and that the person will be subjected to full-time custodial sentencing. The Opposition supports the bill because it toughens the provisions of the Act, ensuring that those who abuse the system are in no doubt about the consequences of their actions. Periodic detention should not be an option for criminals who have committed serious criminal offences. These people are well aware of the system because of previous experience and they should have no doubt about the consequences should they choose to undertake criminal actions. I support the bill.

The Hon. R. S. L. JONES [12.49 p.m.]: Periodic detention is an alternative to full-time imprisonment that enables an offender who has been sentenced to a maximum of three years to serve that term by way of custody for two consecutive days of the week. In principle, periodic detention is a good alternative to full-time imprisonment. It attempts to ensure that those committing relatively minor offences are not dragged into the prison system full time, only to become full-blown criminals. I would like to focus on one amendment in particular, that which strengthens the criteria against which a person is assessed for suitability for periodic detention. Non-attendance by detainees is one of the main drawbacks of periodic detention. In this way the system actually works against its role as an alternative to full-time imprisonment, because those who do not attend for detention tend to end up full time in the corrective services system. The Minister said in his second reading speech that certain types of people are unsuited to periodic detention. Those with drug and alcohol problems, for example, are not considered to be good risks for this type of detention.

The effect of the amendments to section 5 is to draw to the attention of parole and judicial officers that it may actually be worse to sentence to periodic detention people who are unlikely to attend. Labelling a group of people with certain characteristics as unsuitable for periodic detention may work to their advantage if it means that they are less likely to end up as full-time prisoners. Such specifications are not written into the bill, and regulations will be made to specify the types of people who are unsuited to periodic detention.

I have been advised that the draft regulations, once produced by the department, will be sent to the Council for Civil Liberties and the Law Society. I hope that the Minister will hold good to that undertaking. Apart from the obvious social benefits
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of keeping people out of full-time imprisonment, periodic detention is a much cheaper sentencing option than full-time imprisonment. For example, the cost of periodic detention in 1996 was $30 per day per prisoner, whereas the equivalent cost of full-time minimum-security per prisoner per day was $104.35. This saving represents an excellent opportunity to fund support services such as assistance to help those who have been in the correctional system to get back into the work force.

Reverend the Hon. F. J. NILE [12.51 p.m.]: The Christian Democratic Party supports the Periodic Detention of Prisoners Amendment Bill. The objects of the bill are: first, to make miscellaneous amendments to the Periodic Detention of Prisons Act 1981 with respect to the making, cancellation and administration of periodic detention orders and, second, to make consequential amendments to the Home Detention Act 1996 and the Sentencing Act 1989. I am pleased that the Government has brought this bill forward. There continues to be criticism of the periodic detention system, particularly last year when controversy was stirred up by the media. We know that the media often are looking for controversial stories but last year there seemed to be some justification for media reports that some people who were supposed to be on periodic detention were in fact holidaying in Queensland or going sailing. There were other reports that offenders did not bother to attend for periodic detention at all, and that their failure to comply with periodic detention orders was met with very little action.

The community was concerned that this was evidence of a softening up of court processes, and that all too often when offenders were dealt with by the courts and given a sentence of periodic detention the offenders treated the orders as a joke. So the Christian Democratic Party is pleased that the Government has brought forward this bill in an attempt to tighten up some aspects of the periodic detention system. I note that the bill provides for certain changes to the periodic detention system, some of which will be contained in regulations. New section 5(7) provides for the making of regulations to prescribe factors that must be taken into account when a probation and parole officer prepares a report to assist the court in deciding whether an offender is suitable for periodic detention, as opposed to various community-based alternatives or indeed full-time custody. At present, according to the Minister for Corrective Services, there is no statutory guidance for a probation and parole officer when preparing such a report.

The Minister in the other place said that he planned to include certain factors in the regulations, such as whether the offender has a major alcohol or drug problem, whether the offender has a major psychiatric problem, whether the offender has a medical problem such that he or she would be unable to attend periodic detention, whether the nature of the offender’s employment or other personal circumstances would make regular attendance at periodic detention impractical, and whether the offender has a serious criminal record. In debate on this bill in the other place the point was made - I believe quite justifiably - that instead of it being a last consideration that an offender has a serious criminal record, that should be a first consideration.

In my mind - and I am sure in the minds of the public - a person with a serious criminal record should not qualify for a sentence of periodic detention. It seems hard to justify ordering that a person with a serious criminal record be given periodic detention, for the criminal is likely to regard that as a very soft option. There may be some factors that would lead to a court making such an order for periodic detention, for instance, factors related to the family of the offender and other similar matters, but it would seem logical that periodic detention not be available to persons with a record of having committed serious criminal offences.

I note that another provision of the bill is that the court must sentence a convicted person to imprisonment before it considers whether the person may serve a sentence by way of periodic detention. This change will answer criticism that periodic detention has become a major means of net widening. The nature of periodic detention means it should be regarded as the step just below a full-time custodial sentence in terms of severity, rather than being conceptualised as a community-based option. The bill makes it plain that those who fail to avail themselves of the relative leniency of a sentence served by way of periodic detention face full-time custody if they fail to fulfil the requirements of the order for periodic detention. Apparently there have been cases of offenders who have put forward certain reasons, perhaps illness, for their failure to attend for periodic detention. This legislation will make it clear that those who cannot attend must apply for leave so that that application can be considered, and probably agreed to if it is considered a genuine case.

Another important change that will make the periodic detention system work better is the
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provision to overcome delays that occur once breach action has been commenced. The bill will overcome those delays by removing the cancellation process from the courts and placing it in the hands of the Parole Board. The Parole Board already is responsible for revoking parole orders and home detention orders. The board has the power to revoke a parole order under section 34 of the Sentencing Act 1989 and to revoke a home detention order under section 16 of the Home Detention Act 1996. I believe that those measures proposed by this legislation will tighten up periodic detention procedures and make the system more effective in the future, and not leave it open to ridicule such as was levelled last year.

The Hon. I. COHEN [12.59 p.m.]: The Greens generally support the concept of periodic detention of offenders. I am pleased that parts of the bill will progress the agenda of keeping people out of the prison system. However, there is concern about the possibility that a person could first be imprisoned before moving to periodic detention. The Greens would prefer a system of periodic detention that does not involve an initial period of incarceration. We believe that the provision will have a net widening effect and could be problematic in many circumstances. The Greens are also concerned about the circumstances - as stated by the Minister in his second reading speech - in which exemption may apply to people with psychiatric illnesses or drug and alcohol problems. In many cases those people could avoid terms of incarceration so that their problems could be dealt with. The Greens would like to feel that there is some way around this situation. We are concerned that the Minister referred to those circumstances in his second reading speech.

New section 5(1) enables an order for periodic detention to be made in relation to a term of imprisonment of less than three months. Currently an offender receiving a sentence of less than three months is excluded from periodic detention, whereas an offender receiving a longer sentence, of up to three years, may be considered for periodic detention. The Greens are pleased that this issue has been addressed in the Minister’s second reading speech and support that aspect. In general the Greens support the concept of periodic detention and hope that some of those issues may be addressed.

[The President left the chair at 1.02 p.m. The House resumed at 2.30 p.m.]

The Hon. ELISABETH KIRKBY [2.30 p.m.]: I support the Periodic Detention of Prisoners Amendment Bill but raise concerns that I know have been raised with the Attorney General, as they have been raised with me, by magistrates in certain parts of country New South Wales. The bill will ensure that the Periodic Detention of Prisoners Amendment Act 1996 will be further tightened. Amendments made in 1996 considerably tightened the scheme. In fact, the Periodic Detention of Prisoners Amendment Act trebled penalties for non-attendance and also enabled more rigorous scrutiny of dubious claims for leave on medical grounds. However, despite increased penalties, non-attendance by detainees remains a matter of concern. If the scheme is to retain credibility as an alternative to full-time custody, it is important that penalties for non-attendance be enforced.

Under the present system, when a detainee fails to attend, the Department of Corrective Services must undertake considerable and time-consuming administrative action and must then seek a listing date from the court. Enforcement can then be further delayed through multiple adjournments. The bill seeks to improve the system in three ways. First, it seeks to strengthen the criteria against which those facing sentence are assessed to determine whether they are suitable for periodic detention. The bill will enable regulations to be made to prescribe factors that the Probation and Parole Service must take into account in preparing a presentence report on a person whom the court intends to consider for periodic detention.

Second, the bill seeks to remove any doubt as to the requirement that a court must sentence a person to imprisonment before it considers whether a person may serve a sentence by way of periodic detention. The Attorney and the Government believe that this change will answer criticisms that periodic detention has become a major means of net widening. Periodic detention should be regarded as the step just below a full-time custodial sentence in severity. In other words, this is not just a soft, community-based option. The bill makes it plain that those who fail to avail themselves of the relative leniency of a sentence served by way of periodic detention face full-time custody.

Third, the bill seeks to overcome the delays that presently occur once breach action against a detainee has been commenced by the department. The bill will overcome these delays by removing the cancellation process from the courts and placing it with the Parole Board. The Department of Corrective Services believes that this change will reduce the time taken to cancel a periodic detention order, which in some cases can take several months. Under the bill, cancellation should take only a matter of weeks in routine cases and possibly only
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days in urgent cases. The board already has the parallel function of revocation for breaches of home detention sentences, and the new provision is consistent with the provisions of the home detention legislation.

The bill will require a court to set a fixed term or a minimum and additional term at the time of sentencing a person to periodic detention. I am given to understand that at present a court does not do so at the time of sentencing, though it may do so if it has to cancel a periodic detention order that has more than six months left to run. By requiring a court to complete the sentencing function at the beginning, the bill clears the way for the Parole Board to become the cancelling authority.

I am sure honourable members would agree that in many cases sentencing people to periodic detention is a much better option than sentencing them to full-time imprisonment. It is much cheaper for the community because the cost of keeping a person in full-time imprisonment is extremely high - some $50,000 per annum for each prisoner. Periodic detention is also a far better option from a social point of view. If persons who commit a crime are able to serve the penalty for that crime by way of periodic detention, they do not lose links with their families, they may still be able to carry on with their employment, they do not become a further burden on the State, and their families are not forced to apply for social welfare.

However, magistrates have drawn to my attention a problem that exists in country areas. If a person sentenced to periodic detention lives in a country town such as Walgett, Moree, or perhaps Bourke, it is necessary for that person to travel a great distance to the nearest gaol. If the person is not very well off, and if he or she does not have any means of transport, it is not possible for that person to get to the gaol because of the distance involved.

That problem will not apply to people living within the Sydney metropolitan area. It may be more of a problem in the Riverina, where I live, than it is in western New South Wales. People who live in Bourke, Walgett or Broken Hill would go to Broken Hill to serve periodic detention. I do not know where the Government intends to send periodic detainees who live in the Riverina because Junee gaol is a private institution that will not take periodic detainees. If, for example, periodic detainees from the Riverina have to travel to Goulburn, which is a considerable distance, and if they have no private transport or friends to assist them, they will not appear to serve their sentences as the court has laid down.

Although I support the tightening up of the legislation and periodic detention as an option, I would like the Minister in his reply to explain how such detainees will be able to serve their sentences. No good purpose will be served if an individual sentenced to periodic detention fails to meet the terms of the detention order and the court or the Parole Board imposes full-time imprisonment. We need to assist those people by providing some form of transport from their home town - where they have their jobs and their families - to carry out the sentences imposed upon them. If the Minister can allay my concerns I shall be even happier than I am now to support the bill.

The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [2.42 p.m.], in reply: I thank honourable members for their contributions and support for the bill. The Hon. I. Cohen appears to be under a misapprehension regarding new section 5(1A), which reinforces the intention that a court must first determine on a sentence of imprisonment, and only then consider whether that sentence should be served by way of periodic detention. The offender will not be taken to gaol and imprisoned in the interim. Indeed, there would rarely be an interim of any length. The wording of the section means that a two-stage intellectual process will occur. The judicial officer must first determine that a particular offence merits imprisonment.

Second, the judicial officer must determine that the penalty may be served by way of periodic detention. The provision is designed to avoid net widening, to ensure that courts do not impose a periodic detention order in cases in which they would never have considered a full-time custodial sentence. In response to the contribution of the Hon. Elisabeth Kirkby, the Government has constructed new periodic detention centres - PDCs - at Bathurst and Broken Hill, which will become operational shortly. Both are areas of high Aboriginal incarceration. Similarly, the Government has converted part of Tamworth gaol into a PDC. The Tamworth area also has a relatively high Aboriginal population. Periodic detention is also available at Grafton, Tumbarumba, the Hunter and the Illawarra, in addition to the Sydney metropolitan area.

The Department of Corrective Services is happy to discuss with Aboriginal communities ways in which attendance for periodic detention might be facilitated - for example, by provision of a bus pick-up service. I understand that such innovative possibilities are being explored by the department prior to the opening of the Broken Hill PDC. Clearly, however, there must be a minimum number
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of eligible offenders in an area to establish a periodic detention centre. There is no point in a court making a periodic detention order if an offender lives hundreds of kilometres from the nearest PDC. The court would simply be setting up the offender for failure. The Mannus PDC at Tumbarumba is close to the Riverina, and could service that area. I commend the bill to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages.

The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [2.46 p.m.]: I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The Government is pleased to introduce the Police Service Amendment (Alcohol and Drug Testing) Bill 1998. This bill is evidence of the Carr Government’s commitment to law and order in this State and, in particular, its commitment to protecting public safety and wellbeing. Unfortunately, a number of tragic incidents have occurred over the last year in which members of the public, and police officers, have been killed or seriously injured as a direct result of police action. After the recent inquest into the shooting of Roni Levi, State Coroner Derrick Hand made certain recommendations. He recommended that police directly involved in shootings be tested for the presence of alcohol or prohibited drugs immediately afterwards. This recommendation is intended to remove one cause of doubt as to the exercise of a police officer’s judgment if such incidents arise in the future.

The Government believes this is a positive recommendation which supports police officers, members of the public and their families. The Government fully supports the introduction of mandatory testing. This bill implements the recommendations of the Coroner. I trust it will be supported by all. As members of this House will remember, the Government introduced random and targeted testing of police officers in 1997 in response to recommendations by the Royal Commission into the New South Wales Police Service. The testing program is aimed at improving the health, safety and wellbeing at work of members of the Police Service and the safety of the general community by establishing a code of behaviour regarding alcohol and drug use. It is clear from the results so far that testing is a significant deterrent against alcohol abuse on the job. To date 6,519 random tests have been conducted, six targeted tests have been conducted, 10 positive readings above 0.02 have been detected, and 67 officers have had readings between zero and 0.02.

The changes the Government is bringing forward today do not affect the existing testing program. This will continue. However, in response to the Coroner’s recommendation, the Government believes that it is appropriate to extend existing testing provisions to include mandatory tests of officers directly involved in specific incidents. These are police shootings, high speed pursuits in which a member of the public is seriously injured or killed, and other incidents where a member of the public dies in police custody as a direct result of police action. High speed pursuits potentially place police officers, suspects and members of the public at risk. In the event of a police pursuit leading to death or serious injury, it is desirable that mandatory testing extend to the police officers involved. This includes the driver and team member in the car. Other officers may also need to be tested depending on an assessment of the situation by the appropriate supervisor. The investigation of deaths in custody requires strict accountability, which mandatory testing will provide. To provide this accountability and consistency of approach, mandatory tests will be incorporated into standard operating procedures for all shootings, high speed pursuits and deaths in custody.

I believe, to be effective, mandatory testing must be carried out as quickly as possible after the incident. The bill will permit alcohol testing by way of breath analysis to be carried out straight away by authorised personnel at local level. Drug testing will be administered by non-sworn personnel and co-ordinated by the drug and alcohol testing unit of the human resources command. In addition, medical practitioners will be permitted to take a blood sample from an incapacitated officer at the direction of an authorised person. This means that officers who are hospitalised or taken from the scene can be tested within a reasonable time. The addition of mandatory testing is a commitment to protecting public safety as well as the safety and wellbeing of police officers. I am pleased to be able to say that the latest extension to the service policy was developed jointly between the Government, the Police Service, the Police Association and the Commissioned Police Officers Association. This bill demonstrates the Government’s commitment to the safety of the people of New South Wales, and to police officers who must deal with dangerous situations. I commend the bill to the House.

The Hon. M. J. GALLACHER [2.46 p.m.]: The Opposition is pleased to support the bill, as the Attorney General would expect. The bill will amend section 211A of the Police Service Act to provide for the testing of police officers who have been involved, whilst on duty, in an incident in which a person has been killed or seriously injured as a result of a police motor vehicle pursuit or police shooting, or in which a person has been killed while in police custody, to ascertain whether those officers were affected by alcohol or drugs. The legislation is a result of the recommendations of the Wood Royal Commission into the New South Wales Police Service.

As a member of the Committee on the Office of the Ombudsman and the Police Integrity Commission, and having spoken to members of that committee, I am pleased to support the legislation. The bill will identify areas of concern within the New South Wales Police Service. It is obvious that
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as a result of a number of incidents, most notably the shooting of Roni Levi on Bondi Beach last year, this matter has come to the Parliament for determination. However, the Attorney General in his reply might explain why police officers are subject to drug and alcohol testing with respect to motor vehicle pursuits when a person is killed or seriously injured, but will only be subject to drug and alcohol testing when a person in their custody is killed. The Opposition is pleased to support the legislation.

Reverend the Hon. F. J. NILE: [2.50 p.m.]: The Christian Democratic Party supports the Police Service Amendment (Alcohol and Drug Testing) Bill, which has as its main aim the introduction of mandatory testing of police officers after shootings or high speed pursuits in which a person is killed or seriously injured, and following deaths in custody which occur within an area of police responsibility, such as a police station. As a result of the inquest into the shooting death of Roni Levi, the Coroner recommended the introduction of mandatory testing of officers involved in such incidents. I understand that the Police Service and the New South Wales Police Association - which was involved in consultations and which assisted in the drafting of this legislation - strongly support this legislation. This mandatory testing is intended to ensure that officers who are on duty are sober and able to exercise judgment unimpeded by alcohol or other substances. It will remove one cause of doubt as to the ability of officers directly involved in such incidents to perform their duties. In regard to police drivers, mandatory testing will not interfere with the existing regime administered under the Traffic Act 1909.

It is a serious matter when officers who are under the influence of alcohol or drugs shoot a person or are involved in an accident after a high speed pursuit. In principle, the policy should be to discourage police from drinking on duty at any time. It is normal practice for police officers not to consume alcohol when they are on duty. Because of their responsibilities they should not consume alcohol prior to going on duty either. I support the monitoring of that provision to ensure that police officers are not under the influence of alcohol at any time. If officers are influenced by alcohol it could seriously affect their attitude towards the public, make them more belligerent and result in them not carrying out their duties in the way that is expected of them. As I said earlier, this area should be closely monitored. At one stage I suggested that we should have mandatory testing of politicians. I made that comment when this legislation was first introduced to ensure that we are also in control of our faculties when we make important decisions in the House.

The Hon. ELISABETH KIRKBY: [2.52 p.m.]: I support the Police Service Amendment (Alcohol and Drug Testing) Bill. The purpose of the bill is to introduce mandatory drug testing for police officers who have been involved, while on duty, in an incident in which a person has been killed or seriously injured either as a result of a police motor vehicle pursuit or a police shooting, or in which a person has been killed whilst in police custody. This bill was precipitated by the comments of Coroner Derek Hand following an inquest into the shooting death of Roni Levi on Bondi Beach last year. There was a great deal of controversy surrounding the shooting, as Mr Levi was suffering from a mental illness, even though at the time of his death he was wielding a knife. Only three weeks ago a similar situation arose in Wollongong, in which police shot the offender. It is important from the point of view of both the police and public safety that officers exercise their options in response to a dangerous situation with clarity of vision.

It is imperative that decisions made are the best possible decisions at the time of the incident. Obviously, if an officer is affected by alcohol or drugs, that clear judgment will be lessened or impaired. That protection is not only for offenders; it is also for fellow police officers. If all officers are armed and one officer is affected by drugs or alcohol, the potential exists for the situation to escalate, and that would put all officers at further unnecessary risk. It should be remembered that the Government introduced random and targeted testing of police officers in 1997, following one of the recommendations of the Wood royal commission. That testing was introduced mainly to address the abuse of alcohol by police officers. This bill will merely extend these testing provisions, which will continue as presently conducted. Figures available to date indicate that 6,519 random tests and six targeted tests have been conducted. Ten positive readings have been detected above 0.02, and 67 officers have recorded a range of between zero and 0.02. The regulations that govern the random and targeted testing provide for an officer to be sent off duty for returning a positive test, after which counselling will take place.

I am informed by the Minister’s office that drug testing, as opposed to testing for alcohol, has not as yet been implemented. The Minister’s office, in conjunction with the Police Association, is at present researching the available testing procedures. It hopes that there will be a regime for drug testing in place some time later this year. The Minister’s office has also informed me that the Police Service as a whole has reacted in a positive way to the random testing procedures. Apparently, certain area
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commanders advise officers when they attend functions that they should not drink at all if they have to be on duty the next day. That represents a pleasing change in police culture. I am sure it will raise the public’s opinion of the Police Service as a whole. It should also be noted that there is already in place a regime under the Traffic Act which requires the taking of blood samples from persons, including police officers, attending or admitted to a hospital for examination or treatment following a motor accident on a public street.

