Thursday, 19 November 1998
The President (The Hon. Virginia Chadwick) took the chair at 11.00 a.m.
The President offered the Prayers.
EGAN v WILLIS and CAHILL
Tabling of Judgment
The PRESIDENT: Order! I table the judgment of the High Court of Australia in Egan v Willis and Cahill on appeal from the Supreme Court of New South Wales, in which the appeal was dismissed with costs.
Ordered to be printed.
The following bill was returned from the Legislative Assembly with amendments:
Privacy and Personal Information Protection Bill
STANDING COMMITTEE ON SOCIAL ISSUES
Report: Interim Report on Inquiry into Adoption Practices
The Hon. Jan Burnswoods, as Chairman, tabled report No. 17 of the committee entitled "Interim Report on Inquiry into Adoption Practices: Transcripts of Evidence from 27 August 1998 to 19 October 1998", dated November 1998.
Report ordered to be printed.
The Hon. JAN BURNSWOODS [11.07 a.m.]: I move:
That the House take note of the report.
As honourable members are probably aware, the inquiry into adoption practices has been under way since June of this year and has proved to be the most emotional conducted by the social issues committee. Reference was received from the Minister for Community Services, the Hon. Faye Lo Po’, to inquire into professional practices in the administration and delivery of adoption and related services in New South Wales from 1950 to 1988. The Minister’s reference followed a great deal of concern expressed by many women who had lost their babies to adoption through those years and a great deal of good advocacy work done by Pat Rogan in particular, who this year celebrates his twenty-fifth year in Parliament. The inquiry proved to be of great interest not only in New South Wales but throughout Australia. People from other States attended the committee hearings.
To date the committee has received 246 submissions and four days of public hearings have been held in this Chamber or in other rooms of the Parliament. Those appearing before the committee included several mothers who had lost their babies to adoption, and one father, and representatives from the departments of health and community services, the Australian Association of Social Workers, the Post Adoption Resource Centre and several church-related adoption agencies.
There has been considerable media interest in the inquiry - in the metropolitan and smaller regional and suburban papers and also in the nightly television news broadcasts and current affairs programs. Each public hearing was attended by more than 100 members of the public. As I said, the inquiry was the most emotional of the inquiries conducted by the social issues committee. Committee staff have taken numerous calls from very distraught mothers who simply wish their story to be heard. The hearings have been very distressing at times, with many people visibly overwhelmed by the evidence presented.
I thank the staff who had to handle difficult matters and distressed individuals. Many of the emotional mothers and fathers wanted to be able to read their evidence or the evidence presented by other people. The committee has had many requests for the material to be published. I am glad that the issue has been addressed and that the voices of this group of people have been heard. This the opportunity to empower a group of people in our community who feel that they have been ignored for the past 30 or 40 years.
Debate adjourned on motion by the Hon. Jan Burnswoods.
Motion, by leave, by the Hon. A. B. Kelly agreed to:
That standing orders be suspended to allow the presentation of an irregular petition from 1,560 citizens of New South Wales concerning the increase of crime in Wellington and seeking the support of the House for a 24-hour police station at Wellington.
COMMISSION FOR CHILDREN AND YOUNG PEOPLE BILL (No 2)
CHILD PROTECTION (PROHIBITED EMPLOYMENT) BILL (No 3)
OMBUDSMAN AMENDMENT (CHILD PROTECTION AND COMMUNITY SERVICES) BILL (No 3)
Consideration resumed from 18 November.
The CHAIRMAN: The Committee is dealing with part 7 of the Commission for Children and Young People Bill (No 2). Last evening the Chair ruled out of order an amendment of the Hon. R. S. L. Jones. On further consultation it has been established that the amendment is in order. As the Committee has not passed the part of the bill to which the amendment relates, it will not be necessary to recommit the bill. The Hon. R. S. L. Jones is at liberty to again test the will of the Committee.
The Hon. R. S. L. JONES [11.16 a.m.]: I move the amendment circulated in my name:
Page 20, clause 35(2), line 32. Omit "may". Insert instead "must".
Unfortunately, there was a misunderstanding yesterday in Committee when it was thought that this amendment was covered by a Government amendment. In fact it was not. The overall aim of my amendment to part 7, which deals with employment screening, is to ensure that guidelines are published which will set standards that can be followed in a consistent and equitable manner by employers and screening agencies. Clear and equitable guidelines will mean that employees are aware of the process and of their rights under that process. This is a revised version of my amendment because the Government took on board the concerns of the unions and moved its own amendment to ensure that the employment screening guidelines are published.
I am pleased that the Minister will not have the discretion not to publish guidelines. My amendment would strengthen the guidelines by ensuring that they contain procedures and standards relating to the confidentiality of information obtained for or as a result of employment screening. The information to be provided to persons subject to employment screening will include procedures enabling persons to correct any such information and the type of information that is to be provided to or withheld from employers by agencies carrying out employment screening on their behalf. These issues currently "may" be contained in the guidelines. The Teachers Federation argues that if the guidelines do not apply appropriate standards and protocols it is possible that different processes will be used by a range of employers. This could mean that some people might escape the net in some forms of child- related employment.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [11.18 a.m.]: The great nineteenth century English case of Julius and the Bishop of Oxford decided that "may" can meant "must" - "may" can mean "shall". This amendment seems to give effect to that principle. Accordingly, the Government supports the amendment.
Amendment agreed to.
The Hon. A. G. CORBETT [11.19 a.m.]: I move amendment No. 5 circulated in my name, which relates to the functions of the commission with respect to employment screening:
No. 5 Page 21, clause 36(1)(e), line 28. Insert "and advice" after "training".
The amendment explicitly makes provision of advice one of the functions of the commission in respect of employment screening. Employers who use the employment screening function of the commission may be required to consider and deal with a range of material including criminal records, apprehended violence orders and disciplinary procedures. Some employers find it hard enough to work out what has been reported in the higher school certificate; imagine their reaction when they are presented with the sort of records made available under
employment screening. It is not the role of the commission to make the decision for employers, but the commission should be able to advise employers of their obligations under the legislation and the options available to them. To protect employees and to protect its staff the commission must be explicitly authorised to provide advice. The importance of making that function clear in the bill is most evident when one looks at the provisions of clause 41, which relate to legal protection for persons involved in the employment screening.
Imagine that the commission gives an employer material on a potential employee and that the employer is uncertain about its meaning and seeks an explanation from the commission. After receiving an explanation the employer seeks advice on the options available to him or her. After considering the options the employer decides not to employ the candidate. The candidate challenges the decision of the employer in the appropriate court or tribunal. In defending the decision the employer makes it clear that he or she relied on the advice of the children’s commissioner to interpret the material made available from employment screening, and relied on the advice of the commission to determine what options were available in the light of the material.
If the commission does not have the function of providing advice the staff of the commission have no protection against any action, liability, claim or demand under clause 41(1)(b). Commission employees may well act in good faith and with reasonable care but if they perform a function that is not provided for in legislation they will have exceeded their authority and risk being the subject of civil proceedings. The rejected applicant may be able to successfully challenge the decision of the employer and successfully sue the commission and the staff of the commission for acting beyond the functions provided for in the legislation. It needs to be made clear that the commission can provide advice if those employees who may provide advice when carrying out the employment screening functions of the commission are adequately protected. Employers who rely on that advice should also be adequately protected.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [11.21 a.m.]: The Government is prepared to accept and support this amendment. The commission will have an important role in educating employers and employees about the screening system, which will involve the provision of both training and advice on how the screening system operates.
Amendment agreed to.
The Hon. R. S. L. JONES [11.22 a.m.], by leave: I move amendments Nos 4 and 5 in globo:
No. 4 Page 23, clause 38(2), lines 1 and 2. Omit ", in accordance with this part and the regulations,".
No. 5 Page 23, clause 38(2), line 5. After "employer." insert "Any such disclosure is limited to the information required by the other employer to make a decision on employment in the particular case and is subject to this Act, the regulations and the guidelines published under this Part."
The effect of these amendments is to ensure that the disclosure of information relating to criminal charges to non-approved employers for the purposes of employment screening is limited to information that is needed to make an employment decision about the preferred candidate. Clause 38(2) provides that the commission or an approved employer may transfer information about a person’s criminal record to a non-approved employer. I am concerned that there is no clear check on the type of information that may be transferred, despite the reference to relevant criminal record. Under the bill there is a potential for the disclosure of irrelevant material that may be prejudicial to the employee.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [11.25 a.m.]: The Government cannot accept these amendments. In particular, it is unnecessary to have a clause which states that the information exchanged under the employment screening system is limited to that which the legislation permits to be disclosed. The Government believes that the amendment is more likely to cause confusion than enlightenment.