These amendments will not affect the operation of these provisions. This bill has been the result of consultation between the Government, the Police Service, the Police Association and the Commissioned Police Officers Association. Staff from my office spoke to Mr Greg Chilvers of the Police Association and we were assured that the association is happy with the bill being introduced and that it is in full agreement with the Coroner’s recommendations. I believe that there will be further ongoing discussions regarding the practicalities of the implementation of this bill in the near future. On behalf of the Australian Democrats, I am happy to support the bill and I trust that it will have the desired effect of providing greater protection and safety not only to the police but also to the public.

The Hon. R. S. L. JONES [2.56 p.m.]: I support the Police Service Amendment (Alcohol and Drug Testing) Bill, which is based on a recommendation by the State Coroner at Glebe, Mr Hand, following the tragic shooting of Roni Levi. The Hon. Elisabeth Kirkby referred earlier to another shooting of an apparently disturbed person. Is the death penalty now being imposed on disturbed persons carrying knives on the streets of Sydney? I hope that this legislation will act as a deterrent. If police know that they will be tested for drugs and alcohol they might not be so quick to use their guns on disturbed people. Why were those people not shot - if they had to be shot at all - in their legs or in another part of their bodies? Why were they shot in the chest? There is a serious problem with police procedures when people are being shot in the chest.

Reverend the Hon. F. J. Nile: They are trained to aim for the bulk of the body.

The Hon. R. S. L. JONES: Reverend the Hon. F. J. Nile, who has two sons in the Police Service, says that police officers are trained to shoot in the body. However, police officers can just as easily be trained to shoot in the leg, the arm or the shoulder and not just the centre of the body, which kills people. In my view, that is a completely unnecessary and tragic loss of life.

Coroner Hand also recommended the expedition of the provision of capsicum sprays and extendable batons, which might well have saved the life of the last person who was unfortunately shot to death. I understand that the Police Service is supportive of these recommendations. I implore members of the Police Service to be careful in the future when they are confronted with persons brandishing a knife or knives. Those people are probably more of a danger to themselves. Police officers should use either capsicum sprays or extendable batons and, if they have to shoot, they should not shoot in the heart but in another part of the body so that lives are not unnecessarily lost.

The Hon. I. COHEN [2.59 p.m.]: On behalf of the Greens I support the Police Service Amendment (Alcohol and Drug Testing) Bill. The Greens commend the Coroner, Mr Hand, on his recommendation after the tragic shooting of Roni Levi on Bondi Beach, which has been an added incentive for Parliament to pass this bill. Given the number of tragic accidents and other injuries that have occurred during the past year as a result of police action, the bill makes it incumbent on police to be tested, both after specific events, as set out in the bill, and randomly.

To date 6,519 random and six targeted tests have been conducted, with 10 positive readings above 0.02 and 67 readings between zero and 0.02. It is appropriate that this testing regime continue in order to break the police cultural belief that it is acceptable to drink on the job. In today’s world of high-speed pursuits, with their potential danger to the innocent public, the concept of police drinking on the job must be eradicated. It is with pleasure, therefore, that the Greens support the bill.

The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [3.01 p.m.], in reply: I thank honourable members for their support for this bill. Even as I speak, the Hon. M. J. Gallacher is being briefed on matters that he raised about differentiations in the regime. I am sure that the departmental advisers will provide him with any further information he requires. There is general support for the bill, and I commend it.

Motion agreed to.

Bill read a second time and passed through remaining stages.

The Hon. M. R. EGAN (Treasurer, Minister for State Development, and Vice-President of the Executive Council) [3.03 p.m.]: I move:

Page 5605

That this bill be now read a second time.

I seek leave to have my second reading speech incorporated in Hansard.

Leave granted.

This bill deals with amendments to the Duties Act 1997, Stamp Duties Act 1920, Taxation Administration Act 1996, Petroleum Products Subsidy Act 1997, Revenue Laws (Reciprocal Powers) Act 1987 and Land Tax Management Act 1956. This Government has an ongoing commitment to improving, simplifying and achieving an equitable taxation system in New South Wales. The bill will assist this objective, and a number of proposals are a direct result of consultation with relevant industry bodies, peak interest groups and professional bodies. The primary purposes of the proposed amendments are to implement a number of previously announced concessions and exemptions from State taxes and to modify and clarify the provisions of various revenue Acts.

I will now deal with the amendments to each Act. The Duties Act, which replaces the Stamp Duties Act 1920, was passed by this Parliament on 26 November 1997 with overwhelming support from industry and the professions. The Act received assent on 15 December 1997 and is to commence on 1 July 1998. The period between passage through Parliament and commencement was intended to provide opportunities for business, industry and the professions to acquaint themselves with the new Act, to undertake any necessary finetuning and to allow some other jurisdictions that were preparing similar legislation sufficient time to develop their provisions. Although other jurisdictions have not been able to meet the 1 July start date, the opportunity was taken to maximise the consistency between the New South Wales Act and other States’ proposed Acts.

This bill amends the Duties Act 1997 with minor drafting changes to ensure that liability outcomes are the same as currently exist under the Stamp Duties Act 1920. The bill gives effect to the Treasurer’s announcement of a concession for stock exchange transactions relating to companies incorporated in New Zealand or Papua New Guinea. The rate of duty will be reduced from 0.15 per cent to 0.0025 per cent. The move will further establish New South Wales’ reputation as a key regional financial centre, with increased activity in the financial sector, and more high-quality jobs in Sydney from some of New Zealand’s biggest companies. The bill extends the exemption which applies to certain divorce settlements. The exemption will no longer be dependent on the existence of court orders or court approval. This will provide a considerable saving to the parties to a divorce where they have come to an amicable property settlement. Other amendments to the Duties Act arose from ongoing consultation with industry and professional bodies. It was decided after consultation with the Australian Stock Exchange that the bill will make instalment warrants liable to marketable securities duty from 1 January 1999 and, at the request of the superannuation industry, inserts a definition of annuity.

Further amendments contained in this bill provide exemptions for the transfer of property in exchange for units in index trusts and on redemption of those units; and motor vehicle registration duty on motor vehicles purchased by disabled veterans. While the bill makes a number of amendments to the Duties Act which commences on 1 July 1998, it is also necessary to make a number of similar amendments to the Stamp Duties Act 1920, which applies until 30 June 1998. In addition to the amendments I have already mentioned, the bill amends the Stamp Duties Act 1920 by providing stamp duty concessions and exemptions for the transfer of assets from exempt public sector superannuation funds which will provide the same concession as is currently provided to private sector funds; certain types of insurance policies that were subject to an unintended increase in the rate of duty; motor vehicle certificates of registration when sales tax is not paid; certain agreements liable to nominal duties, such as the Medicare agreement in Taxpack; certain international organisations; and novated motor vehicle leases.

The bill imposes a liability to duty on marketable securities duty on instalment notes, as they are similar to other dutiable marketable securities, and clarifies the hedging concession for options traders. The bill also amends the Taxation Administration Act 1996, which will apply to the Duties Act from 1 July 1998. The amendments allow the two Acts to dovetail and will accommodate transitional arrangements. Specifically, the amendments will extend the five-year limit on reassessments in specified instances, such as leases that may require reassessments for up to 99 years; will empower the chief commissioner to refuse to exercise functions under a taxation law in certain circumstances; will authorise the chief commissioner to refund overpaid amounts without a requirement for a notice of assessment, particularly where a taxpayer has knowingly made an overpayment because a cheque cannot be changed; and will allow the provisions of the Taxation Administration Act to apply from 1 July 1998 to uncompleted assessments, liabilities, refunds, objections and appeals under the Stamp Duties Act 1920.

I turn now to the amendments to the Petroleum Products Subsidy Act 1997. As a result of a High Court decision on 5 August 1997 affecting State business franchise fees, the New South Wales Government ceased collecting licence fees on the sale of petroleum products with effect from that date. At the same time, the Commonwealth Government agreed to impose an excise of 8.1¢ per litre on the sale of fuel throughout Australia, on behalf of the States, on the basis that overcollections received in each State would be refunded so that consumers were not subjected to increases in prices. As Queensland did not impose licence fees on petroleum, that State has been paying a rebate equivalent to the full 8.1¢ per litre excise surcharge since then. New South Wales pays rebates in five zones, on a reducing scale, extending south from the Queensland border at intervals of approximately 50 kilometres. The purpose is to protect New South Wales fuel distributors from unfair competition from Queensland businesses.

In addition, New South Wales, along with other States and Territories, refunds the excise surcharge to all consumers of off-road diesel. The New South Wales Petroleum Products Subsidy Act was passed late last year to regulate the subsidy scheme. The Act provides for subsidies to be paid to wholesalers and passed on by them to eligible service stations and consumers. The Act will be proclaimed to commence as soon as administrative arrangements for the registration and certification of eligible consumers have been completed. In the meantime, subsidy payments have been regulated under administrative arrangements put in place with the agreement of wholesalers.

Minor amendments to the legislation are now proposed in order to introduce transitional administrative arrangements which will allow the Act to be proclaimed in advance of completing the registration of all eligible consumers. These transitional arrangements will allow the Chief Commissioner of State Revenue to pay subsidies to wholesalers who sell product to consumers who are not yet registered but are

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entitled to the subsidy. The wholesalers will have to meet certain criteria, which will ensure that only eligible consumers will get the benefit of the subsidy. The amendments also will allow a purchaser of marine diesel to obtain the benefit of the subsidy without an off-road diesel permit, which reinstates an arrangement that applied under the former business franchise licences scheme. The amendments also allow an appeal to the District Court against certain decisions of the Chief Commissioner of State Revenue, pending the commencement of the Administrative Decisions Tribunal legislation.

The Commonwealth Government currently pays a rebate of excise and customs duties to consumers in certain industry classifications, including primary production and mining. This rebate generally excludes the State surcharge of 8.1¢ per litre, but in the case of diesel used to manufacture explosives, the relevant Commonwealth legislation requires that the State surcharge also be included in the Commonwealth rebate. To prevent double-dipping, the amendments provide that a State subsidy is not payable where the consumer is also entitled to a Commonwealth rebate equivalent to the State surcharge. The bill also contains related amendments to the Revenue Laws (Reciprocal Powers) Act. This Act is part of an Australiawide co-operative scheme which allows for the exchange of information between Federal, State and Territory tax authorities and for the conduct of tax investigations in New South Wales by other jurisdictions.

The New South Wales Petroleum Products Subsidy Act already provides for exchange of information with other jurisdictions in relation to the petroleum subsidy schemes. The amendments to the Revenue Laws (Reciprocal Powers) Act will allow investigations to be conducted in New South Wales by other jurisdictions in relation to their own subsidy schemes, and is essential given the national operations of the large petroleum wholesalers. The bill includes a minor amendment to section 10T of the Land Tax Management Act 1956. This section currently provides an exemption for land acquired for the purpose of building the purchaser’s principal place of residence, so long as the purchaser is not entitled to an exemption for an existing residence in New South Wales. The amendment ensures that a person who owns land and resides in another State or overseas is not entitled to the New South Wales exemption for vacant land. This will ensure that non-residents do not receive favourable treatment compared to New South Wales residents. I table a summary of the bill for assistance of honourable members, and draw their attention to the explanatory notes in the bill. I commend this bill to the House.

The Hon. J. M. SAMIOS [3.03 p.m.]: The Opposition does not oppose the State Revenue Legislation Amendment Bill. In essence, the bill is housekeeping legislation that amends the Duties Act 1997, the Land Tax Management Act 1956, the Petroleum Products Subsidy Act 1997, the Revenue Laws (Reciprocal Powers) Act 1987, the Stamp Duties Act 1920 and the Taxation Administration Act 1996. The New South Wales Duties Act will be the template legislation for all other Australian States. Possibly the most significant amendment is in relation to instalment warrants. After consultation with the Australian Stock Exchange it was decided to make instalment warrants liable to marketable securities duty from 1 January 1999, and, at the request of the superannuation industry, to insert a definition of "annuity".

Further amendments provide exemption for the transfer of property in exchange for units and index trusts and on redemption of those units; and exemption from motor vehicle registration duty on motor vehicles purchased by disabled veterans. The Duties Act is also amended to ensure that liability outcomes are the same as currently exist under the Stamp Duties Act 1920 - giving effect to the Treasurer’s announcement of a concession for stock exchange transactions for companies incorporated in New Zealand or Papua New Guinea. Whilst the Opposition does not oppose the legislation, it will move an amendment to reinstate the requirement upon the Treasurer to report in relation to tax increases announced in 1996.

Reverend the Hon. F. J. NILE [3.06 p.m.]: The Christian Democratic Party is pleased to support the State Revenue Legislation Amendment Bill, which makes amendments to the Duties Act 1997, the Land Tax Management Act 1956, the Petroleum Products Subsidy Act 1997, the Revenue Laws (Reciprocal Powers) Act 1987, the Stamp Duties Act 1920 and the Taxation Administration Act 1996. The amendments will in a number of ways increase State revenue. One amendment will provide a number of tax concessions or exemptions, including those previously announced, to reduce stamp duty on stock exchange transactions involving New Zealand and Papua New Guinea companies, which will result in a reduction in revenue of $1.5 million per annum. There will also be an exemption from stamp duty on motor vehicles purchased by disabled veterans.

The legislation will also impose a liability of stamp duty on certain warrants and instalment notes traded on the Australian Stock Exchange, resulting in a revenue increase of $1.5 million per annum, which will offset the reduction in stamp duty. There are some minor amendments that have no real effect on revenue. Finally, the legislation will close a loophole in the land tax legislation that allows persons living interstate to gain a land tax exemption for land acquired for the purpose of building a principal place of residence in New South Wales. The net effect of the bill is to increase revenue by $9.8 million per annum. Mr J. W. Purcell, Chief Commissioner of State Revenue, has provided a detailed submission on the legislation, dated 26 May 1998. I will not take the time of the House by reading that document onto the record, as I assume other members have read it. However, I seek leave to table it.

Leave granted.

The Christian Democratic Party is pleased to support the bill.

The Hon. R. S. L. JONES [3.10 p.m.]: The Treasurer’s original briefing document for the
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crossbenches said that the net effect of the proposals in the bill would be to increase revenue by $9.5 million. When my policy adviser Barry Davies contacted Mr Purcell, Commissioner of State Revenue, he was told that the legislation would have virtually a zero net effect. The main effects of the bill are as Reverend the Hon. F. J. Nile said: the introduction of stamp duty on warrants and instalment notes, which will increase revenue by $1.5 million; and a reduction of more than $1 million in stamp duty on dealings in shares of New Zealand and Papua New Guinea companies. A minor change involves the exemption from stamp duty of motor vehicles purchased by disabled veterans, which will cost about $50,000. The bill is not a revenue raising measure; its net effect will be close to zero.

The Hon. M. R. EGAN (Treasurer, Minister for State Development, and Vice-President of the Executive Council) [3.11 p.m.], in reply: I thank members for their contributions.

Motion agreed to.

Bill read a second time.

Clause 2, new clause 9 and new schedule 7

The Hon. J. M. SAMIOS [3.13 p.m.], by leave: I move Opposition amendments Nos 1, 2 and 3 in globo:

No. 1 Page 2, clause 2(2). Insert after line 8:

section 9 and Schedule 7 on the date of assent to this Act

No. 2 Page 3. After line 28, insert:

9 Amendment of State Revenue Legislation Further Amendment Act 1996 No 55

The State Revenue Legislation Further Amendment Act 1996 is amended as set out in Schedule 7.

No. 3 Page 28. After line 3, insert:

Schedule 7 Amendment of State Revenue Legislation Further Amendment Act 1996

Section 6

Insert after section 5:

6 Reports on operation of amendments

(1) The Treasurer is to prepare a report as soon as possible relating to the preceding quarters, and thereafter as soon as possible after the end of each quarter (commencing with the quarter in which this section commences):

(a) stating as accurately as possible how much revenue has been received by the State during the quarter as a result of the amendments made by each of the Schedules to this Act, and

(b) describing the financial results since the commencement of this Act of the amendments made by each of the Schedules to this Act, and

(c) outlining alternatives that may be appropriate to deal with:

(i) the issues that led to or were considered in connection with the enactment of this Act, and

(ii) any issues that arise from the enactment and operation of this Act, and

(d) stating whether or not the sum of $902 million has been received by the State as a result of amendments made by this Act.

(2) The Treasurer is to table, or cause to be tabled:

(a) a copy of the reports relating to the preceding quarters in each House of Parliament within 15 sitting days of the commencement of this section, and

(b) a copy of the report relating to each quarter ending after the commencement of this section, in each House of Parliament within 15 sitting days of the House after the end of the quarter.

(3) If the information needed to complete a report under subsection (2) (a) or (b) is not available within the period required by that paragraph, copies of the report are to be tabled as soon as possible after the information becomes available.

(4) The requirement for reports to be prepared and tabled under this section ceases:

(a) when a report has been tabled under this section stating that the sum of $902 million has been received by the State as a result of the amendments by this Act, or

(b) when the following have occurred:

(i) the interim period referred to in Part 4 of Schedule 2 to the Pay-roll Tax Act 1971 has ended, and

(ii) Part 2 of Schedule 3 has commenced.

(5) In this section and section 2:

preceding quarters means the quarters ending with the last days of June 1997, September

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1997, December 1997 and March 1998 and any subsequent quarter that has ended before the commencement of this section.

quarter means a period of 3 months ending with the last day of March, June, September or December.

In essence, the amendments relate to the reinstatement of the requirement that the Treasurer report to the House on the revenue that he receives. The amendments provide that the Treasurer is to prepare a report as soon as possible relating to the preceding quarters, and thereafter as soon as possible after the end of each quarter, stating accurately, among other things, how much revenue the State has received during the quarter as a result of the amendments made by each of the schedules to the Act, and describing the financial results since the commencement of the Act.

It is a good principle that justice should not only be done but be seen to be done. That applies also to the accumulation of the wealth and the resources of the State. The taxpayers are vitally interested to know exactly how much the Treasurer receives by way of cash flow or income. Pursuant to the principle of accountability, these are good and worthy amendments.

The Hon. M. R. EGAN (Treasurer, Minister for State Development, and Vice-President of the Executive Council) [3.16 p.m.]: I am not quite sure of the purpose of the amendments, because each quarter the Government reports in the Government Gazette on the revenue it receives under all sorts of headings. I would have thought that was the simplest way for members of Parliament to see what revenue the Government was receiving.

Question - That the amendments be agreed to - put.

The Committee divided.

Mr Bull Rev. Nile
Mrs Chadwick Dr Pezzutti
Mrs Forsythe Mr Ryan
Mr Gallacher Mr Samios
Miss Gardiner Mrs Sham-Ho
Dr Goldsmith Mr Rowland Smith
Mr Hannaford
Mr Kersten Tellers,
Mr Lynn Mr Jobling
Mrs Nile Mr Moppett Noes, 21

Mrs Arena Ms Kirkby
Dr Burgmann Mr Macdonald
Ms Burnswoods Mr Obeid
Mr Cohen Mr Primrose
Mr Corbett Ms Saffin
Mr Dyer Mr Shaw
Mr Egan Ms Tebbutt
Mr Johnson Mr Vaughan
Mr Jones Tellers,
Mr Kaldis Mrs Isaksen
Mr Kelly Mr Manson

Question so resolved in the negative.

Amendments negatived.

Clauses and schedule agreed to.

Bill reported from Committee without amendment and passed through remaining stages.

Assent to the following bills reported:

Fire Services Joint Standing Committee Bill
Fire Services Legislation Amendment Bill
Traffic Amendment (Pay Parking Schemes) Bill
Police Integrity Commission Amendment (Records) Bill
Marketing of Primary Products (Murray Valley Wine Grape Industry) Special Provisions Bill
Marketing of Primary Products Amendment (Rice Marketing Board) Bill
Pawnbrokers and Second-hand Dealers Amendment Bill
Roads and Traffic Legislation Amendment (Load Restraint) Bill
Road Transport (Vehicle Registration) Amendment Bill
Traffic Amendment (Variable Speed Limits) Bill

The Hon. M. R. EGAN (Treasurer, Minister for State Development, and Vice-President of the Executive Council), on behalf of the Hon. J. W. Shaw [3.28 p.m.]: I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

It gives me great pleasure to introduce the Local Government Amendment (Meetings) Bill, which will reduce the complexity

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of the procedure for closing council meetings and simplify the process for providing information from closed meetings to the public. Members will recall that the Local Government Act was amended in late 1997 to increase public access to council meetings and expand and simplify access by the public and councillors to council-held information. These reforms were welcomed and well received by the public and local government generally.

However, subsequent to the commencement of the legislation, it became apparent that some of the provisions needed to be refined because, while they were intended to promote greater openness, they were found to be placing additional tasks on councils, without achieving the intended result. The bill will rectify these matters without detracting from the effectiveness of the open meeting reforms. The Local Government Act currently requires that, before any part of a meeting is closed to the public, members of the public must be allowed to make representations to or at a meeting as to whether that part of the meeting should be closed.

While the Government maintains the view that councils should generally have regard to the views of the community as to whether a meeting should be closed to the public, it recognises that there are some circumstances where the very nature of the subject will be one where there is no doubt that the meeting should be closed to consider the item. Matters coming within this category would include a personnel matter concerning particular individuals, the personal hardship of a resident or a trade secret. There may also be other matters which by their very nature would not justify discussion on whether the meeting should be closed. It would be a waste of time for councils and the public to listen to arguments about why part of the meeting should not be closed to the public when it is patently obvious to all except a contentious individual that the matter should be dealt with at a closed meeting.