The Hon. PATRICIA FORSYTHE [11.26 a.m.]: I move Opposition amendment No. 11:
No. 11 Page 23, clause 38(3)(b), lines 9 and 10. Omit all words on those lines. Insert instead:
Other honourable members do not support this amendment, which I have moved in response to concerns raised by the Law Society of New South Wales. Honourable members will recall that in debate on these bills the issue of balance between the rights of the employers on the one hand and the needs and rights of children on the other hand was raised. Quite often the evidence of children is
dismissed and ruled out in court. It is important that I put on record the concerns of the Law Society. In relation to information that is to be made available, clause 38(3)(b) of the Commission for Children and Young People Bill refers to:
(b) information relating to criminal charges that have been proven (whether or not the court proceeds to a conviction), but information as to any other criminal charges may not be disclosed under this section.
information relating to criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged.
The Law Society submits that a serious matter has arisen with respect to information that may be disclosed by the Commissioner of Police to the proposed commission, employers approved by the Minister and, subsequently, other employers covered by that section. The society stated:
It is submitted that this provision should be deleted from the bill and the following inserted in substitution:
The words of my amendment follow. The society further stated:
The provision as drafted represents a significant denial of natural justice because a majority of employers, once such matters are brought to their attention, will decline to employ people who have been associated with child-related charges, even if those charges cannot be sustained, and are withdrawn from hearing or ultimately dismissed.
The people with whom I have spoken, who have expertise in child protection, are not persuaded of that argument. The issue of natural justice needs to be kept to the fore, and the children’s commission will need to be mindful of it when it proceeds to undertake its work. The bill will allow information that has been dismissed, withdrawn or discharged to be made available. The community needs to be concerned about that, for obvious reasons. On the other hand, in many cases the evidence of children has not stood up in court because of the nature of children’s evidence. Improvements in the taking of evidence by video have made the process easier. We must keep in mind that the children’s commission in all its work needs to strike a balance between natural justice and the interests of children.
The Hon. R. S. L. JONES [11.30 a.m.]: I share the views of the Hon. Patricia Forsythe on this part of the bill. I too had planned to move an amendment deleting clause 38(3)(b). It is outrageous that people against whom charges have been laid could have information disclosed about them after those charges have been dismissed or withdrawn. A vexatious complainant could deliberately damage the reputation of the person against whom the allegation is made. I agree with the Law Society of New South Wales that clause 38(3)(b) should apply only when criminal charges have been proven, not when such charges have been dismissed, withdrawn or discharged. It is outrageous that information about people who have been wrongly accused and who are innocent may be disclosed. If the honourable member seeks a division on the amendment, I will certainly support her.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [11.31 a.m.]: The Government cannot accept the amendment. The royal commission vividly described the tenacity and duplicity of paedophiles, the repetitive and obsessive nature of their offending, the low detection and conviction rates, and the inability of the system in the past to remove paedophiles from positions in which they have direct access to children. The inclusion of criminal charges in the risk assessment process will assist in the detection of those individuals who may be unsuitable for work with children.
Many charges of child abuse do not proceed to a conviction. The difficulty children experience in giving evidence often affects the outcomes of the case. In addition, charges are sometimes dropped so that the child does not have to go through the court process. However, the Government would argue that this information is relevant to the employment screening process. The amendment would significantly water down the legislation and remove important information from the screening system.
The Hon. FRANCA ARENA [11.32 a.m.]: I support the statement of the Attorney General regarding the duplicity of paedophiles. Even though I understand the reason that the Hon. Patricia Forsythe moved the amendment - and we are all concerned about natural justice - I put it on the record that of the paedophilia cases going to court only 10 per cent of those accused are convicted and the others are either discharged or dismissed, or the child has the dates wrong. I am pleased that the Government will not support the amendment.
The CHAIRMAN: Opposition amendment No. 12 and amendment No. 6 of the Hon. R. S. L. Jones are the same. I understand that the Hon. R. S. L. Jones will move his amendment.
The Hon. R. S. L. JONES [11.33 a.m.]: I move amendment No. 6 circulated in my name:
No. 6 Page 23, clause 39(4), line 30. Insert "and consistent with the guidelines published under this Part" after "directs".
This amendment ensures that notification by employers of the names and identifying particulars of the person who is the subject of disciplinary
proceedings is made in a manner which is consistent with the ministerial guidelines. This amendment ensures that the guidelines will be used consistently.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [11.33 a.m.]: The Government does not oppose the amendment.
Amendment agreed to.
The CHAIRMAN: Greens amendment No. 16 and Opposition amendment No. 13 are the same. I understand that the Hon. I. Cohen will move Greens amendment No. 16.
The Hon. I. COHEN [11.34 a.m.]: I move Greens amendment No. 16:
No. 16 Page 24, clause 40. Insert after line 13:
This amendment ensures that individuals are to be notified if they have been rejected for a position primarily because of a risk assessment in employment screening. The amendment is consistent with the principles of natural justice. A person should know the grounds on which he or she has been rejected, particularly in relation to a risk assessment. It could be the case that an individual may not know and that individual should have an opportunity to make an appropriate response. It is even possible that an error has been made; for instance, the wrong person may be named. If a potential employee has that information, there is some possibility that the person can use the mechanism under clause 43 to respond. The essence of the Greens concern is that a number of cases have been brought to our attention involving material kept in people’s files in the absence of an avenue of redress being offered. I commend the amendment to the Committee.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [11.35 a.m.]: The Government cannot accept this amendment. Employers are currently under no obligation to notify reasons for not employing particular people. This amendment would mean a change to current employment rights, which the legislation generally has sought to avoid. If employment rights are expanded in this instance a precedent could be set for other areas. In any case, clause 35(3) provides for applicants to be notified about any information obtained about them during employment screening that may adversely affect them. The Government believes that adequately addresses the problem the honourable member contemplates in his amendment.
Amendment agreed to.
Part as amended agreed to.
The Hon. A. G. CORBETT [11.37 a.m.]: I move A Better Future for Our Children Amendment No. 6:
(4) It is the duty of an employer to notify a person whose application for child-related employment with the employer has been rejected primarily because of a risk assessment in employment screening that the person’s application has been rejected for that reason.
No. 6 Page 28, clause 53. Insert after line 26:
(4) When carrying out the review, the Minister is required:
(a) to consult with government and non-government agencies that provide or deal with services or issues affecting children, and
(b) to consult, as far as practicable, with children, utilising the means of consultation developed by the Commission under section 13, and
Clause 53 refers to review of the Act, which is to be undertaken as soon as possible after the period of five years from the date of assent. Given that the review is to be tabled within 12 months after the period of five years and that there is no explicit requirement for the Minister to consult, this amendment requires the Minister to replicate to some extent the consultation process that contributed so positively to the establishment of the commission. Given the importance of this review and the fact that the commission is to give priority to the interests and needs of vulnerable children, those agencies representing children and young people, young people themselves and other members of the public should be given an opportunity to make submissions to the review of the Act.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [11.38 a.m.]: The Government accepts this amendment. It ensures that the Minister will consult adequately in conducting the review of the Act. It is the Government’s intention that this kind of consultation would form part of any such review and hence the amendment is acceptable.
Amendment agreed to.
Part as amended agreed to.
The CHAIRMAN: The Committee will now deal with the Child Protection (Prohibited Employment) Bill.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [11.41 a.m.]: I move:
(c) to invite and consider public submissions relating to the review of the Act.
Page 4, clause 3, line 7. Insert at the end of the line:
(e) performance of work as a minister of religion or other member of a religious organisation.
The amendment will ensure that those who work for religious organisations and are not strictly paid employees, for example teaching staff who are members of a religious order, will be covered by the provisions of the bill. The amendment will ensure that convicted child sex offenders are prohibited from working with children. This will ensure equitable treatment of religious and lay employees who work side by side.
Amendment agreed to.
Clause as amended agreed to.
The CHAIRMAN: The Committee will now deal with the Ombudsman Amendment (Child Protection and Community Services) Bill.
The Hon. I. COHEN [11.46 a.m.]: I move Greens amendment No. 1:
No. 1 Page 4, schedule 1 (proposed section 25A), lines 16-22. Omit all words on those lines. Insert instead:
The bill is unclear as to whether certain categories of individuals are covered by the legislation. The Greens are concerned that workers such as cleaners who may have access to children may not be covered. This amendment ensures that the term "employee" includes any employee of the agency or individual engaged by the agency whether in connection with any work or in connection with activities of the agency that relate to children. I commend the amendment to the Committee.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [11.47 a.m.]: The Government cannot accept this amendment, which would expand the Ombudsman’s coverage under the bill considerably. The Ombudsman would have coverage of those non-paid employees engaged by the agency whose work does not involve contact with children, for example, a volunteer bus driver in a nursing home run by an area health service who was the subject of an allegation of child abuse in relation to her own child by her estranged husband. These allegations would be investigated by the Department of Community Services and police.
The Government understands that there is concern, for example, that school cleaning subcontractors be subject to external review in relation to child abuse allegations against their employees. However, the bill provides for the Ombudsman to keep under scrutiny systems for preventing child abuse. Therefore, the Ombudsman could recommend that certain clauses be included in all such contracts that require notification of child abuse allegations and notification of what the subcontractor intends to do. This would cover any concerns in that regard.
The Hon. A. G. CORBETT [11.48 a.m.]: I also believe that there are problems with the Greens amendment. Amendment of the definition of "employee" in the bill to remove explicit coverage of volunteers, even though the definition in the bill makes provision for them, is to risk the interpretation that volunteers are excluded from the jurisdiction of the Ombudsman. It may be that eventually a court will determine that "engagement" includes voluntary work, but many heads of designated agencies may not report allegations or convictions against volunteers in the absence of a strict legislative requirement or strict judicial determination.
This will result in fragmentation and uncertainty in the way in which the agencies and the Ombudsman will deal with allegations made against volunteers in the employ of designated agencies. The failure to include volunteers in such a provision could well make voluntary work much more attractive to those potential abusers seeking employment which places them in contact with children, notwithstanding the effect of the remainder of the legislative package. Such a situation hardly seems ideal.
The Hon. PATRICIA FORSYTHE [11.49 a.m.]: Because the Ombudsman must scrutinise the process I have decided not to proceed with my amendment. I am persuaded that the creation of the commission will broaden the scrutiny
and role of the Ombudsman. We will have to proceed slowly in relation to the work undertaken by the Ombudsman and the commission. We must ensure that we do not lose sight of what we want to achieve and that we do not lose the support of the community along the way. I was persuaded by the Government’s argument about the breadth of coverage of the legislation. However, our goal is to weed out of the system anyone who is a danger to children. Ultimately we want to make the system as foolproof as possible, but we do not want provisions to be so wide-ranging that we lose control.
The Hon. I. COHEN [11.51 a.m.]: I will not move Greens amendment No. 2 as circulated in my name. I move Greens amendment No. 3 as circulated in my name:
employee of an agency includes any employee of the agency or individual engaged by the agency, whether or not in connection with any work or activities of the agency that relate to children.
No. 3 Page 7, schedule 1, clause 25F. Insert after line 35:
The amendment will provide the Ombudsman with the power to recommend penalties in the event that false and malicious allegations were proved. In the case of teachers, there is a real concern that allegations may be made maliciously. Teachers have been threatened by students who say they will make allegations against them. It is appropriate that the Ombudsman, as an independent agency with oversight over the reporting and investigation processes, be the appropriate body to recommend penalties if false and malicious allegations are made. I commend Greens amendment No. 3 to the House.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [11.52 a.m.]: The Government cannot accept this amendment. We have to be cautious about imposing penalties for making allegations about child abuse. Non-reporting is a significant problem. We do not want people to be more reluctant to notify an allegation of abuse. It is fair to say that the amendment would send the wrong message to children and the community. No doubt it is a well-intentioned amendment, but any further deterrent to reporting of these matters is neither appropriate nor in the public interest.
The Hon. PATRICIA FORSYTHE [11.53 a.m.]: I am surprised by the Government’s response to this amendment. I have sympathy for the amendment moved by the honourable member. It is a matter about which the Teachers Federation has been most concerned. The problem for teachers is more the practice within the department rather than the proposed legislation. I would have thought that some safeguards would have eased the minds of many people, particularly those in the teaching profession, about the motives of some people who make allegations. However, I am not willing to go to the wire on this clause.
I fail to understand why the Government would not seek to assist employees, particularly teachers. Morale in the teaching profession is low. One only needs to talk to members of the Teachers Federation or to attend a forum such as the one attended by me, one of the advisers on the bill and the Hon. I. Cohen, to hear the concerns of ordinary teachers in schools across New South Wales about the way their practices are being undermined. To put safeguards in place would be to everyone’s benefit.
Question - That the amendment be agreed to - put.
The Committee divided.
(4) In subsection (3), appropriate action includes (without limitation) any penalty for the making of a child abuse allegation that is shown to be false and malicious.
Mr Bull Mr Lynn
Mrs Chadwick Dr Pezzutti
Dr Chesterfield-Evans Mr Ryan
Mr Cohen Mr Samios
Mrs Forsythe Mrs Sham-Ho
Mr Gallacher Mr Rowland Smith
Miss Gardiner Mr Willis
Mr Hannaford Tellers,
Mr Jones Mr Jobling
Mr Kersten Mr Moppett
Mrs Arena Rev. Nile
Dr Burgmann Mr Primrose
Ms Burnswoods Ms Saffin
Mr Corbett Mr Shaw
Mr Dyer Ms Tebbutt
Mr Egan Mr Tingle
Mr Johnson Mr Vaughan
Mr Kaldis Tellers,
Mr Kelly Mrs Isaksen
Mr Macdonald Mr Manson
Dr Goldsmith Mr Obeid
The CHAIRMAN: The vote being equal, I give my casting vote with the ayes and declare the question to have passed in the affirmative.
Amendment agreed to.
Schedule as amended agreed to.
Commission for Children and Young People Bill (No 2) reported from Committee with amendments, and Child Protection (Prohibited Employment) Bill (No 3) and Ombudsman Amendment (Child Protection and Community Services) Bill (No 3) reported with an amendment, and bills passed through remaining stages.
Pursuant to sessional orders business interrupted.
QUESTIONS WITHOUT NOTICE
GROSVENOR CENTRE INFECTION CONTROLS
The Hon. PATRICIA FORSYTHE: I ask a question without notice of the Attorney General, representing the Minister for Community Services, and Minister for Disability Services. I refer to the tragic deaths of two young people at the Grosvenor Centre and the hospitalisation of six others from the centre in the past week, and to the media release today of the Minister for Community Services. Will the Minister advise what steps the Government has taken to ensure the safety of the more than 50 residents of the centre and all the staff who work there? What expertise does the Department of Community Services have to review the infection control procedures at the centre? Why is the Department of Health not undertaking this work?
The Hon. J. W. SHAW: I acknowledge the seriousness of the question raised by the honourable member, and I undertake to refer it to the relevant Minister and obtain a response for the honourable member.
ORICA AUSTRALIA BOTANY PLANT ACCIDENT
The Hon. B. H. VAUGHAN: I ask a question without notice of the Attorney General. Bearing in mind the safety of the contractor on site was an issue when Orica Australia Pty Ltd, formerly ICI Australia, was this week fined in the Chief Industrial Magistrate’s Court, will the Minister please inform the House of the workplace accident that gave rise to the imposition of this penalty?
The Hon. J. W. SHAW: I thank the Hon. B. H. Vaughan for the question, and commend the interest he has taken not only in recent years but over a long period in workplace safety. I commend him also for the work he is doing as chairman of the relevant committee of this House looking into these types of matters and monitoring developments in the law and its practice in this area. The honourable member’s question refers to a workplace accident that occurred whilst maintenance work was being carried out at the Botany plant of the company during its annual shutdown in 1996. The case is a lesson in the safety obligations of contractors to those that they subcontract to carry out work. It is also a case of potential risk.
The Chief Industrial Magistrate, Mr Miller, on Monday handed down his judgment on the subsequent WorkCover New South Wales prosecution of the company for breaches of the Occupational Health and Safety Act. The judgment describes the maintenance shutdown as a major operation involving around 2,000 employees of the maintenance contractor, Stork ICM Australia, working on site at the defendant’s plant. Orica provided the detailed planning for the work, and its supervisors acted as safety officers.
An Orica supervisor completed a safety audit on the site just five minutes before Mr Dion Cunningham, 27 years old at the time, was crushed between an extruder machine and its seven-tonne gearbox. Mr Cunningham, who was employed as a fitter by Stork ICM Australia Pty Ltd, suffered a fractured rib, broken collarbone and external and internal bruising, which caused him to be off work for two weeks. WorkCover inspectors found that the work being carried out by Mr Cunningham on the extruder machine was part of the planned maintenance program being undertaken by Stork ICM on a contract basis.
However, the main contractor, Orica Australia, requested further unplanned work be carried out by the subcontractor on the gearbox of the extruder, including inspection of the gears. Mr Miller, Chief Industrial Magistrate, described the gearbox as being of a shape that required precautions to be taken when it was removed from the drive shaft of the extender machine to ensure its stability while it was at rest and to allow inspection of the gears. The court heard that a job safety analysis for this extra work had not been undertaken by the defendant and no safe system of work had been laid down for the subcontractor to follow.