The bill will amend the Act to give councils the discretion to allow members of the public to make representations to or at a meeting as to whether part of that meeting should be closed to the public. When the local government open meetings reform bill was passing through this House in 1997 the Opposition’s spokesperson on local government, the Hon. Duncan Gay, introduced an amendment requiring each council to furnish the Minister with a report specifying the amount of time council meetings were closed to the public, expressed as a percentage of the total time of the council’s meetings.

This provision was poorly conceived by the Opposition because it is not the quantity of time spent in closed session that is the issue but, rather, it is the appropriateness of excluding the public from the meeting in the first place. The council reports would provide no meaningful performance measurements with which to judge the appropriateness of meeting closures. They would merely require councils to use scarce resources to compile the statistics and report to the government for no practical purpose. The bill shall remove this unnecessary requirement and allow councils get on with doing the business for which they are elected.

The third principal amendment in the bill relates to the requirement under section 10E of the Act for the minutes and business papers of the closed parts of meetings to be made available to the public immediately after the need for keeping the information confidential has passed. Councils are currently required to determine release dates from which public access can be given to the documents and to keep a register of those documents and their release dates. These requirements do not apply to records involving issues of personal hardship, personnel matters and trade secrets.

Concern has been expressed that some councils may determine unnecessarily long periods, possibly as much as five or 10 years, for the release of documents from closed meetings to ensure that confidential information is not prematurely released. Concern has also been expressed that the entering of documents into a register is resource hungry. The aim of the current provision is to enable public access to minutes and business papers of closed parts of meetings. This can be achieved by using the Freedom of Information Act. The Local Government Act already allows the Freedom of Information Act to be used to obtain access to documents from closed meetings. Under the Freedom of Information Act access must be given to a council document unless it is an exempt document or it is otherwise available for inspection. However, matters from closed meetings do not have to be disclosed if they are still confidential.

The bill will remove the conflict between the procedure under section 10E of the Local Government Act and the Freedom of Information Act. It will also mean that councils will no longer have to spend time deciding on release dates and using resources in keeping the register. I anticipate that the Local Government Amendment (Meetings) Bill 1998 will assist councils in conducting their meetings and providing information to the publicly more efficiently and economically while maintaining the current high standards for public access to council meetings and information. I commend the bill to the House.

The Hon. D. J. GAY [3.30 p.m.]: The Opposition supports the bill. However, Opposition members wonder why this matter is before the House again. We wonder why the Minister failed to take this action in the first place. Now the Minister beats up this issue and has this House revisiting the issue.

The Hon. Jan Burnswoods: Be a little generous.

The Hon. D. J. GAY: I am being very generous to the Minister! It is unbelievable that the Minister, who engineered this legislation, so mucked it up. In fact, he and Government members sided with crossbench members to defeat amendments that the Opposition moved last year to the establishing legislation. In great part, those amendments are the measures being revisited today. I repeat: the Opposition supports the bill although it is a clear example of a Government backflip. Backflips have become the trademark of this Minister, but this is a classic backflip - a backflip with pike, tuck and companion animal.

The Hon. I. Cohen: You too have done a backflip.

The Hon. D. J. GAY: I admit that, unlike certain Ministers. I change my mind when I am convinced that something better is available.

The Hon. Jan Burnswoods: Give us an example.

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The Hon. D. J. GAY: I will in a moment.

The Hon. Jan Burnswoods: When you think of one.

The Hon. D. J. GAY: I will give the honourable member an example if she is patient. By way of history, the passage last year of the Local Government Amendment (Open Meetings) Bill saw all but one of the coalition’s 14 amendments - which had the support of the Local Government and Shires Associations of New South Wales - defeated in Committee in this Chamber. Those Opposition amendments were defeated with the support of the Government in that instance. Our amendments were aimed at achieving a number of goals, including the setting of time limits for members of the public to address councils on the proposed closure of council meetings; ensuring councils annually report the percentage of time spent in closed meetings; and bringing councils into line with other public instrumentalities when freedom of information material is available. The Hon. Jan Burnswoods should listen carefully because she wanted to hear what I have to say next.

The Hon. Jan Burnswoods: I wanted to hear why you changed your mind.

The Hon. D. J. GAY: Unfortunately, the only successful amendment that I moved was the one requiring councils to report the percentage of closed meeting time. Understandably, that provision has caused some discomfort among councils across the State because it could not work in isolation. The Opposition therefore supports the bill introduced by the Minister because in part it seeks a reversal of that amendment. The Hon. Jan Burnswoods said she was waiting for that example, but I do not hear her interjecting to compliment me.

The Hon. Jan Burnswoods: I am sorry, I was not listening. I will listen carefully from now on.

The Hon. D. J. GAY: Now the Minister has introduced amendments to reduce the complexity of the procedures for closing council meetings and to simplify the process by which information from closed meetings is provided to the public. Regarding the reduction of complexity of the procedure for closing council meetings, the Opposition agrees that there are no doubt circumstances in which a meeting should be closed, such as where the meeting will debate staff matters involving individual employees.

I do not believe the particulars of an employee should be debated in public. It is also apparent that a great deal of the time of a council would be wasted if the council were required to allow anyone to address it on whether a meeting should be closed. Under the bill councils will have discretion to allow people to make representations on whether a meeting should be opened. There has been community concern that individuals might be hamstrung in making representations about whether meetings should or should not be closed and that they might be thwarted from speaking on what should be open matters.

The Opposition appreciates those concerns and trusts that the councils will act responsibly in this respect. The Opposition warns, however, that a close eye will be kept on this matter. If councils fail to act responsibly, we will be revisiting this provision. So it is up to the councils to perform properly, for if they do not the Opposition will certainly be keen to revisit this matter.

The amendment in the bill that will remove conflict between the procedure under section 10E of the Local Government Act and the Freedom of Information Act is welcomed by the Opposition. The Minister and his advisers should note that the Opposition finds this amendment also strangely familiar. As I have stated, last year the Opposition attempted to move an amendment to bring councils into line with other public instrumentalities when freedom of information material is available. It seems the current bill embraces the spirit of that amendment.

The reality is that this is another backflip by the Government. However, the Opposition cannot but support such a backflip if it means a streamlining of processes and a better balance between public access to council meetings and information and making council processes more efficient. Given that the Opposition tried to move amendments to include these provisions when the establishing bill was before the House last year, it would be hypocritical if we did not support the bill. The Opposition is pleased to note that the Government is listening to Opposition suggestions. We put on record that we will be watching the functioning of this legislation carefully. If it does not work properly, we will be revisiting it. However, the Opposition supports the bill.

The Hon. I. COHEN [3.36 p.m.]: The Greens have serious concerns about the Local Government Amendment (Meetings) Bill. In fact, the Greens will oppose the bill. We believe it should be called the "closed meetings bill". Last year the Government introduced a bill entitled the Local Government Amendment (Open Meetings) Bill. That bill, which was passed, was supported by the Greens because it
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opened up meetings to the public and clearly defined in new section 10A which parts of a meeting can be closed to the public. Section 10A(4) provides:

Members of the public must be allowed to make representations to or at the meeting, before any part of a meeting is closed to the public, as to whether that part of the meeting should be closed.

The Government seeks to amend this section to give a council discretion to allow members of the public to make representations on whether a meeting or part of a meeting should be closed to the public. The mandatory "must" is being changed to a discretionary "may". In the opinion of the Greens, this change will reduce public participation in that a council may not allow members of the public to make such representations. The Environment Liaison Office issued a press release regarding this bill in which it expressed serious concerns. I quote from the media release a statement made by Mr Jeff Angel of the Total Environment Centre:

In 1997 Environment groups applauded the Government’s tabling of the Local Government (Open Meetings) Amendment Bill as a restraint on recalcitrant councils’ arbitrary exclusion of the public from meetings where controversial issues are discussed. The current Amendment Bill threatens to roll back those positive initiatives and shut the door on public participation in crucial council decisions.

Last year’s Local Government (Open Meetings) Amendment Bill required Councils to give notice of an intention to close a meeting or part thereof, and to clearly state their reasons for doing so. It also specifically allowed for members of the public to make representations to Council as to why meetings should not be closed, for example, on issues of significant public interest. Bewilderingly, the Bill now before the Parliament specifically withdraws those very gains. We are at a loss to understand why the Government would suddenly about-face on one of its own amendments, and one that was welcomed by the General Community.

The decision by Council to close a meeting cuts to the core of fundamental democratic process, and must be made only after serious consideration and consultation with the community. Not only is Mr Page now proposing to exclude members of the public from a Council’s decision to hold a closed meeting, but it also limits people’s ability to access minutes and proceedings of those meetings. What use democratically elected councils when decisions can be made without their being accountable to the very people who elected them?

No doubt it will be argued that administrative ease and time wasting are reasons for the new Bill. However, democracy is not governed by economic rationalist rules of efficiency; it is a creature of the fundamental rights of public debate and any restriction on that right deserves the most serious assessment on a case by case basis.

The Greens have serious concerns about the bill and hope that the Minister will address them. The Greens wonder which way the bill will go if it returns in another form - dare I say, as the "secretly closed meetings bill".

Reverend the Hon. F. J. NILE [3.41 p.m.]: The Christian Democratic Party supports the Local Government Amendment (Meetings) Bill, which contains some positive aspects. The legislation empowers a local council, and those of its committees of which all the members are councillors, to close part of a meeting to the public. The objects of the bill are:

(a) to reduce the complexity of the procedure for closing such meetings and reporting certain details concerning such closures to the Minister and the Parliament under that section, and

(b) to simplify the process for providing access to business papers and minutes from parts of meetings closed to the public.

As other members have said, some sections of the community may be suspicious if local councils conduct closed meetings. However, at times closed meetings will be necessary, perhaps when complex financial arrangements are being entered into, perhaps involving competition from other companies in obtaining the best price for projects. Councils often contract out to companies services such as the collection of garbage, the pumping out of sewage, and so on. On many occasions it is necessary for councils to consider these matters in a closed meeting - not for the benefit of the councillors but for the benefit of the ratepayers. The Christian Democratic Party supports the bill and trusts that councils will be closely monitored to ensure that they do not abuse the procedures. In the main, local government will follow the procedures in a sincere and honest way.

The Hon. R. S. L. JONES [3.43 p.m.]: I oppose the legislation. I am disappointed that the Minister for Local Government has caved in after presumably receiving representations from councils that prefer to conduct their meetings in secret than to allow the public to argue that they should be kept open. The legislation appears to be quite simple, but it is not nearly as simple as it purports to be. The legislation provides that members of the public "must be allowed" to attend proceedings. The bill amends the legislation to give discretion to councils so that they may allow members of the public to argue whether the meetings should be closed.

The bill claims to simplify the process of closing council and committee meetings because of the need to reduce complexity, but it totally ignores the rights of the community for accountable
Page 5612
government. The bill attacks the right of a member of the public to make representations to or at the meeting about whether it should be closed; public access to the minutes and business papers relating to closed parts of the meeting, within a reasonable time, as determined by council; public reporting on how much of the council’s time is spent in closed meetings; and access to the minutes and business papers of the closed meeting after the lapse of the reasonable time. Jeff Angel, of the Total Environment Centre, states:

The closing of a meeting is a fundamental variation of democratic local government and as such is a complex matter affecting people’s rights and accountability. This Bill ejects the role of the public in the decision to act secretly and the later access to key documents about the meeting.

Each decision to act secretly must be held accountable and will be often subject to different circumstances each time. Not only is it proposed to exclude interested and potentially affected members of the public from the decision, it is intended to prevent the voters from knowing how much time the council spent in secret meetings.

No doubt it will be argued that administrative ease and time wasting are reasons for the new Bill. However, democracy is not governed by economic rationalist rules of efficiency, it is a creature of the fundamental rights of public debate and any restriction on that right deserves the most serious assessment.

The Minister will recall that the original legislation to open up meetings came about as a result of representations by a well-known Sydney barrister and me. The Minister acted swiftly in that respect, but now he is doing exactly the opposite and essentially causing the meetings to be closed again. I understand that in his briefing note to us he says that there are areas where clearly the matter should be secret, for example, where there is a matter dealing with personnel. However, by removing the public access to argue, he is allowing the council discretion. There will not be just those occasions where it should be secret but other occasions where it should not be secret. Councils that want to conduct their meetings in secret - and we have a suspicion about those - will do so by using the discretion allowed in the legislation. I oppose the bill.

The Hon. M. R. EGAN (Treasurer, Minister for State Development, and Vice-President of the Executive Council) [3.46 p.m.], in reply: I thank honourable members for their contributions to the second reading debate.

Motion agreed to.

Bill read a second time and passed through remaining stages.

The Hon. M. R. EGAN (Treasurer, Minister for State Development, and Vice-President of the Executive Council), on behalf of the Hon. J. W. Shaw [3.48 p.m.]: I move:

That these bills be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The Fair Trading Amendment Bill is cognate with six bills, namely the Home Building Amendment Bill, the Landlord and Tenant (Rental Bonds) Amendment (Penalty Notices) Bill, the Motor Vehicle Repairs Amendment Bill, the Property, Stock and Business Agents Amendment (Penalty Notices) Bill, the Residential Tenancies Amendment Bill and the Retirement Villages Amendment Bill. Together, these bills are intended to introduce a package of reforms within the fair trading portfolio which are designed to improve consumer rights, enhance dispute resolution mechanisms and strengthen enforcement remedies. The fair trading portfolio covers a diverse range of industries including home building, real estate services, motor dealers and repairers as well as retirement villages. The underlying aim of the regulatory framework which is administered within the fair trading portfolio is the achievement of an efficient and productive marketplace while ensuring that appropriate safeguards are in place to protect consumers.

In accordance with this State’s obligations under the national competition principles agreement, a number of reviews have either started or are shortly to commence in relation to the Acts to which I will be referring. The aim of these reviews is to identify legislative restrictions on competition and to consider possible alternative means, other than such restrictions, for achieving the Government’s objectives. These reviews will be finalised over the next two years and it is expected that significant long-term reform will flow from them. However, there remains a need in the meantime to ensure that the existing regulatory framework continues to

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operate effectively. The proposals covered by these bills have been identified by the Government as reforms which should be introduced without further delay. These are matters where either general community and business consensus exists as to the need for change, or which are necessary for the effective operation of the existing legislation.

Fair Trading Amendment Bill

The Fair Trading Amendment Bill amends the Fair Trading Act to provide for the enforcement by the Supreme Court of written undertakings which are given by persons to the Director-General of the Department of Fair Trading. The Fair Trading Act is intended to complement the Commonwealth Trade Practices Act and mirrors a number of its provisions. Section 87B of the Trade Practices Act allows the Australian Competition and Consumer Commission to accept a written undertaking which is given by a person in connection with a matter in relation to which the commission has a power or function under the Act. This provision enables an administrative - rather than litigated - resolution to be achieved in relation to a potential breach of the Act.

Where a term of an undertaking has been breached the commission may apply to the Federal Court for orders to direct the person to comply with the undertaking, pay compensation or give effect to other appropriate action. The amendment to be made by this bill will maintain consistency with the Commonwealth legislation, by giving the director-general power to accept enforceable undertakings by persons in respect of potential breaches of the Fair Trading Act. The bill also enhances the ability of persons affected by a breach of a prescribed code of practice to seek redress. There are currently two codes established under the Fair Trading Act, namely, the retirement village industry code of practice and the caravan and relocatable home park industry code of practice.

Under section 78A of the Fair Trading Act a consumer may apply to the commercial tribunal for an order in respect of a contravention or alleged contravention of one of the codes. However such an application can only be made with the consent of the Director-General of the Department of Fair Trading or other prescribed person. The bill will extend to all persons covered by a prescribed code the right to seek redress for a breach of the code. This means that not only consumers but also proprietors of caravan and relocatable home parks and managers of retirement villages will be able to apply to the tribunal. The bill will also remove the need for the consent of the director-general or other party to be obtained before a party can commence an action in the tribunal.

Home Building Amendment Bill

As honourable members will recall, in late 1996 significant legislative reforms were introduced in relation to the home building industry. The major change was the replacement of the government operated insurance scheme with one provided by private insurers. These reforms came into operation on 1 May 1997. The new insurance scheme provides protection for consumers against faulty and incomplete building and trade work. In the case of owner-builders, insurance cover has to be arranged only if the dwelling is sold within seven years from completion of the work. This insurance cover operates to protect the new owner of the property.

Trade contractors engaged by an owner-builder to do part of the building work, for example, a bricklayer, are not obliged to take out insurance for their work. As a result, unless the trade contractor voluntarily agrees to take out a policy the owner-builder has no access to the benefits of insurance cover in respect of defective or incomplete work done by the trade contractor. The Government believes that there is no reason that owner-builders who engage licensed trade contractors should be worse off than other consumers and that, accordingly, insurance cover should be available to owner-builders in these circumstances.

The Home Building Amendment Bill will amend the Home Building Act to make it compulsory for licensed contractors undertaking work for owner-builders in excess of $5,000 to have in place insurance cover which protects those owner-builders. One of the other reforms which was introduced in 1996 for the home building industry related to a building contractor’s right to place a caveat on the title to a consumer’s land. The right to lodge a caveat is often provided for in building contracts and is seen as a way to secure payment for the builder. However, this right has been abused by some unscrupulous contractors. The anti-consumer nature of caveat clauses in building contracts was recognised by Parliament in 1996 when it moved to limit the right to lodge a caveat to the situation where the contractor obtains a judgment against the consumer.

Unfortunately, doubts have arisen as to whether the provisions which were introduced on 1 May 1997 are legally effective in preventing contractors from inserting caveat clauses in their contracts. This bill will clarify the operation of the Home Building Act in relation to caveat clauses in home building contracts and contracts for sale of kit homes. The amendment to be introduced by this bill provides that a contractor will have an interest in land which can be protected by a caveat only if, first, the contractor obtains a judgment against the home owner, second, the contract provides that non-payment of a judgment gives this right; and, third, the judgment debtor is the owner of the land at the time the caveat is lodged.

The bill will also amend the Act to enable a regulation to be made to allow a penalty notice to be served in respect of a prescribed offence under the Act. If the alleged offender does not wish to have the matter dealt with by a court he or she may elect to pay the penalty set out in the notice. When the penalty is paid no further proceedings may be taken in respect of the alleged offence. Payment of the penalty does not constitute an admission of liability or prejudice any civil claim or proceedings relating to the same occurrence. The amount of the penalty will be prescribed and cannot exceed the maximum amount which can be imposed by a court. Similar provisions allowing for penalty notices are contained in other legislation in the fair trading portfolio, namely, the Fair Trading Act, the Motor Dealers Act and the Trade Measurement Administration Act. The use of penalty notices reduces the compliance costs of both the Department of Fair Trading and traders. It also allows persons to have breaches dealt with without the need to attend court if they should so choose. It must be stressed that the amendment does not take away a person’s right to have a matter determined by a court.

Residential Tenancies Amendment Bill

Landlord and Tenant (Rental Bonds) Amendment (Penalty Notices) Bill

Property, Stock and Business Agents Amendment (Penalty Notices) Bill

Penalty notices are also proposed to be introduced in relation to the Residential Tenancies Act, Landlord and Tenant (Rental Bonds) Act and the Property Stock and Business Agents Act. Other amendments are contained in the Residential Tenancies

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Amendment Bill relating to termination of residential tenancy agreements on the ground of hardship. Section 69 of the Residential Tenancies Act makes provision for landlords to apply to the residential tenancies tribunal for termination of a tenancy agreement because of undue hardship. If the tribunal makes such a termination order it may also order the landlord to pay compensation to the tenant for the loss of the tenancy.

While a landlord may apply for an order to end a tenancy on hardship grounds, there is no equivalent provision for a tenant to apply to terminate a tenancy on the grounds of hardship. This amendment will overcome this inconsistency, so that a tenant facing difficult circumstances can apply to the tribunal for an order allowing the agreement to be terminated. If the order is made, the tribunal will also be able to order, if appropriate, the payment of compensation to the landlord. Undoubtedly, tenants would prefer to seek the approval of the tribunal in breaking a tenancy rather than just suddenly abandoning the premises. By openly seeking an order from the tribunal to break the agreement because of personal hardship, there will be more opportunity for a negotiated settlement fair to both parties. The bill also provides that where a tenancy is terminated on the ground of hardship on the application of either the landlord or the tenant the party seeking compensation must take all reasonable steps to mitigate his or her loss.

Retirement Villages Amendment Bill

The Retirement Villages Amendment Bill deals with two issues which the Government believes should be addressed at this time rather than awaiting the outcome of the review of the retirement village industry, currently being undertaken by the Department of Fair Trading. The retirement villages consultative committee has identified a need to provide for a dispute resolution process to resolve budget impasses. While the mandatory retirement village industry code of practice provides that residents must have input into the development of, and agree to, a village budget, there is presently no remedy for situations where residents taking part in a vote on the budget refuse to agree to that budget. Management and residents may not be prepared to alter their positions and the effective operation of the village may be threatened by a continuing dispute.

The residential tenancies tribunal has jurisdiction to deal with many retirement village disputes but it has no power to deal with budget impasses. The bill provides that the tribunal will have sufficient jurisdiction to bring budget disputes to a conclusion. There was consensus within the consultative committee that the residential tenancies tribunal, equipped with specific jurisdiction, was the appropriate forum for the resolution of budget disputes. The tribunal will have the power to give directions to the parties as a mechanism for finding a solution to the impasse and if necessary will be able to make orders effectively ruling that a retirement village budget is reasonable or unreasonable thus allowing the operation of the village to continue. In making its determination the tribunal may have regard to a range of matters such as the level and cost of services and facilities desired by the residents and the general market level of residents’ fees paid at similar retirement villages in the locality or a similar locality.