At the time of the accident a number of Orica employees were in the vicinity. Although no Orica employee received an injury, those near the machine were at risk of injury because of the lack of safety procedures. In imposing a fine of $15,000, against a maximum penalty of $50,000, plus costs, Mr Miller took into account Orica’s good safety record and its
co-operation with WorkCover. Whilst one acknowledges the defects in the system of work for the particular enterprise, as a matter of fairness and parity one also acknowledges the company's past good record and the co-operative attitude with WorkCover since the accident occurred.
TABLING OF DOCUMENTS BY THE HONOURABLE M. R. EGAN
The Hon. J. P. HANNAFORD: My question without notice is directed to the Treasurer. In light of the High Court’s decision on the Treasurer’s attempt to thwart the authority of the New South Wales Parliament, will the Treasurer table without further delay all documents requested by the Parliament on the Government’s handling of the Sydney water crisis, the Premier’s unilateral decision to stop the $1.2 billion Lake Cowal project, details of the Sydney showground film studio deal, the closure of veterinary laboratories and the closure of regional offices by the Department of Education and Training? Will he comply with the rules established by this House for the tabling of all such documents or does he intend to put his career on the line by continuing to hide information from the Parliament?
The Hon. R. S. L. Jones: Will you defy the High Court’s decision?
The Hon. M. R. EGAN: I assure the Hon. R. S. L. Jones and the House that neither I nor the Government will defy the High Court. At this very time my officers are reading the High Court judgment. I assure the House that the Government will comply with the High Court’s decision. However, the High Court did not rule upon privileged documents. After a quick thumbing through, the judgment seems to confirm the views of the Court of Appeal that there is a category of documents known as privileged documents, which the High Court has not ruled on.
The Hon. J. P. Hannaford: You are going to thumb your nose at the Parliament as well. You thumb the judgment and then thumb the Parliament.
The Hon. J. W. Shaw: It is privileged.
The Hon. M. R. EGAN: As the Attorney General said, there seems to be an acceptance that there is a category known as privileged documents.
The Hon. J. P. Hannaford: You are going to drag the Parliament back to court. You are going to challenge the authority of the Parliament again.
The Hon. M. R. EGAN: The Leader of the Opposition says that I am going to drag the Parliament back to the court. I refer the House to a letter that I sent to the Leader of the Opposition and all the crossbenchers in 1995. In that letter I said that the way to handle the dispute was by the House developing a mechanism for the valid tabling of documents. In response, the Leader of the Opposition said that it is a matter for the court.
The Government took the matter to the courts because the Leader of the Opposition and the crossbenchers were not prepared to develop with the Government a mechanism for the valid tabling of documents. When I proposed that course, the Leader of the Opposition wrote to me on 9 November and said, "We are not interested in working out an effective mechanism for the valid tabling of documents. Take the matter to the court." The matter went to the court because the Leader of the Opposition asked the Government to take it there. It is simple as that.
The Hon. J. P. Hannaford: That is not true. That is rubbish and you know it. You cannot tell the truth until it is stuffed up your nose.
The Hon. M. R. EGAN: Now hypocritically the Leader of the Opposition pretends that it was a decision that the Government made and not a decision forced on the Government by a reckless Opposition.
The Hon. J. P. Hannaford: Not only are you arrogant, you are deceitful. You are the most arrogant and deceitful Minister this Parliament has ever seen.
The Hon. M. R. EGAN: The Leader of the Opposition has driven the school students from the gallery. They will not put up with this disgraceful display of behaviour from the Leader of the Opposition.
The Hon. Dr B. P. V. Pezzutti: Point of order: The Treasurer is reflecting upon a decision of the House in a matter that has now been decided by the High Court. I ask that he be asked to desist from reflecting on a decision of the House.
The PRESIDENT: Order! There is no point of order. The Treasurer was reflecting upon a decision of the Leader of the Opposition.
The Hon. M. R. EGAN: On 9 November the Leader of the Opposition said:
There is only one avenue open to the Government if it wishes to maintain its view that the Parliament has now power, either inherent or pursuant to Standing Order 18, and that is to seek a determination by the Supreme Court.
The offer I made to the crossbenchers and the Opposition was for the House to determine a mechanism for the tabling of documents by this Government. The offer was rejected by the Leader of the Opposition. I assure the House that the Government will be tabling any document relating to valid calls by the House that are not covered by privilege. The tabling of those documents will take a day or two.
SYDNEY CENTRAL BUSINESS DISTRICT RETAIL DEVELOPMENT
The Hon. Dr MEREDITH BURGMANN: My question is to the Treasurer, Minister for State Development, and Vice-President of the Executive Council. Will the Treasurer give details on the latest retail development in the Sydney central business district?
The Hon. R. T. M. Bull: You are going shopping, are you?
The Hon. M. R. EGAN: Members of the public in the gallery must be horrified by the childish behaviour of Opposition members. Their behaviour is a very poor reflection on the Liberal Party and National Party. It is the sort of behaviour that the father of the Deputy Leader of the Opposition, the distinguished Senator Bull, would never have entertained. Obviously the Deputy Leader of the Opposition is an ill-educated, ill-mannered, boisterous man who should not be a member of any civilised legislative chamber. The Opposition members are a disgrace to the people who educated and raised them.
The Hon. C. J. S. Lynn will not be back here next year because he is one of 30 members -
The Hon. M. J. Gallacher: Twenty-nine.
The Hon. M. R. EGAN: He is one of 29 members trying to get Liberal Party selection in the upper House for the next election. The first thing the coalition has to sort out is whether to have two, three or four National Party members.
The Hon. D. F. Moppett: Four.
The Hon. M. R. EGAN: The Hon. D. F. Moppett says there will be four National Party members. I ask the Hon. J. F. Ryan how many National Party members will be on the coalition ticket. There will not be any room for the Hon. C. J. S. Lynn. The Hon. C. J. S. Lynn must have been sold the biggest pup of any member of any Parliament in Australia. Point of order -
The Hon. R. T. M. Bull: If you can’t stand the heat, get out of the kitchen.
The Hon. M. R. EGAN: What a childish interjection! The behaviour of members opposite today does them no credit, it does the House no credit and it must be creating a terrible impression for members of the public, including those in the gallery. I ask you to bring these louts to order.
The Hon. D. F. Moppett: This is how the Government evades questions.
The PRESIDENT: Order! I wish to hear the point of order even if some members do not.
The Hon. M. R. EGAN: My point of order is that members opposite are breaching all the standing orders by behaving in a disorderly way. These louts are interfering with the proper processes of the Parliament and they should be brought to order.
The PRESIDENT: Order! There is no point of order but I ask the Minister not to provoke the Opposition.
The Hon. M. R. EGAN: Never in a million years would I attempt to be provocative. I stand here only to uphold the truth and to advance the interests of this State and this nation. I was pointing out that the Hon. C. J. S. Lynn will be lucky if he is back here next year. The National Party will have four winnable spots on the coalition ticket next year. That means that the Liberal Party will have only two successful candidates on the ticket - and the Hon. C. J. S. Lynn will not be one of them. The honourable member was sold the biggest pup of anyone I know in any Parliament in Australia. Although he had been preselected for the seat currently held by Mr John Fahey in the Federal Parliament, he was told, "Stand aside. Let John Fahey take your place and we will ensure that you have a long career in the New South Wales upper House."
The honourable member has been in this House only a few months and the Liberal Party is about to dump him because the right wing does not have the numbers. I assure the House that while members opposite engage in cheap politicking the Government is getting on with the job of attracting business and investment to New South Wales. Tonight the Premier, Mr Bob Carr, will officially open the new $350 million Sydney Central Plaza in Pitt Street. The plaza - the Hon. Dr Meredith
Burgmann probably knows this as she is a keen shopper - is on the site of the old Grace Bros complex. This new development will create 800 new jobs and secure a further 1,200 new jobs.
In other words, 2,000 new jobs will be created in a State which already has the lowest unemployment rate in the nation, thanks to good economic and financial management. The New South Wales unemployment rate of 6.7 per cent is well below that of other States and well below the national average of 7.7 per cent. Members opposite shout and scream because they are not interested in jobs or employing people, and they are not interested in the fact that New South Wales has managed to achieve the lowest unemployment rate in Australia. Sydney Central Plaza is one of the largest non-government or Olympic-related projects constructed in New South Wales this year and is part of the enormous amount of construction that has taken place in New South Wales in the past year.
Members opposite are making it impossible for members on this side, Hansard and the people in the gallery to hear. The Deputy Leader of the Opposition is making it impossible to hear, because he was poorly raised and poorly educated, and he is behaving like a lout. He should sit back in his chair and behave himself. His father, Senator Bull, would be ashamed of him.
The Hon. R. T. M. Bull: Point of order: Question time has become a complete farce. The Minister’s answer must have some relevance to the question. Only three questions have been asked in the past 25 minutes, and most honourable members have suffered hearing loss because the Minister continues to yell into the microphone. I am sure the Minister for Industrial Relations would have a serious issue to raise with the WorkCover Authority in terms of what honourable members must cope with when the Treasurer is in full flight.
The PRESIDENT: Order! What is the point of order?
The Hon. R. T. M. Bull: Madam President, I am speaking to my point of order. Surely you are not raising the question of relevance with me when the House has heard nothing from the Treasurer in the past 25 minutes that is relevant to the question. Frankly, if question time is to have some relevance to members of Parliament the Minister must be brought to order.
The PRESIDENT: Order! There is no point of order. As I and my predecessors have often ruled, Ministers may answers questions as they choose. However, the Treasurer has spent some time on preliminary background remarks and I ask him to turn to the substance of his response.
The Hon. M. R. EGAN: Indeed, I have already done so. I was pointing out that Sydney Central Plaza is one of the largest non-government or Olympic-related projects constructed in New South Wales this year and is part of the enormous construction that has taken place in New South Wales during the past year. Figures released by the Australian Bureau of Statistics at the end of the last month show that building construction in New South Wales has reached an all-time high. In the past financial year the value of total building in New South Wales was more than $12 billion. For the benefit of the Hon. Dr B. P. V. Pezzutti, that is $12,000 million. That compares to a little more than $10 billion in 1996-97 and $9.8 billion in 1995-96. That is a huge increase in building construction in New South Wales which translates directly into jobs and is part of the explanation for New South Wales now enjoying the lowest unemployment rate of any State in Australia.
New business building in 1997-98 - when I say "new building business" I am talking about shops, factories, offices and all sorts of other business premises - was valued at some $5.2 billion, which is $1.3 billion more than the previous year. Residential building was valued at $5.2 billion, compared with only $3.9 billion in 1995-96. Those figures confirm the strength of both residential and business building in New South Wales and of the New South Wales economy. It is because those figures confirm the facts that members opposite have done their utmost to ensure that my answer could not be heard. Frankly, the figures are a slap in the face to members opposite, who talk down the economic prospects of this State and of this great nation for their own political ends.
The new Central Plaza generated 1,000 jobs in its construction period, and with plans for the construction of a Raffles hotel and apartments above it, many more jobs will follow in the construction, hospitality and retail sectors. In addition to construction jobs, there will be another 1,000 retail jobs in Grace Bros and 1,000 retail jobs in the 80 specialty stores within the plaza. These jobs are in addition to the announcement in October of 4,000 new jobs at the Olympic stadium. As honourable members are aware, the stadium is currently hiring and training 3,000 people for catering positions and a further 1,000 are being trained in customer service.
The retail industry is one of the largest employers in New South Wales. The latest figures
reveal that in August the number of people working in retail trade industries increased by more than 4,600. This represents an increase of more than 9 per cent in the past year. It should come as no surprise to honourable members that the new jobs are not only in retail but across the board. As I mentioned only recently, the State’s AAA credit rating has just been reaffirmed in glowing terms by Moody’s, and last month’s excellent labour force figures demonstrate that New South Wales has the lowest unemployment rate in the nation. Central Plaza consolidates Sydney’s position as a major shopping, social and cultural precinct in the Asia-Pacific region.
EGAN v CHADWICK, EVANS and CAHILL
The Hon. M. F. WILLIS: My question without notice is addressed to the Leader of the Government, Treasurer, and Vice-President of the Executive Council. In view of the massive endorsement handed down today by the High Court of Australia of the powers and privileges of this House in Egan v Willis and Cahill, will the Treasurer indicate whether he is prepared to discontinue proceedings he has instituted in the Supreme Court of New South Wales against you, Madam President, the Clerk of the Parliaments, Mr Evans, and the Usher of the Black Rod, Mr Cahill?
The Hon. M. R. EGAN: Madam President, I have bad news for you. I will not discontinue the proceedings.
The Hon. Dr B. P. V. Pezzutti: Why?
The Hon. M. R. EGAN: Because neither the High Court nor the New South Wales Court of Appeal has dealt with the question of privileged documents.
The Hon. Dr B. P. V. Pezzutti: A waste of money!
The Hon. M. R. EGAN: The Hon. Dr B. P. V. Pezzutti says it is a waste of money. I am inclined to agree with that comment because this House had the opportunity to develop a mechanism for the valid tabling of documents but refused to do so. It thumbed its nose at the Government’s offer and the Opposition said, "Take the matter to the court."
TRANSGENDER PRISONER SUICIDES
The Hon. Dr A. CHESTERFIELD-EVANS: I direct my question to the Attorney General. Is the Attorney General aware that after being raped several times a transgender inmate hung herself in the Metropolitan Reception and Remand Centre at Silverwater on 27 December 1997? What changes in procedures have been instituted to protect those who often experience a bad time if they are placed in prisons with inmates of the gender recorded on their birth certificates, rather than the gender to which they have assigned themselves?
The Hon. J. W. SHAW: The honourable member raises a tragic and difficult issue. I have every sympathy with people of the transgender community who are placed in New South Wales prisons. In some ways, this is a phenomenon that is not always easy for some of us to understand, but over the years I have met with leaders of the transgender community and I understand the particular and pressing problems that community faces in this society. It is not within my area of responsibility to deal with the rule of the prison system or within the Department of Corrective Services. However, I shall take up the honourable member’s question and suggestions and liaise with my colleague Mr Bob Debus about the matters raised.
FINANCIAL COUNSELLING GRANTS
The Hon. J. KALDIS: My question is directed to the Minister for Fair Trading. Will the Minister inform the House about recent assistance given to New South Wales residents who experience financial problems?
The Hon. J. W. SHAW: The honourable member’s question concerns counselling for people in financial difficulties. I am pleased to announce that the Government recently made available more than $1.3 million for financial counselling in New South Wales for 1998-99. This includes $840,000 in credit counselling grants and $476,645 from the Financial Counselling Trust Fund. Funding for 1998-99 will be provided to 40 community counselling organisations, of which 18 are in rural and regional New South Wales and 22 are in Sydney.
Significant rural grants include $57,500 to Lismore and District Financial Counselling Service, $30,500 to Kempsey Financial Counselling Service, $24,000 to St David’s Care in Albury and $25,500 to Forster Neighbourhood Centre. In the city $35,150 went to the Christian Community Aid Service in Ryde-Eastwood, $24,000 to the Sydney City Mission in Campbelltown and $51,500 to the Creditline Financial Counselling Service in Fairfield. The largest grant of $292,500 was to the Creditline Financial Counselling Service in the Haymarket.
Other communities that benefited include Coffs Harbour, Grafton, Narellan, Port Macquarie, Hamilton, Eden, Bankstown, Quakers Hill, San Remo, Brookvale, Mount Druitt and Queanbeyan.
All honourable members will support the provision of these grants, which assist some of the most needy people in our community. Credit counselling grants come from consolidated revenue and from the Department of Fair Trading’s retained earnings. This program provides funds to community organisations that provide accredited financial counselling services, consumer legal casework and education in managing personal finances. The Financial Counselling Trust Fund is funded from a trust started with fines imposed on financial institutions that failed to meet their legal obligations to consumers under the Credit Act. Only the interest from this fund, which stands at $9.9 million, is used for grants.
The Financial Counselling Trust Fund assists community-based non-profit organisations that provide financial advice, train people to give financial advice or educate the community in personal finance matters. Of course people with financial problems can be placed under great pressure. If someone believes there is no solution to the problems, he or she may feel there is little to lose and antisocial or self-destructive behaviour can occur. Tragedy can result in these circumstances. However, advice on personal finances provided by expert community organisations can give an individual hope that he or she can work through their problems.
Through over-the-phone and face-to-face counselling people can get help in dealing with their creditors and rearranging loan repayments. An expert counsellor can prevent someone being declared bankrupt, with all the disadvantages that entails. People can protect their credit ratings if they are able to work through their financial problems. On the other side of the coin, my department also investigates and prosecutes unscrupulous or bogus credit providers, who prey on people in financial difficulty. Often the poorest sections of the community are targeted by these predatory people.
I have informed all the successful grant recipients about their funding for 1998-99. I commend them on their good work. This Government gives high priority to helping the citizens of New South Wales in their financial difficulties. I am pleased that my department can provide help to those who for one reason or another need temporary assistance and advice to get back on their feet.