However, its determination must accord with the contractual obligations of the administering authority to provide services and facilities. The other amendment contained in the bill will operate to clarify resident’s rights where a retirement village complex is no longer occupied by a majority of retired persons. The Retirement Villages Act and the code of practice currently apply to establishments which are predominantly occupied by retired persons. What is not clear is the application of the existing legislation to an establishment which originally operated as a retirement village but which no longer has a predominance of retired people in residence. While it is not common for a retirement village to change its identity to another form of establishment, such circumstances have arisen and this has left the remaining residents uncertain of their rights.

The bill provides that the rights and obligations of retirement village operators and residents will continue as long as there are any retired persons remaining in the complex. This amendment will remove any possibility that aged persons who entered into contracts for the provision of services in a retirement village will have services removed because of a change in the mix of people living in the complex. Operators of village complexes will not be prevented, where their development approval allows, from altering the nature of their establishments but they will quite properly have to continue meeting their obligations under the retirement laws to any remaining retired persons.

Motor Vehicle Repairs Amendment Bill

The Motor Vehicle Repair Industry Council is a statutory body established under the Motor Vehicle Repairs Act 1990. Its role is to license persons undertaking repair work, conduct disciplinary hearings, help resolve disputes, operate a contingency fund, provide education and research funding, and otherwise promote improvement in the standards of motor vehicle repair work. To provide for greater consumer input in the motor vehicle repair industry it is proposed that three additional persons be appointed to the council. Such persons will be chosen by the Minister from persons who have expertise appropriate to the functions of the council. The bill will also amend existing references in section 8 of the Act to the various bodies from which membership of the council is drawn. These amendments have been made to reflect changes in the names of those bodies and/or their merger. I commend these bills to the House.

The Hon. HELEN SHAM-HO [3.49 p.m.]: The Fair Trading Amendment Bill has six cognate bills: the Home Building Amendment Bill, the Landlord and Tenant (Rental Bonds) Amendment (Penalty Notices) Bill, the Motor Vehicle Repairs Amendment Bill, the Property, Stock and Business Agents Amendment (Penalty Notices) Bill, the Residential Tenancies Amendment Bill and the Retirement Villages Amendment Bill. The Opposition will not oppose some provisions of the cognate bills but will oppose other provisions. The Opposition will seek to move amendments to the bills and will ask that they be dealt with individually. Some of the Opposition’s concerns were dealt with by Government amendments moved in the lower House.

The Opposition is gravely concerned at the confused and rushed manner in which the bills were introduced. There is no way that members of this or the other House will be able to debate and consider each bill adequately and on its merits. It is a shame that the Government could not wait until the conclusion of its inquiries and reviews into the
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Residential Tenancies Tribunal, the New South Wales retirement industry and others before it altered the statutory scheme already in place. The Opposition does not approve of hasty legislation. The Opposition is also concerned about the lack of consultation. The people of New South Wales deserve and expect more consultation and discussion. It is an arrogant government that does not check the needs of its electorate. However, it is what we have come to expect from this Government after three long years of non-consultation, particularly in the portfolio of fair trading.

The Fair Trading Amendment Bill will amend the Fair Trading Act 1987. Schedule 1[1] will insert new section 73A, which deals with enforcement of undertakings given to the Director-General of the Department of Fair Trading. Under new section 73A the director-general may accept a written undertaking given by a person in relation to a matter under the Act for which the director-general has a function. New subsection (2) will allow the person to withdraw the undertaking with the consent of the director-general. New subsection (3) will allow the director-general to apply to the Supreme Court for an order under subsection (4). New subsection (4) provides that if the director-general considers that the person has breached a term of the undertaking, the Supreme Court may make the following orders if there is a finding of a breach of an undertaking:

(a) an order directing the person to comply with that term of the undertaking,

(b) an order directing the person to pay to the State an amount not exceeding the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach,

(c) any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach,

(d) any other order that the Court considers appropriate.

This section reflects the scheme under the Commonwealth Trade Practices Act whereby a written undertaking can be enforced by the Federal Court. The corresponding New South Wales section is easily enforced and will save on litigation. The Opposition does not oppose this amendment to the Fair Trading Act 1987. However, in the Fair Trading Amendment Bill the coalition will oppose items [2] and [3] of schedule 1, which will amend section 78A of the Act. The Government amendment in the lower House omits the requirement that the director-general must consent to a consumer bringing an action for breach of a prescribed code. Instead, new section 78A(1) will allow a consumer to apply to the Commercial Tribunal for an order under this section if the prescribed code of practice applies to that person, and if the application relates to a breach or an alleged breach of the code of practice.

Although the Opposition has no problem with consumers gaining access to the tribunal - they have every right to - we are concerned that such a provision would unreasonably open the floodgates and clog up the tribunal. Under the current system, the director-general acts as a screen or filter of possible applicants and may advise, resolve or settle possible disputes at a time earlier than the tribunal hearing. This is certainly a more desirable outcome, and the Opposition will move to amend the section so that any action will still need the approval of the director-general. It is very similar to the racial vilification legislation, whereby the Chairman of the Anti-Discrimination Board will act as a filter to litigation. The Opposition moved this amendment in the other place. However, the Government did not support it.

The Hon. R. S. L. Jones: Why not?

The Hon. HELEN SHAM-HO: It is being very stubborn. The Hon. R. S. L. Jones posed a very good question. The Government just would not accept an improvement to the legislation. The original wording of the Government amendment limits this section to consumers. However, in the lower House the Opposition moved to amend the word "consumers" to "persons" so that all parties to whom the prescribed code applies may make an application to the director-general for access to the tribunal. We are, after all, dealing with the portfolio of fair trading. There is no reason why proprietors who operate under a voluntary code of practice should not be able to air their concerns, just as consumers can. I am pleased that the amendment was agreed to in the lower House and the bill is before this House as amended by the Opposition.

The Home Building Amendment Bill will amend the Home Building Act 1989, and also make consequential amendments to the Fines Act 1996. The Opposition will not oppose most of the amendments to the Home Building Act, although we do have some concerns. However, the Opposition will oppose the introduction of penalty notices contained in this and the three other cognate bills presently before the House. The Home Building Amendment Bill will prevent a holder of a licence who contracts to do residential building work or specialist building work from placing a caveat over a contractee’s land by declaring that such a contract does not give the contractor any legal or equitable interest in any land, and that any contract purporting to do so is void to that extent.

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Other amendments in this bill require contractors engaged by owner-builders of residential properties to take out insurance. Under the previous Act this was only required if the house was sold within seven years of erection. This amendment will give owner-builders the protection they need within that statutory period. However, I cannot understand why the Government would not have included this provision when it first put the scheme into place. Once again, this oversight must be the result of a lack of consultation. The Government has now been forced to do a patch-up job of its own legislation because of lack of communication with the industry. Penalty notices are referred to in the Property, Stock and Business Agents Amendment (Penalty Notices) Bill, the Landlord and Tenant (Rental Bonds) Amendment (Penalty Notices) Bill, the Home Building Amendment Bill and the Residential Tenancies Amendment Bill.

A penalty notice in the Home Building Amendment Bill provides for on-the-spot fines for a prescribed offence under the Act. The penalty notice can be paid, or the recipient can elect to have the matter dealt with in court. It is similar to issuing a motor vehicle ticket. The Opposition’s concern is that the Government’s introduction of penalty notices is an indication of its failure to install sufficient and experienced inspectors in the departments to curb the problem in the first instance. Instead, the Government has gone with an issue-a-notice, think-later mentality, as was stated by the Opposition spokesperson for fair trading in the lower House. These notices may then be contested in court, and the problem continues. The result is that the decision-making process has ultimately been referred to the courts. It would be much more beneficial and expedient for the matter to be dealt with and conciliated where possible by inspectors in the first instance.

Surely this beats court intervention and a lengthy and costly process caused by arbitrary notices. Of course, the same old theme of the Government’s failure to consult relevant groups rears its head again in relation to penalty notices. For example, the Residential Tenancies Consultative Committee has never been approached about this issue and has never discussed or agreed to the proposals contained in the Landlord and Tenant (Rental Bond) Amendment (Penalty Notices) Bill.

The Opposition will not support the implementation of penalty notices at this time. It will oppose their implementation in each of the pieces of legislation being debated at this time. I comment now on the Motor Vehicle Repairs Amendment Bill. This bill will amend the Motor Vehicle Repairs Act 1980. The amendments contained within it basically reflect the changes that have occurred within the organisations that are represented on the Motor Vehicle Repair Industry Council. However, schedule 1[1] to the bill contains a proposed amendment to section 8 to increase the size of the council. Because of the changes in the make-up of the council and the increase in its size, the Minister will be able to appoint three new members to the council. The Minister noted in his second reading speech that these additional places were intended to be for greater consumer input.

Pursuant to sessional orders business interrupted.

The PRESIDENT: I draw the attention of honourable members to the distinguished presence in my gallery of His Excellency Mr Pablo Sader, Ambassador of Uruguay.

The Hon. J. P. HANNAFORD: My question without notice is directed to the Minister for State Development. Is the Minister aware that well-known companies in Australia such as McDonald’s, National Foods, Coca-Cola Amatil, Coles and Woolworths are importing orange concentrate from Brazil for their fruit juices to sell in the Australian market rather than using local products grown in New South Wales? Is the Minister aware that over 600,000 trees have been ripped up, mainly in the Riverina area, as a consequence of this? What steps is the Minister considering taking to encourage Australian companies to buy local products, in particular, primary products?

The Hon. M. R. EGAN: I would have thought that Australian produce was far superior anyway. But I remind the Leader of the Opposition that, under the Commonwealth Constitution, State governments have no control over international trade. This, surely, is a matter that the Leader of the Opposition should take up with the Prime Minister and that the Deputy Leader of the Opposition should take up with the Deputy Prime Minister. If these products are coming into the country and the Leader of the Opposition or the Deputy Leader of the Opposition wants to restrict their importation, clearly they should take up the matter with the Commonwealth Government. The Leader of the
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Opposition should raise his objections with his Federal colleagues.

The Hon. DOROTHY ISAKSEN: I direct my question without notice to the Attorney General, Minister for Industrial Relations, and Minister for Fair Trading. Will the Minister inform the House about today’s decision by the New South Wales Industrial Relations Commission in the State wage case?

The Hon. J. W. SHAW: This pay rise was backed by the New South Wales Government. We supported the idea of lower paid workers getting a $14 per week increase. The Industrial Relations Commission of New South Wales supported that government submission. This is good news for lower paid workers in New South Wales. The Government in this State recognised that low income families deserved a boost to their pay packets. The increase - $14 dollars a week to all workers earning up to $550 per week - is in stark contrast to the policies that the Howard Government is pursuing. It did not support the wage increase that this Government supported in the New South Wales Industrial Relations Commission. The increase in take-home pay will build on the benefits for families delivered in this week’s State budget.

It is good news for the battlers of New South Wales, and it is evidence of the way a fair industrial relations system is working in this State, led by the Carr Labor Government. It means that no award rate paid to a New South Wales worker will be allowed to fall below $373.40 per week. As I have said, it delivers $14 to all workers earning up to $550 per week; $12 to workers earning between $550 and $700 dollars per week; and $10 for workers earning above $700 per week. There is a safety net; there is equity; there is fairness at the workplace in that sort of approach by the New South Wales Industrial Relations Commission supporting a submission that the Carr Labor Government put to that tribunal.

The Hon. R. T. M. BULL: I address my question to the Treasurer, Minister for State Development, and Vice-President of the Executive Council. In light of the Premier’s continued support for the privatisation of the New South Wales electricity industry, will the Minister continue to recommend this initiative as part of the Government’s economic strategy? Given that the Minister has the support of the parliamentary Labor caucus, when will the Minister introduce the legislation in the Parliament?

The Hon. M. R. EGAN: I should have thought that the Deputy Leader of the Opposition knows my views on this subject. His statement about the parliamentary caucus indicates that he does not quite know what is happening. The Government has not taken the matter to the parliamentary caucus.

The Hon. E. M. OBEID: I address my question without notice to the Minister for Public Works and Services. Earlier this session the Minister drew the attention of the House to the purchasing capability of the Government. Will the Minister give a recent example of how this market placement has benefited the people of New South Wales?

The Hon. R. D. DYER: I am pleased to advise the House that the Government has awarded a major health products contract, worth approximately $83 million, to Baxter Healthcare Pty Ltd of Toongabbie, in western Sydney. The contract covers the supply of intravenous and irrigating solutions, parenteral nutrition and peritoneal dialysis fluids to public health organisations across New South Wales for the next five years. The decision to award the contract adhered to strict probity guidelines. The State Contracts Control Board approved the appointment of Baxter Healthcare Pty Ltd following lengthy consideration of four tenders received for the contract. Representatives of the New South Wales Health Department, the Department of Public Works and Services, the New South Wales Health Peak Purchasing Council and clinical and supply specialists from the New South Wales public health sector sat on the contract management committee.

The new contract offers a range of improved benefits over the current contract also held by Baxter Healthcare Pty Ltd. The company has a proven track record in delivering a high level of customer service to the health industry. The benefits include fixed pricing for the length of the contract on many products while other products are linked to the consumer price index. These predictable prices over a five-year period will greatly assist many health organisations and private users of the products to better manage their budgets. Over the term of the new contract the New South Wales taxpayer is expected to save almost $4 million.

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In addition, I am advised that the benefits are not solely financial. For example, I understand that the improved rates for peritoneal dialysis fluids will result in making the preferred twin-bag system available to more patients. Although I cannot give the House full, technical details of the system, I know that this means less hospitalisation and a reduction in the overall cost to the health system. Of course, any reduction the Government can achieve is invaluable, as the Howard Government continues to seek to deny basic health care to the ordinary citizens of this State.

The reduced costs will also allow for research and development. This is a win-win result for the Government. Baxter Healthcare Pty Ltd has also agreed to keep abreast of contemporary international technology and to make any new technology or products available at competitive prices under the new contract. New South Wales also wins on the employment front, as Baxter Healthcare’s large manufacturing plant at Toongabbie employs some 600 people and provides significant employment opportunities in western Sydney. It is not a small venture; the plant also supplies products to countries in the South Pacific rim as well as to all States within Australia.

The Hon. A. G. CORBETT: I ask the Attorney General, representing the Minister for Education and Training, and Minister Assisting the Premier on Youth Affairs, a question without notice. I refer the Minister to the answer given on 27 May to a question on notice asked on 29 April in which the Minister for Education and Training advised that "Extensive consultation will be held with teacher unions and universities with a view to implementing child protection competencies for all new teachers by the year 2002." Will the Minister advise the reason for the length of time to introduce child protection competencies for trainee teachers?

The Hon. J. W. SHAW: I regret that such a detailed question will need to be referred to the Minister for Education and Training to obtain a response.

The Hon. PATRICIA FORSYTHE: My question without notice is to the Attorney General, representing the Minister for Community Services. In view of an answer given by the Minister for Community Services during question time today in the other place, how does the Minister justify her call for potential foster parents to come forward to the Department of Community Services when long-term foster parents in the Blue Mountains and the Illawarra are currently being denied the care of children because of petty disputes with departmental officers? Will the Minister ask the Community Services Commission to review fostering in New South Wales to ensure that good foster parents are not victimised by the actions of departmental officers?

The Hon. J. W. SHAW: I thank the Hon. Patricia Forsythe for her question, although it was somewhat tendentious in tone. I will refer it to the relevant Minister and obtain a response.

The Hon. J. KALDIS: My question is directed to the Minister for Public Works and Services. Would the Minister report to the House on the progress that has been made on the stonework program for the restoration and maintenance of heritage buildings?

The Hon. R. D. DYER: As I have mentioned previously in this House, Sydney has a splendid legacy of public sandstone buildings, which are a significant element of the city’s character. As I have also stated before, the Government’s heritage stone program continues to ensure public safety and the preservation of the historic elements of such buildings. There is a considerable demand on funds under the public buildings stone program. The program has annual funding of $4 million, with an additional $1.5 million for the purchase of suitable stone. Approximately 400 cubic metres of sandstone quarry blocks are required each year.

The Department of Public Works and Services is exploring several avenues to ensure ongoing sources of stone, which is required for the program. "Yellowblock" is the name that was given to sandstone from the city, Pyrmont and the eastern suburbs that was used in the construction of nineteenth and early twentieth century public buildings in Sydney. Because of the development of some faults, the use of 600 cubic metres of stone obtained from the Capitol site at Pyrmont at the end of last year is limited to high-quality landscape work and low-level buildings. Tenders for the supply of sandstone to complete repairs to the Australian Museum, and for general use over the next two years, closed on 17 February. Four tenders were received: two from interstate, one from overseas and one local. Only one tenderer has been able to provide consistently high-quality stone, and
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negotiations are taking place to ensure long-term supplies at reasonable costs.

Other possible sources of high-quality stone are under investigation and likely material is subjected to rigorous testing. The $4 million funding for this financial year was spent on major projects presently under way. As I mentioned in my previous report, these projects include Government House, the Art Gallery of New South Wales and the Australian Museum. I am pleased to advise the House that work is about to begin on site at the Sydney Observatory, starting with the tower and then moving to the original residence and observatory wings. In addition, I can report that work on the former Museum of Applied Arts and Sciences building in Harris Street, Ultimo, which was being carried out under this program, was completed in May.

The Government continues to ensure that safety is always a paramount concern. To this end, the Department of Public Works and Services stone yard is providing an inspection and make-safe service. So far this operation has been carried out at the Australian Museum, Banco Court, Central railway station, the Sydney Observatory, two hospitals and more than 50 schools. It is recommended that this service be carried out at least every two years. The Inner Coal Industry Tribunal building and eastern suburbs schools were given priority after multistorey structures. Inspections are under way on inner western suburban schools. I am pleased to report that recent tours of inspection to the Hunter north-west and central northern regions have shown country buildings to be generally in good structural repair. Inspections of the north coast and south coast and Riverina regions are to be undertaken shortly.

The Hon. D. J. GAY: My question is to the Attorney General, representing the Minister for Local Government. Why, when the final financial report on Byron Shire Council has not yet been handed down, has the Minister for Local Government already stated publicly he will direct an investigation under section 435 of the Local Government Act, which could result in a massive surcharge levied against any councillor or staff member found responsible for illegal money transactions involved in a council activity? Is the Minister aware of the first page of the interim financial report, written by his own panel, which states, "There has been no discussion yet with former staff concerning the council’s financial position. We would caution readers against drawing any final conclusions at this stage as the process of interviewing and gathering information is continuing"? When will the Minister take responsible action to get the economy of Byron moving again instead of making presumptuous comments, particularly in light of the incredible length of time it has taken him to act on Byron Shire Council in the first place?

The Hon. J. W. SHAW: If it is the fact that the Minister for Local Government indicated that he will direct an investigation into Byron Shire Council, no doubt he did so in the exercise of his discretion based on the facts known to him. I would have thought that was an appropriate exercise of ministerial responsibility.

The Hon. B. H. VAUGHAN: I direct my question without notice to the Attorney General, and Minister for Industrial Relations. Would the Minister outline to the House ways in which the New South Wales Industrial Relations Commission is assisting New South Wales businesses to promote workplace reform?

The Hon. J. W. SHAW: The "Workforce" newsletter dated 29 May reported on the innovative and pro-active approach taken by the New South Wales Industrial Relations Commission to resolve a dispute about productivity payments in an enterprise agreement. The theme that continues to motivate our industrial relations policy in New South Wales is the important and active role given to the independent umpire, the New South Wales Industrial Relations Commission. It is responsible for two fundamental aspects of the strategy that we are pursuing: promoting productivity improvement and balancing workplace reform with fairness to employees.

A tangible example of how industrial relations is operating in the New South Wales jurisdiction is the action taken by the commission when ratifying Devro-Teepak’s enterprise agreement. As reported in the "Workforce" newsletter of 29 May, the workers at Devro-Teepak’s two sites in Bathurst and Kelso took industrial action when the company said that it could not afford further pay rises unless they were linked to productivity. The company told Commissioner O’Neill that previous deals contained similar clauses but the problem was that neither party knew where to start. Commissioner O’Neill gave an undertaking to work with the parties to define productivity and set key performance indicators and measurement criteria. This is
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indicative of the innovative and active approach taken by the New South Wales IRC in resolving industrial disputes.

The action taken by Commissioner O’Neill highlights the benefits to the industrial parties of placing the approval process of enterprise agreements within the jurisdiction of the Industrial Relations Commission. This is in stark contrast to the bureaucratic approval process of Australian workplace agreements within the Federal jurisdiction and the bureaucratic approach to the approval of enterprise agreements under the 1991 New South Wales legislation. In this case the IRC was able to guide the parties towards a best-practice, user-friendly outcome. The Industrial Relations Act of 1996 empowers the commission to act as a specialist, expert agency giving effect to the objects of the Act: equity, efficiency, productivity and co-operative workplace reform.

In the Federal jurisdiction no such empowerment for the Australian Industrial Relations Commission exists. When Mr Reith introduced the workplace relations Act he made no secret that he was intent on clawing back the powers of the independent commission. This was made abundantly clear during the waterfront dispute and the Rio Tinto dispute in the Hunter Valley. Documents uncovered during the legal battle between the Maritime Union of Australia and Patrick show that there was a concerted strategy at work - in stark contrast to the policies being pursued in New South Wales. The actions in the two disputes I have referred to would simply not have happened under the New South Wales industrial relations system. I believe that there would have been a more sensible, rapid and amicable resolution to the disputes under the legislative regime in New South Wales.

The Hon. R. S. L. JONES: I ask the Attorney General, representing the Minister for Police, a question without notice. Is the Minister aware that the police at Byron Bay are still stopping and searching young people at random in the hope of finding marijuana on them? Is it not a fact that a memorandum was sent to area commanders reminding them that random searches are illegal? Is it a fact that there is no power to randomly search citizens under any law of this State? Will the Minister ensure that all police officers in the State know that they are not legally able to stop, search and detain a person unless they reasonably suspect that the person is contravening an Act? Will he ensure that police officers who break the law in this regard are disciplined?

The Hon. J. W. SHAW: I welcome the intensive attention given to Byron Bay during question time in this House.

The Hon. Dr B. P. V. Pezzutti: You are going to visit there one day, aren’t you?

The Hon. J. W. SHAW: One day I will visit Byron Bay. I can think of many less pleasant things to do. I will refer the question to the Minister for Police and obtain a response for the honourable member.

The Hon. JANELLE SAFFIN: My question is to the Treasurer, Minister for State Development, and Vice-President of the Executive Council. What is the Government doing to encourage women to play a larger role in agriculture?

The Hon. M. R. EGAN: That is a very interesting question. The Minister for Agriculture, and Minister for Land and Water Conservation has just announced that 12 women from across New South Wales have been awarded bursaries to attend the second International Conference on Women in Agriculture. The women will join more than 1,400 delegates from 40 countries in Washington DC between 28 June and 2 July. The first conference of this type was held in Australia in 1994 and the conference is now seen as a major event for women involved in the agricultural industry.

This year’s conference no doubt will provide the women with a valuable way to share and gather information on agriculture at an international level. The conference will offer information on the business of agricultural production, the varying trends in rural economies and a number of other regional, community and family issues. Papers will be given on farm-based child care and on using the Internet to bring together isolated rural women. The conference will also tackle the issues of international trade, marketing, diplomacy and decision making. There will be ongoing benefits to regional New South Wales when the women return home. They will be able to share their experiences with family, friends and colleagues to strengthen our great agricultural industries.

The women attending the conference are: Helen Cathles from Wee Jasper, Beverlee Adams from Scone, Barbara Scott from Coonabarabran, Marie Russell from Tilpa, Jeanette Outram from Savernake, Julienne Campbell from Warren, Vivienne Henry from Nowra, Catherine Cleary from Burrawang -

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The Hon. D. J. Gay: Hooray, Cathy!

The Hon. M. R. EGAN: The Hon. D. J. Gay obviously knows Catherine Cleary. The other women attending the conference are: Alison Nicholls from Gunning, Marsha Johnson-Isbester from Nymagee, Sally Drinkwater from Moree and Christine Jones from Armidale. I do not think that any of the small towns I just mentioned are among the only four towns in New South Wales where no-one has applied for TAB share pre-registration. There are four tiny little hamlets somewhere in New South Wales that I must admit I have never heard of - I am sure they are nice little hamlets - where there is not one person who has applied for TAB share pre-registration.

The women have received sponsorship from the New South Wales Government and different sections of the agricultural industry. As part of that sponsorship I am pleased to say that the Department of State and Regional Development has given funding to cover some of their costs. I wish the women every success at the conference and I look forward to hearing about their valuable experiences when they return. No doubt the Hon. D. J. Gay will get a first-hand report from Catherine Cleary and will also give us an account of the conference.

The Hon. J. M. SAMIOS: I ask the Attorney General whether it is a fact that in the Equity Division of the Supreme Court there is normally a delay of approximately 12 to 18 months between the date of placement of a case on the general list and the date of hearing. Does the Minister believe that this delay is acceptable? If not, what steps is he taking to reduce the delay?

The Hon. J. W. SHAW: I must admit that I am stretching my mind back to practical experience within the Equity Division of the Supreme Court but there used to be - I think there would still be - a stark difference between long matters and short matters. Of course, it is open to any party to seek expedition, which is granted from time to time. I am not aware whether it is correct, as mentioned in the honourable member’s question, that the delay is 12 to 18 months. I am not receiving any complaints or hearing any agitation about delays in the Equity Division lists, apart from this question, so I have to infer that things are going reasonably well. The Government has kept up resources in the Equity Division of the Supreme Court. We have not in any way reduced the judge time in that division.

I will make inquiries but I have to say that it is a novel proposition to me that there is any particular problem in the Equity Division. When I surveyed the Supreme Court there were clearly problems in the civil lists, which the Government has taken action to remedy by devolving a lot more work from the Common Law Division of the Supreme Court onto the District Court. That has been a very substantial structural change in the New South Wales civil justice system. Understandably, there are time pressures in the criminal lists of the Supreme Court. But I simply have not heard it suggested that there is any significant delay problem in the Equity Division. I will make inquiries about that.

The Hon. J. R. JOHNSON: My question is addressed to the Treasurer, and Minister for State Development. What continuing success is the New South Wales Labor Government having in attracting new investments to this State?

The Hon. M. R. EGAN: I am pleased to inform the House that only this morning the Premier was in western Sydney - which, as honourable members no doubt appreciate, is a real economic powerhouse - to open a new Asia-Pacific regional headquarters for Philips Electronics. Over the next five years Philips will invest $60 million in its international competency centre for traffic management. That will create 80 direct jobs and an estimated 300 indirect jobs. The new facility will inject an estimated $30 million into the Australian economy and over the next five years will generate $80 million in exports.

This is good news for New South Wales, good news for western Sydney and also good news for our Olympic preparations. It will provide quality jobs for greater western Sydney, Australia’s third-largest marketplace and one of our State’s fastest growing regions. It will ensure that Sydney develops the skills and technology needed to avoid the traffic problems experienced during the 1996 Olympic Games in Atlanta. The new global research and development centre will manufacture high-tech traffic management systems for local and international markets.

I am pleased to inform the House also that Sydney won this investment ahead of strong competition from Singapore, other Australian cities and sites in Europe and North America. The deciding factors in our favour were our proximity to Asia and the traffic management expertise of Philips’ local work force. Philips joins the growing list of international companies that have chosen New South
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Wales for their regional headquarters. It seems that almost every day a new regional headquarters is won for Sydney. Recent wins include Rockwell Australia Pty Ltd, Schneider Asia-Pacific, Oracle Systems (Australia) Pty Ltd and First Data Resources Australia Ltd. Among the many advantages that New South Wales offers are obviously a stable AAA credit rating; competitively priced electricity, water, real estate and labour; and a multilingual work force. I congratulate Philips on this magnificent new facility which the Premier had the privilege of opening this morning.

The Hon. M. R. KERSTEN: I address my question to the Minister for Public Works and Services, representing the Deputy Premier, Minister for Health, and Minister for Aboriginal Affairs. Is it a fact that the Government intends to downgrade the Goodooga hospital from a six-bed hospital to a two-bed acute care facility, which will result in patients only having a four-hour maximum stay? Where will the patients from this remote community be transferred and what means of transport will be used in the transference? Given that Goodooga has an Aboriginal population of about 95 per cent and that the Minister has recently announced a $200 million Aboriginal health program, what steps will the Government take to ensure a minimum of disruption to Aboriginal people on health matters in the Goodooga community?

The Hon. R. D. DYER: I am not presently aware of the precise hospital arrangements at Goodooga. However, I shall seek advice from my colleague the Minister for Health and convey the details to the Hon. M. R. Kersten.

Reverend the Hon. F. J. NILE: I ask the Minister for Public Works and Services, representing the Minister for Agriculture, a question without notice following an earlier question. Is it a fact that a number of large fast food companies, retailers, airlines, et cetera, use or sell imported frozen orange juice concentrate products from Brazil? Does the chief executive officer of Sunraysia Citrus Growers Incorporated, Mr Peter Crisp, allege that about one million litres of orange juice sold by McDonald’s Family Restaurants annually contain Brazilian orange concentrate? Will the Government support the New South Wales citrus growers buy-Australian campaign by urging all orange juice retailers, motels, airlines, et cetera, to stock, supply and/or sell only local Australian orange juice products that are clearly labelled "product of Australia" and save the destruction of more than one million orange trees and prevent the loss of hundreds of jobs?

The Hon. R. D. DYER: I will seek a response to the question from my colleague the Minister for Agriculture.

The Hon. A. B. MANSON: My question without notice is to the Attorney General, and Minister for Industrial Relations. A demolition company was fined in the Industrial Court today after a worker was killed in a fall from a roof. Will the Minister please inform the House of the circumstances of this case?

The Hon. J. W. SHAW: The advice I have indicates that the tragic death of Mr Skinner, a labourer employed by Leppington Salvage Pty Ltd, was preventable. WorkCover Australia prosecuted Leppington Salvage Pty Ltd in the Industrial Court after that fatal accident. Action was also brought against a Mr Brkic, a registered director of the company. The court heard that Leppington Salvage was the subcontractor engaged for demolition and removal of salvage at the University of Western Sydney Nirimba campus at Quakers Hill.

Mr Skinner died on 10 June 1995 when he fell head first between the roof trusses onto the concrete floor below. Mr Skinner had been removing roof sheeting with another worker. Neither of them wore safety harnesses. The court was told that Mr Brkic, who had more than 20 years experience in demolition work, was supervising the two workers and had organised the work method by which the roof sheets were to be removed. He requested that the workers wear safety harnesses but did not insist when they complained that they would be uncomfortable. All three men then climbed an extension ladder to the roof.

Working at heights is one of the most dangerous hazards in the construction industry for which there are preventive safety regulations. However, WorkCover investigations of this accident revealed that there was no safety mesh underneath the roof while the sheets were being removed, nor was there a scaffold, handrail or any other device in compliance with the construction safety regulations to prevent persons from falling. Regulation 73(3) states that any person carrying out construction work should provide means, by fencing or otherwise, for securing the safety of any person working at a place from which he would be liable to fall a distance of more than 1.8 metres.

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WorkCover provides guidelines on how to conform to these construction safety regulations in its code of practice for safe work on roofs. This code was developed in conjunction with industry representatives and came into effect on 1 November 1993. I stress that contractors should strictly follow these safety precautions to prevent such tragic accidents occurring. In imposing the penalty of $35,000 plus costs against Leppington Salvage Pty Ltd, Justice Maidment said, "the failings by the company were serious and the consequence was severe".

The Hon. Dr B. P. V. PEZZUTTI: My question is to the Treasurer, Minister for State Development, and Vice-President of the Executive Council. Will the Carr Government follow its $75,000 donation to the Gay Games 2002 bid organisers with funding for preparation work for the Games in 2002 now that the bid has been successful, or is it true that Bob Carr has become wobbly on the Games funding?

The Hon. M. R. EGAN: As far as I am aware the Government is providing no funding to the Games. I understand that to be the position, but I will ascertain whether there are any details that I can provide to the honourable member.

The Hon P. T. PRIMROSE: My question is to the Attorney General, Minister for Industrial Relations, and Minister for Fair Trading. What can the Minister tell the House about the efforts of the Department of Fair Trading to detect and prevent scams being promoted on the Internet?

The Hon. J. W. SHAW: I am advised that electronic commerce on the Internet is an issue that is currently on the national agenda, and is of major concern to the Department of Fair Trading. One of the practical problems is that many complaints about Internet commerce raise cross-jurisdictional issues. The customer may be in one State or Territory and the trader in another, or often overseas. That makes it difficult to deal with complaints or to take action against unscrupulous traders.

Agencies at various levels have worked together to develop principles to deal with these cross-jurisdictional complaints. Those principles include working with affected customers on resolution of complaints through industry-based dispute resolutions schemes; developing a mechanism for the referral of complaints between agencies, the proper recording of complaints, and the collection of statistics; and an assessment of the capacity of fair trading and other legislation in terms of its extra-territorial application, the hearing of complaints, and the enforcement of orders among jurisdictions.

Many scams on the Internet originate overseas. In September 1997 the New South Wales Department of Fair Trading participated in an international effort to monitor the Internet for get-rich-quick scams. The Australian Competition and Consumer Commission co-ordinated the work of Australian fair trading agencies and sent out warning letters to the promoters of dubious schemes. The ACCC has subsequently taken action against some Australian-based promoters. There are plans for similar crackdowns in the future, possibly targeting other types of illegal conduct. The Department of Fair Trading will participate in those efforts.

The department is also developing its own compliance program for monitoring the Internet. In addition to detecting get-rich-quick and similar scams, the department will monitor compliance with its other legislation, such as compliance with business licensing requirements, and disclosure of required information in advertisements. Commerce on the Internet is a new and challenging area for agencies like my department which monitor and regulate trading. The department continues to work with agencies nationally and internationally toward strategies that ensure fair trading and consumer protection in the emerging electronic market.

The Hon. ELISABETH KIRKBY: I ask a question without notice of the Minister for Public Works and Services, representing the Minister for Health. Will the Minister confirm that Judicial Registrar Patch ordered the reinstatement of Ms Cynthia Kardell on 8 September 1997 after finding that allegations brought against Ms Kardell were inaccurate, exaggerated and/or fabrications, and that the South Eastern Sydney Area Health Service had, in failing to provide an opportunity to reply to allegations that she had undermined the director and attempted to destabilise the department, breached section 170DC of the Industrial Relations Act?

Is it further a fact that four months later, in February 1998, before Mr Justice Wilcox, the South Eastern Sydney Area Health Service agreed that its case was indefensible by virtue of the breach of section 170DC? Why did the area health service file an application for a review in September 1997
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knowing that its case was indefensible? Why did the area health service brief a Queen’s Counsel for the review? And what additional cost has that incurred for the area health service?

The Hon. R. D. DYER: I assure the Hon. Elisabeth Kirkby that I will refer the question to my colleague the Minister for Health and obtain a response for her.

The Hon. Dr MEREDITH BURGMANN: My question without notice is to the Attorney General. Could the Attorney inform the House about a recent important milestone celebrated by the Anti-Discrimination Board of New South Wales?

The Hon. J. W. SHAW: Last Friday, 19 May, I had the great pleasure of attending the celebratory dinner at Parliament House to mark the twenty-first birthday of the Anti-Discrimination Board. The 21 years since the passage of the Anti-Discrimination Act 1977 have seen the Anti-Discrimination Board grow as an effective advocate for the promotion of the principles of equality and tolerance, and its evolution as a respected forum for the conciliation of complaints and as a strong educative force in the community. Discrimination in New South Wales is a vibrant and ever-expanding field of law and practice.

Since 1977 around 30 sets of amendments have been made to the Anti-Discrimination Act. For its part, the Carr Government has over the past three years been responsible for the passage of significant amendments to the Act to recognise the rights of transgender people, to provide for a specific ground of sexual harassment and to enable the president of the board to become involved in industrial proceedings under the Government’s Industrial Relations Act 1996 where issues of discrimination arise in that forum. As a result of those changes the board has been faced with an ever-expanding workload. It is a tribute to the commitment of the board’s management and staff that it has successfully coped with the challenges and demands placed upon it by regular legislative amendments.

One of the great strengths of the anti-discrimination processes in this State stems from the system of conciliation-based complaint resolution administered by the board. In recent years the number of complaints being disposed of before referral to the Equal Opportunity Tribunal has stood at around 90 per cent. By seeking to avoid adversarial approaches to the resolution of disputes, the board’s conciliation processes provide an effective forum for mutually agreed solutions to discrimination complaints. The success of the board in this regard has been reflected by the results of a recent survey conducted by the New South Wales Law Reform Commission, which found that more than 50 per cent of complainants and 70 per cent of respondents agreed that the board’s handling of their complaints was fair. Those are impressive statistics. They show that the system is working well.

The commission found also that a significant proportion of parties were satisfied with the final outcome of the complaint. These findings are a tribute to the board’s handling of discrimination complaints, given the difficult nature of these disputes, where emotions frequently run high on both sides. Another crucial area of the board’s work involves its community education functions. The board rightly recognises that complaint resolution is not the only way to achieve attitudinal change, and gives great emphasis to the provision of information and advice to individuals and organisations to improve awareness of this State’s anti-discrimination laws and to foster an understanding of the positive benefits of non-discriminatory behaviour.

The board’s educational work takes a preventive approach aimed at minimising instances of discrimination and promoting tolerance among employers and service providers through seminars, talks, training exercises and the ongoing provision of assistance and advice. The board also targets potential complainants and their advisers through training sessions and through its expanding outreach programs. The achievements of the Anti-Discrimination Board over the last 21 years have rightly reflected the dedication of its staff to the principles of tolerance, compassion and understanding of difference.

In extending my congratulations on reaching this milestone, it would be remiss of me not to acknowledge the outstanding contributions of the six individuals who have held the position of president: the founding President, Mr David Moore, whom I was glad to meet again on Friday night; the Hon. Gerald Cripps, who became a judge of the Land and Environment Court and the Court of Appeal and, although now retired from those positions, remains in practice; the Hon. Justice Paul Stein, now a judge of the Court of Appeal; Ms Carmel Niland, now Director-General of the Department of Community Services; Mr Steve Mark, who is Legal Services Commissioner; and the current President, Chris Puplick. All have brought a strong sense of dedication, integrity and independence to the role. Former Premier the Hon. Neville Wran stated at the
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time he introduced the original Anti-Discrimination Bill:

It is my firm view that the pervasiveness of discrimination in our society can be eradicated only by positive action . . . Eventually, positive programs will be the means by which that tolerance and prejudice inherent in our community will be removed.

Although in the intervening years there have been major demographic and attitudinal shifts, it would be unrealistic to assert that discrimination and intolerance are no longer pressing issues. There is a continuing need for the board to address injustice in our community and for its constructive role in the education and protection of the people of this State.

The Hon. VIRGINIA CHADWICK: I direct my question without notice to the Attorney General. Does the Attorney recall saying that it was not policy to provide parking at courthouses because of the serious security risks involved? Will the Attorney outline what he means by these security risks and why they are compounded by a courthouse providing its own parking?

The Hon. J. W. SHAW: The statement speaks for itself. There are security risks about public car parking areas attached to courthouses. No government in living memory has provided parking for the general public adjacent to courthouses. Part of the rationale for that non-provision involves security concerns. Obviously, witnesses and other people associated with court proceedings, including defendants, attend the courts, and it simply has not been regarded as appropriate to provide such a parking policy.

The Hon. VIRGINIA CHADWICK: I ask a supplementary question. In light of the Attorney’s answer, will he explain why there is apparently a lesser risk in relation to the proposed courthouse at Toronto, as witnesses, defendants and other people park in the grounds of Coles supermarket, along with families and shoppers?

The Hon. J. W. SHAW: I refer to my earlier answer.

The Hon. M. J. GALLACHER: My question without notice is addressed to the Attorney General, representing the Minister for Community Services. Has the Minister made a determination about the future of land surrounding the Mount Penang Juvenile Justice Centre in light of the plans of Gosford City Council for a regional sportsground on the site? Is control of this land to be handed over to Gosford City Council? If so, when?

The Hon. J. W. SHAW: I am happy to refer the Hon. M. J. Gallacher’s question to the relevant Minister and obtain a response.

The Hon. I. M. MACDONALD: My question without notice is directed to the Treasurer, and Minister for State Development. What is the New South Wales Government doing to support the growth of exports from New South Wales?

The Hon. M. R. EGAN: As I am sure honourable members would be aware, the Government tries to get behind any initiative that is worthwhile and encourages the growth of exports from New South Wales. Last week the Director-General of the Department of State and Regional Development, Loftus Harris, launched the Premier’s 1998 New South Wales Exporter of the Year awards. These awards help to recognise the achievement of companies which are beating the best in the world to win orders in export markets. This year there will be two new national awards for firms in the education sector and those in the arts and entertainment industry. The Government is also sponsoring a new award - the New South Wales Regional Exporter of the Year - as part of its efforts to help exporters outside metropolitan areas.

In 1997 New South Wales exporters sold more than $27 billion worth of goods and services in 190 different markets. While recent falls in the Australian dollar have helped our exporters, economic uncertainty in the Asian region means that many firms must look for new markets. The Government has appointed five export advisers to businesses across the State and has appointed a further 12 agribusiness advisers. In contrast to the Howard Government, which has slashed $150 million a year from regional development and axed the successful AusIndustry program, this Government intends to continue spending on similar programs and assistance in regional New South Wales. I encourage New South Wales exporters to enter the awards to show the rest of the country the class and quality of our businesses and inspire other business people to take on the world.

The Hon. I. COHEN: I ask the Treasurer, Minister for State Development, and Vice-President of the Executive Council a question without notice.
Page 5626
Given the huge budget for the Olympics, is adequate provision being made for emergency housing needs in the lead-up to and during the Olympic Games?

The Hon. M. R. EGAN: I will refer the Hon. I. Cohen’s question to my colleague the Minister for Housing.

The Hon. PATRICIA FORSYTHE: My question without notice is directed to the Attorney General, representing the Minister for Community Services. Has the Government made a decision to undertake a review of the Ageing and Disability Department? If so, will the Government rule out placing the responsibility for ageing or disability services within the health portfolio?

The Hon. J. W. SHAW: I will refer the Hon. Patricia Forsythe’s question to the relevant Minister and obtain a response.

The Hon. D. J. GAY: My question without notice is addressed to the Treasurer, and Minister for State Development, representing the Minister for Regional Development. Is the Treasurer aware that at last weekend’s country conference the Minister for Regional Development announced that $18 million would be given to regional New South Wales but he failed to tell the people of regional New South Wales that the funding was to extend over three years, which meant that $6 million was to be provided each year? Is the Treasurer aware that half the amount of money that the State Government spent on the relocation of the football stadium to the central coast is allocated to the rest of regional New South Wales?

The Hon. M. R. EGAN: I assure the Hon. D. J. Gay and other members of this House that the Carr Government is spending a lot more than $18 million a year on regional development.