The Hon. R. T. M. BULL: My question is addressed to the Minister for Public Works and Services, representing the Minister for Gaming and Racing, and Minister Assisting the Premier on Hunter Development. Is the Minister aware of the comments yesterday of the Minister for Gaming and Racing in another place that "the Government has addressed many issues during its term of office" in regard to problem gambling and that three specific strategies have been developed to deal with the issue? How do these comments sit with the comments of Marea Donnelly’s in the Sydney Morning Herald of 18 November that "any suggestion that New South Wales offers a strategy to deal with problem gamblers is misleading to the point of blatant dishonesty"? When is the Carr Government going to get serious about problem gambling and offer something other than rhetoric?
The Hon. R. D. DYER: The question raises an important issue of public policy, namely, problem gambling. I note, however, the question was couched in an uncharacteristically argumentative form on this occasion. Notwithstanding that, I will refer the question to my colleague the Minister for Gaming and Racing and as soon as I have the benefit of his response I will convey the answer to the Deputy Leader of the Opposition.
The Hon. R. S. L. JONES: I ask the Attorney General, representing the Minister for the Environment, how many section 121 licences to kill flying foxes have been issued this week and how many have been refused. How will those issued with licences be able to differentiate between endangered black flying foxes and other flying foxes? Will there be a training program for fruit-growers? Is it not inevitable that endangered flying foxes will be shot? Will the Minister take legal responsibility for any black flying foxes shot in violation of the Act?
The Hon. J. W. SHAW: I thank the honourable member for his assiduous interest in the wellbeing of flying foxes. I regret that I do not have the information available at hand. I will certainly refer the question to the Minister for the Environment and obtain a response for the honourable member.
STATE FISH EMBLEM EASTERN BLUE GROPER
The Hon. A. B. KELLY: My question is directed to the Minister for Public Works and Services, representing the Minister for Fisheries.
Will the Minister advise the House whether New South Wales includes fish amongst its recognised State emblems?
The Hon. R. D. DYER: The Hon. A. B. Kelly has an undoubted and extensive interest in marine matters, particularly relating to fish. It is very timely to talk about the recognition of fish as State emblems in this the International Year of the Oceans. The recognition of fish as an integral part of the environment has never been greater than under this Government. Sound policies to promote the conservation of fish species and the sustainability of the fisheries resource are some of the many hallmarks of this environmentally-aware Government.
It is therefore with great pleasure that I advise the House that the Government has achieved yet another first for New South Wales. The eastern blue groper will be declared the State fish emblem, a first for any State or Territory in Australia. The eastern blue groper joins a select band of flora and fauna chosen as emblems in New South Wales: the platypus, the kookaburra and the waratah. While other States and Territories have animals, birds and flora as emblems, none of them has a fish. The eastern blue groper is an excellent choice for a State emblem. Its distinctive blue colour matches the State’s colour.
The Opposition should listen to what I am about to say. The blue groper is friendly, inquisitive and responds well to human contact. That sounds a little to me like the Hon. D. J. Gay. The Hon. D. J. Gay is probably more intelligent than the blue groper, although not as intelligent as the Hon. Jennifer Gardiner, as my colleague the Treasurer has often pointed out. The eastern blue groper clearly believes a day away from New South Wales is a day wasted because it does not extend far into Queensland or Victoria. It lives in estuaries, around rocky reefs -
The Hon. M. R. Kersten: Point of order: The Minister’s answer is obviously a bizarre practical joke and a waste of the time of this House. I ask that he be directed to wind it up quickly for the sake of order.
The PRESIDENT: Order! Ministers may answer questions as they choose. There is no point of order.
The Hon. R. D. DYER: The answer is not actually intended to be humorous. There is a serious side to this matter and in any event I would have thought the atmosphere in the House could well do with a little lightening. The blue groper lives in estuaries, around rocky reefs and from the intertidal zone down to 50 metres in depth. It has strong crunching jaws and eats a variety of invertebrates, such as sea urchins, crabs, mussels and other molluscs. It manoeuvres slowly using its efficient pectoral fins.
The House may be not be aware, and I am glad Reverend the Hon. F. J. Nile is not present in the Chamber to hear me say this, that the blue groper changes sex as it grows, turning male at about 60 centimetres in length. It is an attractive fish with a large tail, thick body and peg-like teeth. The declaration of the blue groper as a State emblem has received strong support from anglers, divers and snorklers throughout New South Wales. The fish is particularly popular with recreational divers given its inquisitive and friendly nature. However -
The Hon. Dr B. P. V. Pezzutti: Point of order: This is the second occasion this week that the Minister has delayed question time in this House by making a ministerial statement on an issue about which he has no knowledge. It is a plug for the aggrandisement of a small part of his department. The Minister should be asked to table the document or conclude his remarks.
The Hon. R. D. DYER: To the point of order: I would respectfully point out to the House that, contrary to the mistaken belief of the Hon. Dr B. P. V. Pezzutti, the question was asked of me in my capacity as representing the Minister for Fisheries and I am seeking to convey some genuine factual information to the House.
The PRESIDENT: Order! There is no point of order.
The Hon. R. D. DYER: I point out to the House that the numbers of blue groper have not always been plentiful. The eastern blue groper went through a tough time in the 1970s due to overfishing. After a succession of protective measures groper were finally banned from sale in 1980. There is a bag limit of two fish for recreational anglers and a total ban on spearfishing. As a result of this protection blue groper are now a common sight on most rocky reefs in New South Wales. It is entirely appropriate that a species whose survival was once in doubt has become a symbol of the marine conservation ideal. The Government has an enviable record in the protection of the aquatic habitat and conservation of fish. We believe it is so important that we set up a specific Office of Conservation within New South Wales Fisheries.
I refer the House to the comprehensive policy and associated guidelines on this issue launched by the Government in May this year. They detail the measures the Government has taken to protect the great white shark and the grey nurse shark - the Hon. Dr B. P. V. Pezzutti may be familiar with those as a result of his diving activities on the far north coast - and how we are developing management plans to rebuild the populations of native fish such as the eastern freshwater cod, the trout cod and silver and golden perch.
The management plans will specify the rules for development in areas where fish and fish habitat need to be protected. The blue groper emblem will be used to promote an awareness of the need to conserve fish and our aquatic biodiversity, and will form part of our ecotourism campaigns within Australia. The Government hopes that, in time, the eastern blue groper will become as recognisable to the community as the State’s floral emblem, the waratah.
BYRON SHIRE COUNCIL INQUIRY
The Hon. D. J. GAY: I direct my question to the Attorney General, representing the Minister for Local Government. Given that copies of the highly confidential report of the financial oversight panel into Byron Shire Council’s financial situation are allegedly being handed out by one Byron councillor, that is, councillor FastBuck$ - honourable members may laugh, because this fellow is a joke - when will the report be made public by the Minister for Local Government? What action will the Minister for Local Government take to sort out the financial crisis at Byron Shire Council?
The Hon. J. W. SHAW: I shall refer the question to the Minister for Local Government and obtain a response.
ALBURY-WODONGA NATIONAL HIGHWAY PROJECT
The Hon. I. COHEN: I ask the Treasurer, Minister for State Development, and Vice-President of the Executive Council, representing the Minister for Transport, a question without notice. Given that a recent poll indicates that 75 per cent of residents oppose the internal route for the Albury-Wodonga National Highway project, is the Minister aware
that nearly 3,000 semitrailers pass through Albury on weeknights, with numbers expected to increase dramatically with the completion of this link and the rerouting from the western link? Is the Minister further aware that the environmental impact statement considers only the road user without considering disturbance in residential areas or increased pollution? Will the Minister investigate the failure of the Roads and Traffic Authority to attribute a value to this damage? Will the Minister reinvestigate the option of an external route, as is consistent with Australian Labor Party policy?
The Hon. M. R. EGAN: My recollection of the matter - and I could well be wrong - is that Commonwealth funding for the project is based on it going through the town of Albury. I have some sympathy with the issues the honourable member has raised and I will take it up with my colleague, the Minister for Roads.
HUNTER REGION ELECTRONIC COMMERCE
The Hon P. T. PRIMROSE: My question without notice is to the Treasurer, and Minister for State Development. Will the Minister please inform the House what the Government has done to inform small business in the Hunter region about electronic commerce?
The Hon. M. R. EGAN: The Hon. P. T. Primrose has asked a good question, because connection to electronic commerce will be a vital matter for the survival, success and expansion of small business, not only in New South Wales but all round the world. In future, anyone not on line could well be out of business. By doing business electronically, regional businesses in New South Wales can expand their existing markets and open up new ones. That is why the State Government is helping small businesses, in the regions and in Sydney, to benefit from the explosion in electronic commerce and the development of online technology.