The Hon. Dr B. P. V. Pezzutti: Who told you that? It’s not in the budget.

The Hon. M. R. EGAN: The Hon. Dr B. P. V. Pezzutti must realise that the budget for the Department of State and Regional Development is not the only budget from which regional expenditure comes. Regional expenditure comes from a whole host of portfolios. I have noticed that the Hon. D. J. Gay has been critical of the assistance that both the Commonwealth Government and the New South Wales Government have given towards the development of a new stadium on the central coast.

The Hon. D. J. Gay: I am not critical of that; I am critical of the money you spend in regional New South Wales.

The Hon. M. R. EGAN: The Hon. D. J. Gay has criticised the assistance in the past, as have some of his colleagues. He and coalition members have made it quite clear that if by some mischance they were elected to office in this State next year, that $12 million from the New South Wales Government would not go towards that project. I will ensure that the people on the central coast know what the Hon. D. J. Gay thinks about the central coast.

The Hon. HELEN SHAM-HO: My question without notice is directed to the Attorney General, and Minister for Industrial Relations, representing the Minister for Education and Training, and Minister Assisting the Premier on Youth Affairs. Is the Minister aware of teachers’ concerns that staff cuts in the number of teachers’ aides at schools for children with emotional and intellectual disorders will have a devastating impact on education standards and teacher safety? What will the Government do to compensate for the reduction in the number of teachers’ aides? Does the Minister agree that activities such as arts and craft, sport and home skills are an integral aspect of education for children with special disabilities? If so, how will the Minister ensure that these subjects will continue to be taught in schools for these children?

The Hon. J. W. SHAW: I will refer the Hon. Helen Sham-Ho’s question to the Minister for Education and Training, and Minister Assisting the Premier on Youth Affairs and obtain a response for her.

The Hon. J. H. JOBLING: My question without notice is addressed to the Attorney General, representing the Minister for Energy. Are John Maitland’s allegations correct that the Construction, Forestry, Mining and Energy Union lobbied the Premier recently to tip more money into Powercoal’s proposed longwall mining under the Mandalong Valley flood plain? Is the proposal a first for Australia to mine under a flood plain? Was a subsidence of up to 2.9 metres expected or predicted as a result of proposed mining, irrespective of the possible destructive effect on aquifers?

The Hon. J. W. SHAW: I would need to take the advice of the Minister on that rather technical point. I will refer the question to the Minister and ask for a reply.

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The Hon. Dr MARLENE GOLDSMITH: My question without notice is addressed to the Treasurer, Minister for State Development, and Vice-President of the Executive Council. Is the Treasurer aware that the Chief Commissioner of the Office of State Revenue has said that if an objection to a land tax bill is raised and the matter is investigated, the person who raised the objection does not have to pay the tax until it has been resolved? Is it a fact, however, that if the objection is not dealt with within 12 months and the tax is not paid, the penalty rate applies even though the only reason it is not paid is that the objection is still being heard? What does the Government propose to do about this unfair situation?

The Hon. M. R. EGAN: I am not -

The Hon. D. J. Gay: What about what Ross Gittins said about you this morning?

The Hon. M. R. EGAN: I had a conversation with Ross Gittins on the telephone today. Ross Gittins, who, I might say, is usually right on matters of fact, conceded to me on the telephone that his article today was factually incorrect on one of the key points.

The Hon. D. J. Gay: Which one of his criticisms?

The Hon. M. R. EGAN: I do not want to talk about the budget, but it is really another budget we are talking about. He conceded that last year’s budget - 1996-97 - was, of course, a surplus budget and he also -

The Hon. Dr B. P. V. Pezzutti: What! You had to bring in a supplementary.

The Hon. M. R. EGAN: 1996-97, yes.

The Hon. Dr B. P. V. Pezzutti: A surplus?

The Hon. M. R. EGAN: Yes. A surplus, dumbo. A surplus - S-U-R-P-L-U-S - a surplus of $90 million.

The Hon. R. T. M. Bull: Anyone can budget for a surplus. Delivering it is the problem.

The Hon. M. R. EGAN: The $90 million surplus was the result at the end of the year. At the beginning of that year the Government predicted a surplus of $5 million, and at the end of the year we had a surplus of $90 million.

The Hon. Dr B. P. V. Pezzutti: But hang on, you haven’t got to the end of the year. It’s not even 30 June.

The Hon. M. R. EGAN: I am talking about last year.

The Hon. Dr B. P. V. Pezzutti: It is not 30 June yet.

The Hon. M. R. EGAN: Last year. Does the Hon. Dr B. P. V. Pezzutti not know what "last year" means?

The Hon. Dr B. P. V. Pezzutti: That’s the year that’s ending this year.

The Hon. M. R. EGAN: No, there is only one "last financial year", and that is the immediate last financial year, which is 1996-97. I am sure that you, Mr President, can explain to the Hon. Dr B. P. V. Pezzutti that this is the 1997-98 financial year.

The Hon. Patricia Forsythe: Did you phone Ross Gittins? Did you put a call in to Ross Gittins?

The Hon. M. R. EGAN: Yes, I called him.

The Hon. Patricia Forsythe: I bet you did.

The Hon. M. R. EGAN: I did, because he was factually wrong.

The Hon. D. J. Gay: Were you nice to him?

The Hon. M. R. EGAN: Yes. Of course I was nice.

The Hon. R. T. M. Bull: Is he going to retract it tomorrow?

The Hon. M. R. EGAN: I hope he retracts it, because he certainly conceded that it was wrong. Of course, I like Ross Gittins, because he is one who has educated the Australian community about finance and economics. Indeed, I think Australians have a higher level of economic and financial literacy than the citizens of any other country. I put that down to the likes of Ross Gittins.

The Hon. Patricia Forsythe: And Max Walsh.

The Hon. M. R. EGAN: And even Max Walsh many years ago. Although, Max Walsh has gone off since he has forced himself to write a column every day. In the days when Max Walsh
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used to write a column every week, it was always worth reading. Now it is mainly a lot of claptrap that he regurgitates from journals that he subscribes to. He gives the odd attribution, but there is not really much original thinking in Max Walsh’s writing these days. He really would be much better off just writing a considered article once or twice a week. But Ross Gittins occasionally gets things wrong, and he did so today. He conceded that to me today, which was very gracious of him.

The Hon. Dr B. P. V. Pezzutti: No he didn’t.

The Hon. M. R. EGAN: Yes, he did.

The Hon. D. J. Gay: You’re verballing him.

The Hon. Dr B. P. V. Pezzutti: You’re saying that 1997-98 will be in surplus?

The Hon. M. R. EGAN: No. The last financial year was 1996-97, you silly man. The Hon. Dr Marlene Goldsmith asked about land tax. I am not aware of the comment made by Mr Bruce Buchanan, the head of the Office of State Revenue, but I will certainly ascertain the facts from him. On the face of what the Hon. Dr Marlene Goldsmith has asked, the matter is worth considering. I will speak to Mr Buchanan and I will probably come back to the House with an answer for the Hon. Dr Marlene Goldsmith.

The Hon. Dr MARLENE GOLDSMITH: I ask the Minister a supplementary question. The Treasurer said that he will "probably come back to the House" with a response to this matter. Given the importance of this matter and the fact that people are being fined for something that is not their fault - the length of time it takes to process their appeals - will the Minister give his word that he will come back with a response?

The Hon. M. R. EGAN: I have already answered the question.

It is well past 5 o’clock. I am tiring of inane questions from the Opposition. If they have any more, they might like to put them on notice.

Questions without notice concluded.

Debate resumed from 27 May.

The Hon. Dr B. P. V. PEZZUTTI [5.06 p.m.]: Last week I was commenting on how the Nature Conservation Council and the Total Environment Centre seemed to have changed their tune. I revisited the evidence given before the committee by none other than Jeffrey Samuel Angel, Director of the Total Environment Centre, Shop 1, 88 Cumberland Street, Sydney, who willingly gave evidence under oath. On 2 April, at page 54 of the committee transcript, he said:

Secondly, we repeat our concerns that recreational fishing must be controlled and that its catch is a significant factor. Thirdly, because of our disenchantment with the Minister we suggest some important accountability measures be introduced so that Parliament can keep an eye on what this Minister is up to.

At page 55 the Hon. I. Cohen asked:

In your capacity as a conservation lobby group, have you had any productive communication with the Minister or senior managers of his department? Have you received any feedback that there is light at the end of the tunnel?

Mr Angel replied:

No, there is no light at the end of the tunnel under the current Minister and his administration.

The Hon. M. R. Kersten: There is a light; but it is the headlight of an oncoming train.

The Hon. Dr B. P. V. PEZZUTTI: The honourable member is correct. The headlight of an oncoming train will pierce the darkness and take them all out. At page 56 the Hon. Jennifer Gardiner asked:

In terms of your organisation’s perception of the Government and the Ministers with a significant environmental aspect to their portfolios, how would you rate the Minister for Fisheries? Is he at the bottom of the pile or the middle of the pile? Is there anyone less than him?

Mr Angel replied:

No, the Minister is in a class of his own. I have never seen someone make such a mess, and the problem is that he is deliberately doing it.

The Hon. Jennifer Gardiner, with eyes popping as I remember, then asked:

Why do you say that?

Mr Angel replied:

Because he has developed a strong political alliance with recreational fishers and wants to deliver their votes to the Government. Whatever it takes in stuffing up sustainable fishing management, he will do it. I do not think that is a professional or an adequate way of exercising his duties to look after the fisheries in this State for present and future generations.

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I could not believe the evidence that Mr Angel from the Total Environment Centre was giving - Mr Angel, a greenie friend of the Labor Government. I thought he was overreacting. However, Jeff Angel has always been a pretty decent sort of person. I asked him:

Were you consulted about the change by the Minister from a share managed fishery to restricted fisheries?

Mr Angel said:

I do not believe we were, or that other environmental groups were, no. They have been pretty tangential about this, despite our seeking additional representation.

I asked him:

Have you received any input from the Minister or the department that this move to restricted fisheries is a temporary arrangement on the way to share managed fisheries?

Mr Angel said:

Not that I am aware of. Other groups may have had discussions, but not that I am aware of.

I asked:

Were you consulted about the changes the Minister made to the nature of the advisory committees?

Mr Angel replied:

Not beforehand. Clearly, it is like Parliament: there are a whole lot of discussions.

I then asked:

Have you seen the new regulations?

He replied, "No." That is the evidence of Mr Jeff Angel. I return to the press release issued by Mr Connor and our good friend Jeff Angel after the release of a fairly strange report on share managed fisheries in New South Wales by John Marlow from the Nature Conservation Council.

The Hon. R. D. Dyer: Do you think you have an obsession about this?

The Hon. Dr B. P. V. PEZZUTTI: I do have an obsession; the Minister is probably right. I have a fixation about this issue because we have been inquiring into it for almost two years. It has been a most riveting inquiry. Fishermen have cried in front of committee members. Grown men, hardened men - men who face death on a regular basis when they are fishing - cried when giving evidence before the committee because of the injustice and the stupidity of the Minister for Fisheries. Mr Angel was most composed, most definite and most concerned about fishing stocks and the sustainability of fisheries.

The evidence given to the committee was so riveting that it sticks in my brain to this day. Other members of the committee - including the Hon. Jennifer Gardiner and the Hon. Patricia Staunton, who has resigned - were distressed by this inquiry and the obdurate nature of this stupid Minister. The Hon. Patricia Staunton decided that if she had to try to cover up for this bird-brain, she was going to leave. She did. She now has a very good job and I hear that she is doing excellent work on the bench. I return to the press release to which I referred earlier entitled "Environmental groups release key report into fisheries management in NSW". Honourable members have heard what our friend Mr Angel had to say about this Minister, but suddenly he was saying:

Bob Martin . . . needs to fix up problems with both the share and restricted management models otherwise it will have failed to provide resource sustainability . . .

Mr Angel refers in that press release to walking backwards from share managed fisheries - something to which he was totally committed in 1995, and when he gave evidence to the committee on 3 April 1997. A year later, Mr Angel has had a change of heart. What is behind that change of heart? He thought he had a deal with the Minister. Honourable members have to take my word when I say that Jeff Angel told me on the phone that the Minister does not come to a decision on anything. Mr Angel has had a change of heart. I was told on the phone by Jeff Angel and by John Connor, separately, that it does not matter what the Minister does because they are advising the Premier about what should happen to these fisheries. I asked them whether they had seen the latest letter from Mr Martin dated 29 April - a letter which I received just after Jeff Angel and John Conner issued their press release, in which the Minister said:

Dear Dr Pezzutti

The Minister does not normally refer to me as "Dear Dr Pezzutti".

The Hon. D. J. Gay: What does he normally call you?

The Hon. Dr B. P. V. PEZZUTTI: I would not like to repeat it in this House. It is unparliamentary. The Minister said:

I am writing concerning the Fisheries Management (General) Amendment (Restricted Fisheries Termination) Regulation 1997 . . .

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I have now received the recommendations of the Ocean Trap and Line MAC. The MAC has recommended that the fishery be managed as a restricted fishery rather than a share management fishery, and that input controls are the preferred management tool.

The Hon. I. M. Macdonald: They were all ministerial appointments.

The Hon. Dr B. P. V. PEZZUTTI: The Hon. I. M. Macdonald says they were all ministerial appointments. He is probably right about that. The Minister then said:

I have accepted the recommendation and will now re-gazette the ocean trap and line restricted fishery regulation for a five year period. During the next twelve months, the MAC will review current management arrangements and new management rules will be progressively implemented as a plan is developed.

I had been having a relatively combative conversation with Mr Connor and Jeff Angel, but suddenly there was a silence at the end of the line. They said, "What is the date of that letter?" I said, "It is dated today’s date, 29 April." Both of them, in separate phone calls, said, "We have not seen that letter." I said, "Have you discussed this with the Minister yet? Has it come to your advisory council and to people in the Premier’s Department?" They said, "No." They both said, "The Minister will not be able to do it." I said, "No, he will not be able to do it because he has to pass regulations through the upper House and he will never get them through there. That is why he will not be able to do it; not because of your input or because he will take any notice of you or the Premier of New South Wales." All honourable members know the Minister’s attitude towards those sorts of things. That completes my introduction to this important debate.

The Hon. I. M. Macdonald: What is the policy of the Liberal Party on share managed fisheries?

The Hon. Dr B. P. V. PEZZUTTI: We believe in upholding the law, and at the moment the law of the land is share managed fisheries. We implemented share managed fisheries at the behest of the industry and on behalf of environmental groups, recreational fishers and all the people of New South Wales. Bob Martin was the only one who objected to the implementation of share managed fisheries. When returned to government the Liberal Party intends to reinstate share managed fisheries. If the Nature Conservation Council and the Total Environment Centre still have some identified problems, they can be accommodated. The Liberal Party supports the introduction of share managed fisheries. In press release after press release, Mr Turner, the shadow minister for fisheries, called on the Minister to introduce share managed fisheries.

Briefly, the first few pages of the report contain a good background on fishing in New South Wales. It is well put together and is recommended reading for anyone interested in this topic. It was a great pleasure to work with Michael Lowry, the senior project officer, and Mr Stewart Webster, who did a sterling job of collating information. I said earlier that we had some problems with the tabling of this report because of the nature of the material in it. But, after all, that is a matter for the majority of the members on the committee. Attached to the report is a dissenting statement, about which I am sure the Hon. Jennifer Gardiner will speak at length. The second chapter, which is all about the nature of Australian fisheries, puts New South Wales on the map. At the end of that chapter there is an important recommendation:

That the Offshore Constitutional Settlement be resolved as a priority by NSW Fisheries to ensure a holistic (consistent) approach to fisheries management across the State/Commonwealth boundary (3NM).

All the other States have signed off, no problem at all. But our Mr Martin has continuing problems. After three years of struggle the Commonwealth cannot get through the tortoise shell, cannot get past Dr Glaister. Yet the Minister said in his response that they are working on it. Chapter 3 is about fisheries management and refers to setting up share managed fisheries, the legislation and so on. Then it refers to the black day when Bob Martin became the Minister for Fisheries. A staged implementation plan was identified as part of the process, and then Bob Martin did a quickie review - the review you have when you are not having a review: you go away, contemplate your navel and write in the dark. In this review Dr Glaister did not talk to any fishermen, and he certainly did not talk with the Total Environment Centre.

The Hon. D. F. Moppett: If he had talked to any fishermen, that would spoil a good theory that the Minister cooked up.

The Hon. Dr B. P. V. PEZZUTTI: No, he would not want to do that. Following that review, recommendations were made, with which no-one agreed. But that did not matter at all.

The Hon. D. F. Moppett: Carry on regardless.

The Hon. Dr B. P. V. PEZZUTTI: Yes, carry on regardless. All the fishermen who appeared before the committee were highly critical of what Dr
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Glaister called progressive implementation. They said it meant nothing; that it did not mean implementation of share managed fisheries; that it meant walking away from the spirit and actuality of the Act. I have already quoted Dr Young, and last week I spoke in detail about the contribution of Mr Connor, who also was at variance with the department. Mr Connor gave evidence to the committee in May 1997, about the same time as Mr Angel gave evidence. Suddenly they both turned around. I cannot understand why, and they did not give a reason.

The Hon. D. F. Moppett: It beggars imagination.

The Hon. Dr B. P. V. PEZZUTTI: It does. The Hon. D. F. Moppett hits the nail right on the head. At the end of the chapter about the Act’s implementation, at page 108 the report states:

The Standing Committee is concerned that the Share Management Fisheries Review Committee undertook only very limited, and possibly selective, consultation before reporting to the Minister. The Standing Committee views this as a serious shortcoming and considers that it accounts for much of the stakeholder suspicion surrounding the Review Committee’s report and recommendations. The Standing Committee also considers that the "progressive implementation path" will not necessarily lead to the implementation of share management in all fisheries, despite the Review Committee writing that it "did not consider not implementing SMF as an option".

How true that statement is today. The Minister is almost going down the track of restricted fisheries for all. At page 109 the report states:

After considering the voluminous evidence before it, the Standing Committee believes share management to be the appropriate fisheries management outcome for New South Wales. The Standing Committee notes that, under the "progressive implementation path", MACs are due to make their recommendations to the Minister by 30 April 1998.

The managements advisory committees have not yet finalised their recommendations and the Minister has not signed them all off, but that is where implementation is at. Then the committee got into a difficult area: how to balance fisheries management and resource allocation. In that regard the report is enormously important. The committee received good evidence from Mr Leadbitter, Executive Director of Oceanwatch, a man of enormous experience and commitment, whose opinions were supported by Mr Gary Sturgess. At page 114 the report quotes Mr Leadbitter:

The resource allocation debate is basically the nub of the management problems we have. The dispute between the recreational and commercial sectors over fish has become so extreme as to cloud the real debate. It is run along the lines: there are two and a half million of them [recreational fishermen] and 2,000 of you [commercial fishers] so you work out the numbers yourself. I cannot count how many times that statement has been made by fisheries officers and others to the industry, that we need to recognise that commercial fishermen are there as licensed harvesters of fish for the seven million people in New South Wales, 96 per cent of whom eat fish. The allocation debate needs to be depoliticised. At the moment it has got out of hand.

During the committee’s deliberations and hearings it became obvious that the recreational and commercial fishers were coming together. Interesting! One would have thought they would be sworn enemies. The Minister was trying to rack up the recreational fishers, because that is where the votes are, against the commercial fishers. The sustainability debate has never been in Bob Martin’s mind. Nor has it been in the mind of Dr Glaister, although I cannot prove that.

The Hon. A. B. Kelly: How can you prove what is in the Minister’s mind?

The Hon. Dr B. P. V. PEZZUTTI: Because his mind is almost transparent. The Minister does not have many neurones, so his mind is easier to read. But Dr Glaister is a very complex character. The fish stocks in New South Wales are being exploited by both groups of fishers. According to the evidence received, the size of the recreational catch varies between 40 per cent and 70 per cent of the total catch. The further away from Sydney the lower the recreational catch, except on the Clarence River where the latest survey, done in May last year, shows that at least 50 per cent of the catch is taken by recreational fishers, which equates to an enormous tonnage. The committee heard evidence about the danger to the commercial fishermen of black market fishing and concerns about health aspects - such as injury to people, and the New South Wales fisheries, commercial fishers and fish products getting a bad name. There was inadequate recognition of recreational fishers in the 1994 Act because the size of that sector was underestimated. At page 120 the report states:

The property rights approach embodied in the Fisheries Management Act 1994 was designed to secure access for commercial fishers and provide an economic incentive for the commercial sector to use the resource sustainability.

The Act did not take into account that other fishers impact on the fisheries. At page 121 the report states:

Many recreational fishers perceive property rights as an ownership of the resource. This perception has fuelled concern among the recreational sector that the resource, now publicly owned, would become private property under share management.

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That is a real concern, and perhaps the 1994 Act needs to be amended to update the nature of fisheries and the reality of the recreational sector. The committee ploughed on and Mr Connor from the Nature Conservation Council again commented:

. . . the suppliers of fishing equipment could play a much larger role than they do. We could look at some sort of environmental resource tax on their equipment as a way of funding research and enforcement, rather than necessarily focusing on the end users, the recreational fishers.

That was a smart observation by Mr Connor. The committee considered the possibility of funding research and sustainability and the size of fisheries. To overcome the difficulty of a shortage of money, we looked at some examples of proposed recreational contributions, such as a recreational licence fee, a portion of Federal sales tax on recreation fishing equipment and a levy on recreational boat registrations, which is the Queensland model.

The committee then turned to a very special problem: kingfish trapping on the south coast. Mr Campisi and his friends carefully explained the impact on them of kingfish traps being abolished. The coalition moved to disallow the regulation banning kingfish traps. Kingfish trapping was approved by the RSPCA and videos showed that the fish were trapped well below a level at which the traps could foul ships. The traps had little catches that released the fish if the trap was not retrieved after four or five days. The fish caught were in perfect condition and their value was very high. The fish were caught with almost no trauma, were bled instantly they hit the deck and were not bruised in any way. Fish that were too small were returned to the water. Sashimi-quality fish were being sold for $4,000. Kingfish accumulate under shelter and this characteristic is used to trap them: the trap has a lid under which the fish shelter. They are very comfortable, according to the video.

When the fleet of about 250 big recreational boats goes out it creates a huge platform which the kingfish shelter under. They are then ripped out by the thousands. The operation is said to involve "recreational" fishermen. Most of the fish end up on Sydney tables. The Minister banned kingfish trapping without knowledge, investigation or consultation. This got rid of the income of about five families. There were not a lot of people involved. They were making a really good living out of a very small number of fish - four or five traps each catching perhaps 16 fish a week at the maximum. It was a decent effort, with good quality equipment. The traps were brought up from the depths with a crane.

The former member for Port Macquarie, Wendy Machin, a very smart woman, took steps to disallow the regulation banning kingfish trapping. Unfortunately. the move was caught up in the prorogation process. When we were about to debate these matters the House was prorogued, causing the issues to be out of time. It was a classic double trick by the Carr Government. The committee investigated these matters. There was evidence from the RSPCA and video evidence. The committee’s third recommendation, on page 129 of its report, was:

That kingfish trapping be recommenced on an experimental basis. NSW Fisheries and ex commercial kingfish trappers should operate this pilot scheme for 1 year. Independent assessment of the recreational take, the black market take and the charter boat take should be carried out along with a detailed stock assessment.

Kingfish traps as a method should be assessed for their efficiency, bycatch, state of the fishes landed and value at point of sale in comparison with line fishing for kingfish.

The Total Allowable Catch Committee should be furnished with the results of the assessment and take into account the commercial data of the years 1990-1995. A TAC for kingfish should be set within 3 months of receiving the detailed stock assessment and take data, and take no longer than 18 months from the tabling of this report.

What was the Minister’s response to recommendation 3? He simply said:

Kingfish trapping will not be recommenced. Entry to restricted fisheries was determined using criteria years between 1986 and 1990. Any attempt to allocate access rights for a particular gear type on the years 1990 to 1995 would be inequitable. Commercial fishers are currently considering whether to opt for output or input controls in the trap and line fishery. Any proposal to establish a TAC for fishery or any other line caught species would need to be considered in the light of those deliberations. As a relatively low value fishery, the cost of a quota management scheme for kingfish might not be cost effective.

What a dill! The man shows not only that he has no brain but that he is not prepared to let it expand and wander around a bit in case it picks up some disease.

The Hon. D. J. Gay: Tell him what you think, Brian.

The Hon. Dr B. P. V. PEZZUTTI: I think he is a dill.

The Hon. D. F. Moppett: He thinks the fishery will be improved by netting all the fishermen out, not the fish.

The Hon. Dr B. P. V. PEZZUTTI: That is right: he wants to manage the fishermen. I turn to the issue of beach fishing and Aboriginal fishing,
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which I covered in my introduction. These come under the whole issue of management of resource allocation. The committee made various recommendations regarding the protection of the beach-haul fishery, the activities of charter boats and charter boats lodging catch returns as a condition of the licence. The Minister has already legislated for that. Against the coalition’s wishes it was passed in this House. I am sure that the Hon. Jennifer Gardiner will cover that matter in detail. The post-harvest sector was also covered by the report. The committee pleaded with the department. Recommendation 6 was:

That the Government managed the Fisheries Management Act 1994 and/or associated regulations to broaden the Department’s awareness of, and contact with, the post-harvest sector, and to provide fish marketing organisations with a more formal role in liaising with fishers. These amendments should establish a more comprehensive framework to combat the black market trade in fisheries product and provide a means of informing fishers of ways to maximise the value of their catch.

The post-harbour sector was prepared to work with fishermen to assure a higher quality catch and therefore better value for money and greater sustainability of the resource. What could be a simpler recommendation? What did our good friend the Minister - I suppose, he is nobody’s good friend - respond to recommendation 6? He stated:

The Department has effective contact with fishermen’s co-operatives and other significant point-of-first-sale operators.

This is a different kettle of fish. He is talking about co-ops. He is not talking about the marketers of fish. He continued:

The seafood post harvest sector is a large, ill defined group ranging from wholesalers, packers, large and small scale processors, transporters, restaurants and myriad small scale retailers . . . It is up to the fish marketing organisations to establish their own linkages with fishers as they do with importers, other wholesalers or product suppliers of any kind.

A broadening of the Fisheries Management Act 1994 to embrace the post harvest sector would entail considerable costs that would have to be recovered from the beneficiaries.

That just tells us that the man is not interested in sustainable fisheries or in quality product.

The Hon. Jennifer Gardiner: What is he interested in? We do not know.

The Hon. Dr B. P. V. PEZZUTTI: Yes. He just seems to want to manage fishermen. Why does he not get a few toy fishermen and play with them in the bathtub? The committee’s recommendation 7 was:

That a compulsory levy (to be determined through consultation with industry) be collected from the first receiver, levied on each kilo of product caught or imported into NSW. Funds raised from this levy should be used to improve quality assurance, product development, seafood promotion, and environmental sustainability.

The committee gave the Minister a way of getting his research done and his sustainability act into place. And nothing happened. That is another recommendation that he knocked back. His response was:

This response is not supported at this time.

Whatever that means. The response continued:

The Government is committed to the implementation of food hygiene standards to ensure food safety and will take all necessary steps to protect public safety.

The Minister did not consider the recommendation; he gave a quick response. These are meant to be whole-of-government responses. All they involve are the ignorant responses of the Minister for Fisheries. I hope that the chairman of the committee takes what is said in this debate and the recommendations back to the Premier. Most of these issues are not just matters for the Minister for Fisheries.

The Hon. Jennifer Gardiner: He must think he is in a class of his own again.

The Hon. Dr B. P. V. PEZZUTTI: He is in a class of his own. Perhaps the problem was that he brought out the report because nobody wants to touch him, to go near him -

The Hon. Jennifer Gardiner: An untouchable.

The Hon. Dr B. P. V. PEZZUTTI: He is one of the great untouchables, the great unwashed. On page 146 the Standing Committee on State Development stated:

The Standing Committee considers that the present system where the fishery manager also plays a major role in the allocation of the resource, exposes it to the criticism that there is an opportunity, perceived or real, for interest groups to "capture" the Department and receive a more favourable allocation.

That is an important part of public administration. The report continued:

This perception has been the major impediment to the equitable distribution of fisheries resources between competing user groups and the acceptance of allocation decisions. While the Standing Committee believes that a move to a fisheries management authority structure would be unnecessarily expensive and disruptive, it recognises the need to separate the

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allocater from the manager. The Standing Committee considers that there are existing mechanisms within the Government that are capable of separating resource allocation from management. The Resource and Conservation Assessment Council (RACAC), using techniques developed during the ongoing forestry resource allocation debate, has proven successful in this regard. The Standing Committee considers that RACAC has a role to play in fisheries resource allocation and expands on this proposition in Chapter 11.

In fact, the committee recommended that RACAC be involved. The report then dealt with research and the need for more effective enforcement. On page 152 the Standing Committee on State Development stated:

The Standing Committee considers that diversification of the role of fisheries officers and an expanding recreational sector have overextended the enforcement branch and affected its ability to carry out habitat protection and enforcement.

In terms of sustainability, the fisheries inspectors are not able to do the job. The committee then dealt with recreational licensing and committee members were astonished by the number of recreational fishermen who said it was a wonderful idea. The South-West Anglers Association submitted that recreational licensing would be acceptable as long as it looked at sustainability, the distribution of fishermen and that moneys gained from a licence must be returned in total to the fishery and then used in vital areas such as research and compliance. The Concerned Anglers Group of the Lake Macquarie district stated:

Licensing could possibly be used as an effective tool in the management of recreational fisheries provided that there was a sound proposal for the distribution of funds laid out. The greater majority of recreational anglers see a licence as an extra tax and will strongly oppose such a move unless they are convinced that the funds derived from the licence scheme are to be used in protecting and enhancing their recreational fishing opportunities.

The Australian Fishing Tackle Association arrived at the same solution. The committee looked at what was going on around Australia and at the end of that chapter recommended:

That the NSW Government introduce a general recreational fishing licence. Licence fees should be set between $20 and $30 per annum, with special arrangements for short and long term licences, children and families. The revenue raised through these licences must be held in trust under the control of a Board of Trustees to engender trust in the system by, and ensure accountability to, recreational fishers.

That was to apply to all fishermen. The committee also recommended:

That the application form for a general recreational fishing licence ask the applicant to estimate (1) how many hours per month they spend fishing and (2) what percentage of this time is spent fishing warm freshwater, alpine freshwater, estuarine, ocean beach and deep sea environments. The form should make it clear that this information will be used to allocate funds to these fishery types;

the information from (1) be used, in conjunction with research funded through the licence fee trust, to determine average recreational catches per unit of effort with a view to estimating the recreational catch in each defined fishery; and

the information derived from (2) be used to allocate licence fee revenue to research and management programs relating to fisheries with the greatest recreational effort.

The committee has made sensible recommendations. It then looked to Western Australia on how to engender value and interest in policing. Western Australia has a volunteer recreational fishing officer program which is to advise, be helpful and keep an eye on the activities in a fishery. The officers have no powers of arrest but the committee felt this program was worth trialing in New South Wales and, to our surprise, the Minister thought that this would be a good idea. It just about bowled us over when he said so. On page 162 of the report the committee recommended:

The Standing Committee considers the attention paid to recreational fishing activity in the present resource allocation framework to be insufficient and a significant shortcoming of the fisheries management structure . . .

The Standing Committee believes that the introduction of an inland recreational licence without a parallel marine licence would be unfair, confusing and ineffective . . .

Despite these concerns regarding an inland recreational licence, the Standing Committee strongly supports the introduction of a general recreational fishing licence.

The committee wanted that to apply right across the State but the Minister will not have a bar of it. The committee then considered resource sustainability and the important matter of estuarine and marine habitat. The committee has gone up and down creeks, in and out of boats, looking at pH meters and the like. However, it had no idea where the Government was coming from in managing the rivers and the coastal zone and recommended that the Government release its coastal policy.

At the time of the release of the report in November 1997 the Government’s coastal policy was long awaited but not delivered. However, it has since been delivered, and will be a matter for another day. The Standing Committee on State Development carried out research on environmental issues in the late 1980s and early 1990s and released a major report on regulation. Suffice it to say that in terms of the Fisheries Management Act, the objects of the Act listed in section 3(2) include a commitment to conserve fish stocks and protect key fish habitats; and to promote ecologically sustainable
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development. The committee understood clearly that that could not be done by a single agency. Duncan Leadbitter, Executive Director of Ocean Watch, said:

Most of the damage that was done to flood plains was done long before the Fisheries Management Act even recognised environmental management as an issue.

Mr Angel from the Total Environment Centre stated:

It is our view that additions should be made to the Act so that accountability is improved and a coherent management system can be put into place. Further, there is a clear need to improve the capacity of the Department of Fisheries. In this regard it will be important to separate the conservation and economic exploitation aspects of the fisheries agency. Past experience, for example, shows that these two duties cannot be placed in the one agency as economic factors inevitably degrade delivery of environmental regulation.

Dr Darryl Grey, the principal manager, said that the Office of Conservation has a staff of 12, including five field officers, six field managers and himself. In evidence Dr Glaister outlined the role of the Office of Conservation as follows:

The most recent change has been the creation of the Office of Conservation, which will bring together all of the Department’s activities concerned with the area of conservation. This has been a quite deliberate decision to highlight the importance that is placed on conservation issues. Paul O’Connor is acting in that capacity as head of that unit at the moment. It includes elements of research, management, compliance and information.

The committee was not too impressed by the statement of Dr Glaister that he had a staff of 12 to look after the habitat and environment of the fisheries of New South Wales and the Minister obviously is not very impressed by it either.

The Hon. R. D. Dyer: I am not very impressed by your speech. It is tedious, lengthy in the extreme and very boring.

The Hon. Dr B. P. V. PEZZUTTI: The Minister seems to find matters of science and conservation boring. However, he becomes excited about a phenomena called the millennium bug; he thinks it is some sort of virus. It is not. The standing committee reported on coastal policy in 1991. It wrote:

The difficulty of coordinating formally autonomous but functionally interdependent organisations constitutes a major obstacle to the implementation of policy and related strategy.

In that report the committee recommended:

. . . that the State Government establish an agency, to be called the State Coordination Agency, vested in the Premier, to facilitate coordination between government agencies.

What a sensible recommendation. If the Premier had the brain to pick up that recommendation, he would be able to control his Minister and control co-ordination of agriculture, environment, land and water conservation, fisheries, and a range of other users of the resource. Mr Angel of the Total Environment Centre supported the approach of Dr David Pollard, habitat research and manager, New South Wales Fisheries, and said:

It would be sensible to treat the natural environment, at least in the higher order regulatory functions like pollution and threatened species, as one system, which is what it is. It is one system that you must devote regulatory resources to resolve some of the critical problems that are essentially canary warnings. Yes, we never actually believed that the Fisheries Management Act of necessity only required one agency’s effort.

He had never believed that, and neither did the committee. The committee recommended that:

The Office of Natural Resources and Policy review, as a priority, all natural resource legislation relating to integrated land and water management and development in the coastal zone.

At page 191 of its report the committee set out a number of performance measures for the review, including the creation of clear and accountable lines of responsibility and management of coastal resources by State agencies; clear and separate roles of resource management, resource use, and monitoring and reporting on coastal resources; and provision for a compulsory mechanism whereby agencies share and consult in a strategic manner on decisions that affect natural resources. Though the committee set out ideas on how to protect the environment, the Minister’s response reveals that he has not accepted those recommendations and ideas.

The committee also dealt with the serious and vexed question of acid sulphate soils, a long-term problem on the north coast. For the information of the Minister for Public Works and Services, for I know he likes to learn something new every day, acid sulphate build-up occurs in soils that have a high ferrous sulphate content. Drying of the soil results in acid sulphate. In times of flood this converts to sulphuric acid, which is then carried into streams and rivers, killing our fish.

Acid sulphate soils are responsible for the large fish kills on the north coast whenever we have flooding rains. The committee’s recommendation was that the Department of Land and Water Conservation, New South Wales Agriculture and New South Wales Fisheries immediately establish a task force to examine issues related to acid sulphate soils. I do not know what has happened with that
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proposal. It seems to have disappeared in Cabinet. The Minister, being a member of Cabinet, must have seen the committee’s report. Why has this matter disappeared in Cabinet? What action is to be taken?

Then the committee turned its attention to inland fisheries, including fishing in the Snowy Mountains. The committee inquired into the impact on those fisheries of dams, fish traps, European carp, general degradation of our waters, and interruption of water flows. Another impact related to the introduction of feral animals such as trout. That apparently surprises my colleague the Hon. D. J. Gay, but feral animals such as trout introduced into our waterways have killed off some of our native fish species and compete vigorously with native fish for sustenance. Another matter affecting our inland fisheries are the willows that grow along inland waterways, particularly in the Snowy Mountains. A further but real issue related to barriers to fish migration and breeding. These important matters were considered by the committee after taking much evidence from experts and community members.

The committee dealt also with aquaculture, how to add value to our fish stocks and fisheries, and the marketing of our product. The committee inquired into aspects such as selecting the right breed of fish for aquaculture, undertaking appropriate research, establishing correct breeding processes, and establishing the best markets for the aquaculture product. The committee examined industry viability, environmental problems created by fish farms, and aquaculture generally. During the inquiry the oyster committee visited just about every research centre in Australia, and saw the marvellous things that can be done if only people actively pursue appropriate research. In the course of its research inquiry the committee was astonished to learn that before anything is released from New South Wales Fisheries the Director-General has to sign it off. In fact, the Master Fish Merchants Association gave this evidence:

The MFMA has previously found the Fisheries Research Department to be efficient and professional. The Association’s requests in regard to catching sector research had received very helpful and detailed replies . . .

It came as a surprise when the research department, unofficially, expressed to the MFMA their concerns about the deteriorating relationship between Fisheries senior management and the catching sector . . . The industry wide conjecture is that if the content of the draft report was not commensurate with ministerial and Fisheries Department preferred results, such reports were subject to significant editorial change. Such speculation is destabilising for industry and associated research.

In response to questions put by my colleague the Hon. I. Cohen, Dr Glaister sought to clarify the current arrangements regarding the review of research material. My colleague asked Dr Glaister:

Can you understand why people may perceive that there may be an unhealthy amount of interference in research that should be independent?

Dr Glaister replied:

I would agree that science needs to be independent. I do not know whether I would agree that it is unhealthy that I take that interest because, as I say, I am responsible to the Minister for the administration of New South Wales Fisheries, and an important part of our work is that involved with research. So I see it as entirely consistent that I take an interest in the outputs from the research section.

Professor Kearney, the previous Director of Fisheries Research, said:

I think it is important that the Director of the Department be made aware of all research findings. In fact, it was one of my areas that I had been pushing both while I was with the New South Wales Government and since I left, that one of the things that governments have done in recent years is let research and policy get too far apart.

Many a Minister has said to me that it is easy to make good decisions if you are given good advice. Unfortunately, in New South Wales Government in recent years, the research and policy divisions of various departments have got further and further apart . . . I was keen to address that. I think it is important that the policy and management are fully advised of research outcomes but I do not believe there should be any direction of what research should be published in the peer review literature. I think that would be inappropriate.

On that matter the committee recommended:

That the Director of Fisheries be advised of research results but not hold power of veto over the publication of those results.

In other words, the committee was concerned that reports were being changed, and that the nature and interpretation of results were being varied. The committee then reported on the determination of research priorities. In part 4 of its report the committee addressed indigenous participation in the New South Wales fishing industry. This proved to be a sensitive issue. The committee considered matters such as native title and how indigenous fishers might exhibit their rights in other States. The committee also tried to get from the Minister for Aboriginal Affairs, Dr Refshauge, a clear statement of his views on Aboriginal fishing rights. Those attempts were to no avail. We got nowhere. The committee took this evidence from the New South Wales Aboriginal Land Council:

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Commercial fishing typically involves hauling whatever fish are there and keeping the most commercially valuable species. The immediate demands of the market do not necessarily encourage consideration of factors such as the continued existence of any species.

By contrast Aboriginal people employ a "circular" method of fishing where we fish for whatever is in season at the time. For example, there are specific times of the year when prawns are plentiful and at that time of year we target prawns. It is the same with other species of fish such as mullet and so on.

At the end of the day, after consideration of the sensitive issues involved, the committee recommended:

That Aboriginal community licences be introduced and that "general purpose licences" be developed to accommodate the indigenous fishing methods of the Aboriginal commercial fishers in the assessment of catch history.

Further, the committee noted:

NSW Fisheries should review catch history requirements for indigenous fishers who have been excluded under current restricted fisheries regulations.

The committee also made recommendations on participation of indigenous fishers in New South Wales fisheries. The committee then dealt with resource assessment and allocation issues and stated at page 336 of the report:

The Standing Committee believes that the implementation of an unbiased, transparently compiled and widely accepted resource assessment process is the first step towards an equitable and sustainable allocation of the State’s fisheries resources. The Standing Committee recognises that parallels exist between the management and allocation of both forestry and fisheries resources and believes that RACAC, through the development of forestry management strategies, has achieved a high degree of consensus among stakeholders in the forestry debate.

The committee recommended that:

NSW aquatic resources, including fish and fish habitat, be assessed as part of the continuing work of RACAC so as to provide an accurate, current and ongoing assessment statement of the state of NSW fisheries.

At page 339 of the report the committee recommended:

That the Fisheries Management Act 1994 be amended to provide for the provision of adjustment assistance and/or the payment of compensation to commercial fishers who either are excluded from their fishery as a result of a resource allocation decision . . . or wish to surrender their endorsement. Specific compensation and structural adjustment packages should be determined by RACAC.

The report also contains a dissenting statement, which I will leave for my colleague the Hon. Jennifer Gardiner to deal with in detail. I commend the report to the Minister and the Government. I hope the Minister will take the report and our comments back to the Government. The Government should watch Bob Martin carefully, because he will destroy the fishery, like any cancer can destroy other organisms.

The Hon. JENNIFER GARDINER [6.01 p.m.]: As with a number of other reports of the Standing Committee on State Development, the report on fisheries management and resource allocation will probably be a reference point for policy makers dealing with fisheries issues well into the future. That will probably not be the case with the current Minister for Fisheries, who was described by a member of the committee, the Hon. I. Cohen, as a recalcitrant Minister. The Minister is arrogant and is a complete liability to the Government.

The Hon. Dr Meredith Burgmann: Who is this?

The Hon. JENNIFER GARDINER: I am referring to the Hon. Bob Martin, the Minister for Mineral Resources, and Minister for Fisheries.

The Hon. Dr Meredith Burgmann: It doesn’t sound like the Bob Martin I know.

The Hon. JENNIFER GARDINER: The Hon. Dr Meredith Burgmann says it does not sound like the Bob Martin she knows. The Hon. I. Cohen said - and I do not know whether the Hon. Dr Meredith Burgmann agrees - that Mr Martin is a ball and chain dragging on the feet of the Carr Government.