The New South Wales Government’s new high growth business program includes a series of forums on electronic commerce. Two forums have been held to date - one in Sydney, and an extremely successful meeting in Maitland that was attended by more than 80 leaders of some of the Hunter’s fastest growing businesses. The Maitland forum included presentations by representatives from Telstra and IBM, case studies of two Hunter businesses that have successfully implemented an electronic commerce strategy, and a session explaining the legal and security issues involved.
Australians are taking up shopping and doing business on line at a spectacular rate. I must admit I am not one of them but I am coming to the conclusion that unless I master the technology in a very short time it will be almost impossible to
survive in the world in which we will be living. In the past 18 months trading by Australians through the Internet has trebled, with some $55 million worth of goods bought and sold during that time. This electronic trade is steadily increasing. The best part about e-commerce is that most companies already have the technology to get on line - a computer and a telephone line.
In places like Maitland access to electronic commerce will make local companies internationally competitive. That is why the Government is determined to assist small businesses across New South Wales implement online business strategies. As I indicated, the Maitland forum was part of the New South Wales Government’s new high-growth business program. The high-growth business program will accelerate the development of about 500 of the State’s fastest growing metropolitan and regional companies. This program partially replaces the highly successful AusIndustry program that was axed by the current Federal coalition Government. Given the great success of the Maitland e-commerce forum, more forums for small business are being planned for regional centres throughout New South Wales.
ELECTORATE OF PEATS
The Hon. M. J. GALLACHER: My question without notice is to the Attorney General, representing the Minister for Transport. Now that it has been publicly confirmed by the honourable member for Peats, Marie Andrews, that the Attorney will not be a candidate for preselection for the seat of Peats at the next State election, will the Attorney explain to the House why the honourable member for The Entrance officiated at the announcement of the plan by Fast Ships Pty Ltd to establish a fast ferry service between Ettalong and Sydney? Why was the honourable member for Peats excluded entirely from the announcement? Is the honourable member for The Entrance still terribly confused over the new boundaries for his electorate?
The Hon. M. R. EGAN: The question was asked of the Attorney General in his capacity as Minister representing the Minister for Transport. Let me assure the Hon. M. J. Gallacher that the Attorney General does not represent the Minister for Transport in this House. I do that, and I do it in a most expert way. It is surprising that the Hon. M. J. Gallacher, who has been here for a long time, does not know what every other member of this House knows - that I represent the Minister for Transport in this House. Let me assure the Hon. M. J. Gallacher that Marie Andrews will be a member of the Legislative Assembly for a long time to come, for many parliaments beyond this one. That is an achievement that the Hon. M. J. Gallacher will never be able to emulate. The Hon. M. J. Gallacher was put here to help him win a central coast seat in the lower House - he nods in agreement.
The honourable member should learn that nodding expresses agreement and shaking one’s head displays disagreement. It is a fundamental thing one learns in kindergarten. The Hon. M. J. Gallacher has become aware, to his disappointment and chagrin, that there will never be an opportunity for him to win a lower House seat on the central coast. The only possible prospect he might have had was to knock off the Hon. Chris Hartcher for preselection. The Hon. Chris Hartcher sat in the gallery the other night and dictated to these people that they should be trying to emasculate the Government’s attempt to give justice to people suffering from all sorts of respiratory and lung diseases caused by asbestos. I do not believe the Hon. M. J. Gallacher could win Liberal Party preselection or, for that matter, the electorate of Gosford. I will refer the substance of the honourable member’s question to my colleague the Minister for Transport who, I am sure, will give a detailed response to it.
SYDNEY FERRIES POLLUTION
The Hon. Dr A. CHESTERFIELD-EVANS: My question without notice is directed to the Treasurer, representing the Minister for Transport. Given that diesel fumes are carcinogenic and are responsible for a large amount of pollution and that Sydney’s ferries are diesel powered and no longer have funnels to discharge their exhausts near water levels in the wharf area around Circular Quay, have any studies been done of the levels of diesel carcinogens in a range of atmospheric conditions and of ferry types in areas around the wharfs? If not, why not? If studies have been undertaken, where are the results of those studies? To what levels of diesel carcinogens are ferry commuters exposed? What is the maximum exposure and what is the total annual dose? What is being done about these fumes? For example, what is being done in relation to engine maintenance, turning ferries on and off, the type of fuel used and the designs of future ferries?
The Hon. M. R. EGAN: I cannot understand how the Hon. Dr A. Chesterfield-Evans would expect me to know the answer to a question like that. The question would, therefore, more appropriately have been asked as a question on notice. Nevertheless, I will refer the honourable
member’s question to my colleague the Minister for Transport, who I am sure will obtain a detailed and considered response. I point out, however, that it is all very well to go around the world scaring people. As I understand it, virtually everything is carcinogenic to some degree or in some way or another. I once read an article in the Sunday papers which stated that potatoes were carcinogenic. The honourable member nods his head in agreement: Everything is carcinogenic to some extent. Let us not try to frighten people. I will certainly refer the honourable member’s question to my colleague the Minister for Transport.
If honourable members have further questions I suggest they place them on notice.
SENIOR CITIZEN TRAVEL CONCESSIONS
The Hon. M. R. EGAN: On 15 October the Hon. D. F. Moppett asked me a question without notice regarding senior citizen travel concessions. The Minister for Transport, and Minister for Roads has provided the following response to the honourable member’s question:
There is nothing further to add to that which was included in the letter from the Parliamentary Secretary for Transport of 25 August 1998 replying to the Hon. D. F. Moppett, MLC, and Councillor Ray Donald, the Major of Bogan Shire Council.
WENTWORTH AND BALRANALD HOSPITALS ADMINISTRATION
The Hon. R. D. DYER: On 15 October the Hon. M. R. Kersten asked me a question without notice concerning Wentworth and Balranald hospitals administration. The Minister for Health has supplied the following response:
The Far West Area Health Service signed a regional agreement with the Far West Ward Aboriginal Health Service to provide a regional management service to the lower western sector, which includes the shires of Wentworth and Balranald. Management services are provided through the employment of a general manager who has regional responsibilities.
Staff of the local health services remain employees of the Far West Area Health Service. Administration and management of both Wentworth and Balranald health services continue to be the responsibility of the individual health service managers of each facility. These managers are also employees of the Far West Area Health Service. As local management arrangements are not altered, individual community consultation is not required.
There are benefits to both organisations under this arrangement which arise from increased co-ordination between Aboriginal and mainstream health programs, the sharing of administrative overheads and improvements to the quality and appropriateness of mainstream health services to Aboriginal people in the far west of New South Wales. The agreement was endorsed by the Far West Area Health Service Board, which comprises representation from across the region.
On the matter of housing for Aboriginal people, I am advised that the project to fund the building of houses also funds developing an apprenticeship program, road works, street lighting facilities, and water supply and sewerage infrastructure. I am also advised that work on 12 houses has commenced, with two almost being completed.
Questions without notice concluded.
[The President left the chair at 1.03 p.m. The House resumed at 2.30 p.m.]
TEACHING STANDARDS BILL
Bill received and read a first time.
Suspension of standing orders agreed to.
RESIDENTIAL PARKS BILL
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [2.36 p.m.]: I move:
That this bill be now read a second time.
This bill reflects a process of consultation. It reflects a government taking on board the concerns and needs of residents of residential parks, people who are living permanently in caravans or in what are variously called mobile homes or constructed homes. The Government has taken on board those concerns. The Government believes that those residents need special and different treatment from that which the law generally accords tenants and it believes that residents of those parks who live in mobile homes and/or caravan parks need enhanced rights, and that is what this bill delivers. The bill gives greater rights in relation to rent and a variety of other matters to residents in parks. I have visited one of the parks and I have come to understand the amenities that residents - often retired - have in the parks.
Residents of the parks are mostly people who are on fixed incomes, whether their income be from superannuation or from other fixed benefit, and they need greater protection against rent increases than they have under the law at present. The Government has heard the concerns of residents and has responded to them. This bill is the fulfilment of that process. Amendments foreshadowed by the coalition would essentially denude this bill of any meaning. For example, they would remove the enhanced protection in relation to rent increases. If the amendments were to be accepted the bill would not be worth proceeding with because its substance would be negated. The conservative parties propose
amendments that negate the thrust and essence of the bill, which is designed to give greater protection to the rights of persons who live in residential parks, either permanently in caravans or in mobile homes.
I have come to understand the unequal bargaining power of residents of mobile homes. Those people are usually, but not always, retirees. They buy into a mobile home, often at a cost of approximately $100,000 - they have a significant investment in the mobile home. Residents do not own the land on which their home is located, they pay rent to the park owner. They are therefore subject to the prospect of rental increases, sometimes excessive rental increases. One might think that an option for those people would be to move to another park. After all, their residence is called a mobile home. In fact, it costs something like $15,000 to dismantle a mobile home and have it moved, relocated and reassembled.