The Hon. Dr Meredith Burgmann: Who said that?

The Hon. JENNIFER GARDINER: The Hon. I. Cohen said that. That was his judgment of the recalcitrant Minister. It is interesting that not one of the members of the Labor Party who took part in the inquiry into fisheries management and resource allocation has leapt to the defence of the Minister for Fisheries. In fact, hardly anyone from the Government side is listed to speak in this debate. Indeed, the former chairman of the committee jumped ship before the inquiry was completed, and committee members noted that when the Hon. A. B. Kelly was appointed chairman, he was extremely anxious to get this inquiry over with. He did not want to be lumbered with having to deal with the Minister for Fisheries, as the Hon. Patricia Staunton had been.

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The committee worked extremely diligently and productively, with great assistance from the standing committee’s secretariat. I particularly express my appreciation to the secretariat staff - Stewart Webster, Michael Lowry and Annie Marshall - for the extraordinary amount of work they did on the report. The report traversed a great deal of ground, and indeed water. It surveyed the history of fishing and fisheries management in New South Wales from pre-colonisation days to the present, and it covered coastal and inland fishing. I had intended to deal briefly with the committee’s several dozen recommendations and the Minister’s paltry and desultory responses to the report, but my colleague the Hon. Dr B. P. V. Pezzutti started to do that. I may have to return to that duty during next week’s debate on the report.

However, I want to put on record an extremely interesting extract from the inquiry that indicates the sort of person the Minister for Fisheries is. On 4 April last year the standing committee heard from the former director of New South Wales Fisheries, Mr Paul Crew. He appeared before the committee to tell us how he met his demise. He outlined to the committee his background in the accounting profession. Mr Crew said he had been the Director of Sea Fisheries in Tasmania in 1987. He was then head hunted by the New South Wales Government to consider the position of Director of New South Wales Fisheries.

Mr Crew was encouraged to apply for the job, and he came to New South Wales Fisheries at the end of the Wran and Unsworth era knowing that the industry was in some turmoil. As he put it, for some time there had been a lack of management and for some years there had been a promise of management for the industry, but the department’s morale was low. As my time is running out, I simply flag that Mr Crew was dismissed. Next week I will go into the details of how that happened. Basically, he said that the Minister was gutless and horrendous in the way he dealt with the director. I am sure we will hear more about that in due course.

Pursuant to resolution business interrupted.

Standing orders suspended, by leave, to allow the presentation of an irregular petition.

Petition praying that the removal from office of the Hon. Justice Vince Bruce be opposed, received from the Hon. Janelle Saffin.

Debate resumed from an earlier hour.

The Hon. HELEN SHAM-HO [6.07 p.m.]: Before this debate was interrupted I was saying that the Motor Vehicle Repairs Amendment Bill will increase the size of the Motor Vehicle Repair Industry Council by three. The Minister noted in his second reading speech that these additional places were intended to provide for more consumer input. However, the bill does not intimate any such intention. The amendment proposed to section 8(1)(h) of the Act simply provides that members will have "expertise appropriate to the functions of the Council".

I ask the Minister in his response to clarify exactly what that means. It is vital that we know in which areas of the council’s functions members must have expertise. Will those be consumer concerns, licensing issues, the conduct of disciplinary hearings, or dispute resolution? Must the members have expertise in dealing with the contingency fund or education and research funding? The Government should clarify exactly how the Minister will gauge whether the nominees for appointment possess the required expertise. For the efficacy of the Legislative Council it is essential that all members are experts. I hate the thought of jobs-for-the-boys appointments. Apart from those concerns and some further clarification, the Opposition will not oppose the amendments.

The Residential Tenancies Amendment Bill will amend the Residential Tenancies Act 1987, and
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will also make consequential amendments to the Fines Act 1996. I foreshadowed that the Opposition would not support the penalty notice provisions contained in the bill, nor would it support the consequential amendments to the Fines Act. The Government moved amendments to section 19 dealing with user charges for the supply of utilities between landlord and tenant.

The Opposition does not object to the provision within the Residential Tenancies Amendment Bill for tenants to terminate tenancies on the ground of hardship - a right that landlords presently have. It is fair and equitable for tenants to have the same rights as landlords in relation to terminating tenancies on hardship grounds. The Government successfully moved amendments in the lower House to require the mitigation of loss in relation to compensation payable for the termination of tenancy. The tenant must take all reasonable steps to mitigate the loss, and is not entitled to compensation for loss that could have been mitigated.

The Government also successfully moved amendments in the lower House requiring landlords to mitigate all loss, and denying landlords compensation for loss that could have been mitigated, which is fair enough. There have been some concerns that tenants would be better off abandoning the tenancy under their existing rights, as landlords still have an obligation to mitigate loss if the tenancy is abandoned. Under the new provisions the tenant would have to wait until the tribunal had ruled on terminating the agreement on the basis of hardship, which may cause a delay of several weeks. The Opposition did not oppose these amendments moved in the lower House. We will, however, oppose the penalty notice provisions contained in this and other bills before the House at this time.

The Retirement Villages Amendment Bill seeks to make two amendments as well as consequential and other minor amendments. The bill will insert new section 5A into the Act, which will extend the ambit of the Act to retired persons who occupy residential premises that were retirement villages when they entered the contract but that are now mostly occupied by non-retirees. The Act will also be extended to authorities that administer the premises. The second amendment will provide for dispute resolution mechanisms for impasses concerning the annual budget of a retirement village. The Residential Tenancies Tribunal will adjudicate the disputes. This will ensure the continued running of retirement homes. The Opposition will not oppose parts of the bill. However, it will seek to amend this bill as it did in the Lower House. The Opposition will seek to amend new section 14A(3) to make it mandatory for the Residential Tenancies Tribunal, when involved in budget impasses, to consider all the terms and conditions of duly signed contracts between residents and the administering authority, and expenses of the village. The Government amended this in the lower House, but it was not specific and did not go far enough. The Government’s amendment inserted at the end of new section 14A(3) reads:

The determination of the application must accord with the contractual obligations of the administering authority to provide services and facilities.

This amendment will appear in the second print of the bill. The Government has strengthened the mandatory nature of the tribunal, but not in relation to expenses incurred by the village when resolving budget impasses. A budget impasse cannot be resolved unless the contract and the expenses are specifically examined together. The Opposition will oppose parts of the cognate bills and requests that each be dealt with seriatim on the second reading and in the Committee of the Whole so that amendments can be moved to each bill.

The Hon. J. H. JOBLING [6.16 p.m.]: The Fair Trading Amendment Bill and cognate bills might have been considered omnibus legislation. They cover an enormous amount of ground. The concerns I raised have only recently come to hand. Rusty Priest, the State President of the Returned Services League of Australia, is extremely concerned about the amendments to the fair trading and retirement villages legislation. In a fax of 2 June he stated:

Whilst the Retirement Village consultative Committee in early 1996 made recommendations to the Department for minor amendments to the retirement village legislation to alleviate the difficulty in resolving budget impasses, unfortunately industry stakeholders were not involved in the drafting of the exposure bill.

No consultation took place in relation to any amendments to the Fair Trading legislation that might impact on retirement villages.

The Opposition is extremely concerned about the Property, Stock and Business Agents Amendment (Penalty Notices) Bill and the Landlord and Tenant (Rental Bonds) Amendment (Penalty Notices) Bill. The Opposition believes that the provision for penalty notices in the bills is not controlled. It is an unrestricted possibility that can be enforced by
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regulation, and can cause many problems. Under standing order 106 I require that the question on the second reading of the bills be put seriatim. Further to that request, I move:

That the question on the second reading of the Property, Stock and Business Agents Amendment (Penalty Notices) Bill be amended by omitting the word "now" and inserting instead "this day six months".

In relation to the Landlord and Tenant (Rental Bonds) Amendment (Penalty Notices) Bill I move:

That the question on the second reading of the Landlord and Tenant (Rental Bonds) Amendment (Penalty Notices) Bill be amended by omitting the word "now" and inserting instead "this day six months".

That will prevent the inclusion of those two bills in this package of legislation. The bills should be redrafted to remove the totally unrestricted arrangements relating to penalty notices. My amendments will enable the proper consideration of those bills and ensure that they are properly drafted.

The Hon. R. S. L. JONES: [6.21 p.m.]: I speak only on the Retirement Villages Amendment Bill. I do not oppose the Retirement Villages Amendment Bill but I seek to convey concerns that have been expressed to me in correspondence from the Retirement Villages Residents Association and I ask the Minister to listen carefully to those concerns. Currently there is no avenue for retirement village residents who may have taken part in the budget process, but who disagree with its outcome, to appeal to an independent body.

This bill will empower the Residential Tenancies Tribunal to adjudicate in such circumstances. The Retirement Village Residents Association is concerned, however, that total reliance on the Residential Tenancies Tribunal does not present a simple, readily available solution to older people. Many residents may feel insecure and uncomfortable with any form of official proceedings which appear complex and difficult to understand. In this context residents may be reluctant to pursue actions in an unfamiliar and unfriendly environment, particularly when it involves a potential threat to their homes.

The residents association asks that the process by which budgets are presented to and considered by residents be prescribed by standards and principles which could be incorporated into the code of practice or even the Retirement Villages Act. If the content, format and management of village budgets is presented to village residents with clarity and consistency, according to basic guidelines, many of the reasons for budget impasses may not arise.

The second amendment will ensure that the rights of village residents are maintained regardless of whether retirees constitute a majority of village residents, and it will ensure that a person administering the premises continues to be obligated under the Retirement Villages Act 1989 in spite of the fact that the premises may no longer be classified as a retirement village. It is important that retired people feel that their rights are protected, regardless of whether or not the village has changed its focus. However, the Retirement Village Residents Association believes that it is unfair that contracts allow a change in the identity of the retirement village from that which was declared when the leasehold was undertaken.

The purchase right to occupy accommodation in the retirement village is commonly understood to be a balance of life undertaking. Retention of a sizeable portion of the entrance fee supports this concept. Surely if a retirement village changes its identity this should occur only in special and clearly defined cases in order to avoid residents feeling disrupted and dislocated. The Retirement Village Residents Association notes that a clearly defined deterrent to re-identification of a village needs to be in place in order to avoid operators not giving consideration to their responsibilities as owners of retirement villages and changing the structure of villages to suit their commercial interests.

We are currently awaiting the outcome of the review of the retirement village industry by the Department of Fair Trading. Current problems, such as the number of providers who have continued to ignore the current regulations, are leading to distress and hardship for many residents of retirement villages. I urge the Minister to use the review as an opportunity to strengthen the Retirement Villages Act and the code of practice and enforce provider and customer compliance with industry regulation. I seek leave to table the submission of the Retirement Villages Association on the review of retirement village regulations.

Leave granted.

Debate adjourned on motion by the Hon. Dorothy Isaksen.

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The Hon. R. D. DYER (Minister for Public Works and Services) [6.24 p.m.]: I move:

That this House do now adjourn.

The Hon. D. F. MOPPETT: [6.24 p.m.]: I wish to report a deplorable incident which occurred last week within the precincts of this Parliament. Honourable members will recall that the annual general meeting of the Commonwealth Parliamentary Association was held last Wednesday, 27 May. In order to attend that meeting I proceeded to room 814-15 and took my place a few minutes before 7.00 p.m., when the meeting was due to commence. Prior to the President’s call to order the honourable member for Port Stephens, the Hon. Bob Martin, arrived and, because of the configuration of the furniture, he was obliged to pass close by me on his way to one of the few remaining seats. By chance, I met his gaze and spontaneously offered a courteous but restrained greeting. Mr Martin paused and began to speak deliberately and in a low but clearly audible voice. It was a brief utterance but the message was unmistakable and I was literally amazed at the extent of his indiscretion.

This was no intemperate outburst, nor could it be passed off as an empty fulmination containing vulgar abuse. Were it such, this incident, although a regrettable lapse from acceptable behaviour, would not warrant taking up the time of the House in debate. More in sorrow than in anger I have to say that the clear intent was to issue a warning to me to desist in a particular aspect of my parliamentary duties, and that warning was backed up by a thinly veiled threat. This unfortunate exchange, which occurred as I have said in a public place, was clearly heard by three other members who were seated adjacent to me.

They have confirmed my impression that Mr Martin intended to inhibit me in pursuing my function as a member of this Parliament. Whilst considering a more formal step I took the initiative of reporting the incident to certain officials so that it might not be argued subsequently that the offence was attenuated by dilatory action. I also took the precaution to write down my best recollection of the words used by Mr Martin within an hour or so of the event. I have assiduously avoided any discussion with the members who heard what was said so that I can fearlessly deny any suggestions of collusion.

Honourable members will be well aware of the time I have spent debating matters introduced by the Minister for Fisheries - the office which Mr Martin holds in this Government. I acknowledge that my opposition to his policies has been sustained and indeed relentless and my criticism of his administration has been trenchant, although I believe it to have been soundly based and well argued. For the life of me I cannot understand why Mr Martin has taken this activity as a personal criticism or why he has singled me out from amongst the members who hold similar views and who have expressed a comparable lack of confidence in his administration. It is my job to represent the Opposition in these important matters, and it would have been a dereliction of my duties to have done any less. One of the fine traditions of this Parliament is that we leave our political differences behind when the debate is concluded and when we leave the Chamber.

In my opinion there is no room for bitter, personal enmity in our system of adversarial political democracy. If I did not believe passionately in this convention I could easily lapse into the tantalising conclusion that this incident constitutes a compliment, albeit back-handed, to the effectiveness of my performance in the Legislative Council, as measured by the intense irritation which I have apparently caused. I urge the Attorney General, who is in the Chamber, and other Government members to counsel their colleague on the value of this convention, not only to others but in particular to Mr Martin. He must be under some enormous emotional pressure which gave rise to such a venting of spleen, which can only in the long run diminish him. I hope that his friends can assist in restoring his mental equilibrium. My colleagues who heard the exchange have suggested to me that Mr Martin’s intentions were more sinister and more reprehensible than I have so far indicated.

The PRESIDENT: Order! I remind the honourable member that he may not impute improper motives other than by a substantive motion.

The Hon. D. F. MOPPETT: I view this possibility seriously and I am mindful of the unsubstantiated accusations that have been made to me suggesting that the Minister has attempted to coerce fishermen into acquiescing to the controversial policy changes that he has proposed and which I have opposed on their behalf, but I have given no credit to them. As the offence on this occasion was perpetrated against me I intend to exercise my prerogative to take the matter no further
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than this address tonight. But I warn the Minister that I will vigorously pursue any future report that comes to my notice which demonstrates that threats or coercion were used or implied by the Minister against any citizen. At the very least, the incident represents a gross breach of good conduct and a crude abuse of the mutual respect one would expect of civilised people. It also indicates a serious flaw in the character of the Minister and calls into question his capacity and fitness to remain in his present office. Beyond that - [Time expired.]

The Hon. ELISABETH KIRKBY [6.29 p.m.]: I wish to place on the record a letter dated 29 May I received from the Aboriginal Corporation for Homeless and Rehabilitation Community Services seeking urgent housing for Mrs Debbie Gallpen. The letter states:

Mrs Gallpen applied to the Department of Housing for priority housing for herself and three daughters all of whom are at present accommodated in one small room at our establishment and one daughter who has to live with friends during the week days so she can attend school. She is urgently in need of a three bedroom apartment in the eastern suburbs.

The writer, Mr Sydney J. W. Wells, consultant, interviewed Mrs Gallpen. The letter continues:

I interviewed Mrs Gallpen who was in tears when she explained to me that an officer from the Dept. of Housing advised her to come to a hostel and basically assured her she would be placed on the immediate housing list. Instead her family is cramped in refuge accommodation and is split during the week days and she has since been told she doesn’t qualify for immediate housing.

As a Fellow of the Royal Statistical Society and as sometime Fellow of the Royal Australian Institute of Public Administration I opine that there has been an error in the judgement of the Dept. of Housing when they refused Mrs Gallpen immediate housing in a three bedroom apartment. I feel that Mrs Gallpen may not have explained her position as she should have.

Some years ago you promised to support my contention that the Aboriginal Corporation for Homeless and Rehabilitation Community Services should be given a twenty-six storey building so that we would have ample room for everyone. I know that this is a tall order but I am sure you will be able to help Mrs Gallpen with her application to the Department of Housing.

Enclosed please find a photo copy of a medical certificate for Dr Peter C. Fallon of . . . Alison Road, Randwick.

The letter is signed by Mr Wells and the medical certificate states that Mrs Gallpen is suffering from insomnia, anxiety and migraine. The Minister for Housing should look into this matter as a matter of urgency. It is unsuitable for Mrs Gallpen to have to share one room with two of her daughters. Because of her ill health and her family situation, she deserves urgent accommodation. I ask the Attorney General to bring this correspondence to the attention of the Minister for Housing. I ask again: what are the priorities of this Government when it can provide $12 million of State funds to relocate a football team but cannot provide sufficient emergency housing? The Government’s priorities are totally wrong, and they should be rethought. We need money for emergency housing. Football clubs pay large sums of money to transfer players, and they can look after themselves.

The Hon. R. S. L. JONES [6.33 p.m.]: The people of New South Wales have been waiting nearly 25 years now for the right to know the reason for Government decisions. The introduction of such rights was first recommended by a Law Reform Commission report in 1973, and has been promised by successive State Governments ever since. Prior to the March 1995 State election, this Government promised to bring the people of New South Wales into line with the Commonwealth in reviewing decisions by government officials. Sadly, however, that promise is yet to be completely fulfilled.

In June last year this Parliament passed a bill to create an Administrative Decisions Tribunal - the ADT - to review decisions of government officials, including Ministers. That bill established the framework for the tribunal and the associated right for the public to obtain reasons for the officials’ decisions and the right to appeal, but did not create any new rights of appeal. It merely shifted some important rights of appeal, especially in relation to freedom of information, from the District Court to a more accessible non-legal tribunal. As the Attorney General quite rightly stated at the time, that initiative fulfils only part of the Labor Government’s commitment to ensuring open and accessible government.

Four stages of legislation were required to establish the ADT. As I have already stated, stage one, the bill passed in June last year, provides the structure for the tribunal and associated rights to reasons and appeal, and moves some important existing rights of appeal from the District Court to the new tribunal. Stages two, three and four were expected to set out the areas of government decision making that would be subject to the rights to reasons and appeal. The second stage legislation, which was introduced by the Government and passed through this House earlier today, the Administrative
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Decisions Tribunal Legislation Amendment Bill, confers jurisdiction on the tribunal, but it is little more than a housekeeping bill and does little to expedite the commencement of the tribunal.

The bill merely shifts a few more decisions from the courts or other tribunals to the new tribunal, and only provides new rights of appeal in very limited areas, such as some decisions of the Vocational Education and Training Board and the Forestry Commission, and the accreditation of mediators at community justice centres. Because of the distinct lack of progress being made by the Government towards the full implementation of the ADT, I am concerned that Ministers are not being as co-operative as they should be in identifying the areas over which the ADT should have jurisdiction, that is, the types of decisions that should be reviewed by the ADT.

Considering the responses received by the Public Interest Advocacy Centre - PIAC - from the five Ministers who were asked to comment on whether the ADT should have jurisdiction to review certain decisions made by them and their agencies, my concern is well founded. When approached by PIAC in May 1997, the Ministers responsible for housing, community services, education, corrective services and environment refused to agree to their decisions being made subject to the ADT. However, these are the exact types of decisions in respect of which people should be able to obtain reasons, and appeal against. Decisions made by those Ministers and their agencies directly and indirectly affect people’s lives. Therefore I call on the Premier to take decisive action and direct the Ministers that their decisions will be subject to the ADT, appoint a president of the tribunal and provide it with an adequate budget, and ensure that the tribunal is fully established by the end of this year.

The Hon. P. T. PRIMROSE [6.37 p.m.]: I would like to refer to the imminent closure of the Illawarra Montessori Preschool - also known as IMPS - because of the lack of premises. Following a
decision by the Lutheran Church to sell the premises, IMPS has security of tenure only until the end of 1998. Whilst IMPS parents are totally dedicated to the task of purchasing the building, they are not wealthy enough to be able to raise the necessary funds. The Lutheran Church is seeking approximately $100,000 from the sale of the property. The IMPS committee, after obtaining advice from local real estate agents, believes that approximately $75,000 would be a fair price.

The church has no reservations about selling to IMPS, and the committee is confident that it could negotiate a reasonable price with the church if it were in a position to offer a substantial deposit with an undertaking to repay the rest in monthly instalments. IMPS Incorporated is run on a not-for-profit basis. The committee is running fundraisers and fetes, as it always has, but they take time and only a few months are left to raise funds. For more than 15 years IMPS has been providing secure, high-quality child care and early childhood education for many working families, and it is the cheapest Montessori school in New South Wales. It offers the only alternative child-care program in the immediate area south of Wollongong.

The IMPS families are not independently wealthy; in 1997 six of the 20 families received an economic subsidy. If IMPS closes, only the wealthiest would be able to afford a Montessori education; two or three of the students may go on to primary education at Elonera Montessori School in Wollongong. IMPS is seeking assistance in any form, such as a grant for a deposit towards the purchase of these premises, a low-interest or interest-free loan, the offer of one or two rooms in a State- or Federally-owned property, or liaison with another local organisation that may have suitable space at a price that would enable IMPS to continue to provide its service at an affordable cost. I urge the responsible Ministers to consider these requests and to take whatever action they can to support the continuation of the Illawarra Montessori Preschool.

Motion agreed to.