For people on fixed incomes, retirees, that is difficult to deal with, and it can lead to oppression. So the Government has moved to enhance the rights of residents. I am disappointed that the Opposition is not supporting the Government in this venture. There can be no suggestion that this is a bill constructed without consultation. Officers of my department have met the park owners. I have met them on a number of occasions. We have heard their views and taken them into account. We have made modifications to the bill in deference to their views. But at the end of the day we have achieved a balanced package. At the risk of repetition may I say that it is disappointing that the Opposition is not prepared to back the residents on this matter. The bill ought to be supported by the House. I seek leave to have the remainder of my second reading speech incorporated into Hansard.
This bill represents the most significant legislative initiative concerning the caravan park and manufactured home estate lifestyle since permanent park residents were first given full tenancy status in 1989. The bill constitutes further recognition of the unique nature of park and estate tenancies. These are tenancies where the majority of residents live in their own dwellings but rent the site on which their home is located. This is a far different situation to conventional tenancies where the dwelling forms part of the land and belongs to the landlord.
There are over 940 caravan parks and manufactured home estates in New South Wales with 25,000 sites for permanent tenancies. There are more than 50,000 residents currently residing in parks and estates as their permanent home. Many of today’s caravan parks now have modern manufactured or relocatable homes occupying park sites. In the last 10 years there has been a significant increase in the number of long-term sites being provided in parks. There has been an increase of 21 per cent in approved long-term sites in New South Wales over the last 10 years compared with an increase of just 1 per cent in tourist sites.
Park living has proven to be an attractive lifestyle for many New South Wales residents and offers a secure and friendly community, situated in some of the State’s most desirable coastal and inland locations. The bill aims to support this lifestyle and to assist in confirming it as a viable housing option for potential and existing residents. The bill is also directed to giving industry a solid foundation for future investment and expansion. It is important that the park owner and resident relationship be supported by a fair and workable legislative framework.
People have been choosing to live in caravan parks and manufactured home estates since the 1950s, although it was not until 1986 that such arrangements gained legal recognition under the local government laws. When the Residential Tenancies Act commenced in 1989, permanent residents of caravan parks and manufactured home estates were included in its coverage. While there were a number of provisions in the Act, regulations and code of practice which dealt specifically with park and estate tenancies, residents have, in the main, been under the same legislative umbrella as conventional tenants.
It has become increasingly obvious that there are so many differences between tenancies in parks and estates and other types of residential tenancies that separate legislative provisions are necessary. This bill has provisions specifically tailored to the needs of park and estate communities under a stand-alone bill, for the first time. The bill had its genesis in a detailed review and report into park and estate residents’ concerns which was carried out by the Tenancy Commissioner in 1997.
Consultation is the foundation of this bill. A working party was established in June last year to assist in carrying out the review. The park industry and residents were represented. The departments of local government, land and water conservation and urban affairs and planning were also represented on the working party. Each of these departments has an ongoing interest in park and estate accommodation. The working party was chaired by the Department of Fair Trading.
An issues paper was prepared and released to the public in September 1997. Over 2,000 copies of the issues paper were distributed. The issues paper not only dealt with residents’ concerns but also included matters of particular interest to the industry. Written submissions were sought and over 100 were subsequently received. Public discussion forums were held at Wyong, Nowra and Coffs Harbour and were attended by over 200 residents, park owners and managers.
The Tenancy Commissioner’s report was drafted after detailed consultation with all key stakeholders. Following the report’s release and the development of the bill, further opportunities have been provided for constructive input from both resident and industry interests. The views of the industry have been given close consideration during the final drafting of this bill. I and my staff, and the Department of Fair Trading, have had several meetings with industry representatives during August, September and October.
Let me now turn to the details of the bill. The title of this bill is extremely significant. This title recognises the fact that the nature of accommodation now used for park living has to a large extent moved beyond old-fashioned caravan type dwellings. To some residents "caravan park" has had negative
connotations as it commonly implies a temporary holiday style of living which is a far cry from that involved with the sophisticated homes occupying sites in parks in the 1990s. "Residential park" is to be the new name, for the purposes of the tenancy laws. It is essential that the profile of this important segment of the accommodation market be given due recognition.
During the consultation which was undertaken by the Tenancy Commissioner during the course of his review, it became clear that the single issue causing greatest concern to residents is rents and the way in which disputes about rent increases are dealt with by the residential tenancies tribunal. A high proportion of park residents are older people on fixed incomes. Forty per cent of residents are 60 years or older and approximately 80 per cent are not in paid employment. Rent levels can have a marked effect on their quality of life. It can also be an expensive undertaking for a park resident to move their home from a site if they have to leave because they can no longer afford the site rent. This is one of those obvious areas in which the circumstances are completely different from conventional tenancies. While a tenant of a house or flat who has to move has an element of genuine inconvenience in having to pack belongings and find alternative accommodation, the situation is greatly magnified for a park resident who has to not only move personal belongings but also move the very home in which they live. The transport costs alone can cost more than $15,000. Residents feel that they are particularly vulnerable to rent increases and, if they are unable to afford the site on which their home is located, they have very few options for alternative accommodation like tenants of conventional tenancies.
The new excessive rent provisions simply provide additional criteria for the Residential Tenancies Tribunal to take into account when ruling on excessive rent applications by residents. No longer will the market level of rent for comparable premises be the single predominant factor for determining whether an increase is excessive. Whilst market rents will still be an important factor, the tribunal will be able to consider a range of other matters including, for example, the frequency and size of past rent increases, a general price index, for example the consumer price index, rents paid for similar sites or dwellings in the same park and the conduct of the parties. It has been argued that the consumer price index can mean several different things. This is why clause 57 in the bill refers to a general price index rather than the consumer price index. The tribunal can consider a price index which is relevant to the particular circumstances of the case before the tribunal.
These new provisions will also help to address difficulties presently encountered by the tribunal having to primarily rely on the market level of rents for comparable premises. A problem often experienced by the tribunal is that there are no comparable premises as the park is the only one in the vicinity. This is quite unlike the circumstances for houses and flats, where even small towns will usually have at least some other rented premises which can be used as a comparison. Sometimes the nearest residential park is more than 60 kilometres away.
The provisions are not, as referred to by some, a form of rent control. Excessive rent dispute resolution processes have existed in New South Wales since 1986 and the tribunal already has a general discretion to consider any relevant matter. The new provisions merely provide a more workable and logical mechanism for resolving disagreements over alleged excessive rents or rent increases. The tribunal itself has identified that there are difficulties in applying the excessive rent criteria for conventional premises to parks.
The bill includes a number of provisions which are designed to encourage the use of alternative dispute resolution mechanisms. In a strategy to limit the number of matters which end up in the Residential Tenancies Tribunal for formal adjudication, several steps have been taken to enable disputes to be resolved by more appropriate means. Each park with 20 or more occupied long-term sites will be required to establish a park liaison committee. The park owner will have a specific responsibility to set up and maintain a liaison committee. Although there will be no set number of members on the committee there is to be a majority of resident representatives. This will ensure that the voice of residents is heard.
The role of the liaison committee reflects the overall aim of the new legislation, namely, to encourage harmony within residential parks. Liaison committees will enable park owners and residents to work together to improve the lifestyle and wellbeing of residents and the community aspects of the park. Another initiative in the bill involves widening the role of the current park disputes committees. Under the code of practice, such committees have had a limited role in attempting to resolve disputes about changes to park rules. Disputes committees are now to have a much wider role and will be able to deal with a range of disputes, except, of course, applications by the park owner for possession of sites or dwellings. This will afford another opportunity for disputes to be resolved in-house.
While these provisions will encourage the use of mechanisms other than applying to the residential tenancies tribunal, the fundamental right of parties to apply to the tribunal for an order will remain. The tribunal will also have the power to refer matters to alternative dispute resolution if considered appropriate. During the public consultation phase prior to the development of this bill, it was clear that both residents and park owners wanted access to a variety of means to prevent and resolve disputes.
One of the major areas of concern to residents revealed during the tenancy commissioner’s review is the issue of water and electricity charges. The bill takes some major steps to resolve these contentious items once and for all. Charging arrangements for water and electricity have been affected by a number of factors over recent years. There have been rapid changes in the way in which individual consumers have been billed for these essential services. Also, there have been recent court decisions on water charging arrangements which have had an impact on parks, in particular. There are a number of existing inconsistencies and uncertainties in this area which the bill addresses.
The manner in which park owners supply, charge for and bill residents for electricity consumption will be locked into a code of practice devised by the Department of Energy for application to long-term residents of caravan parks. The bill makes it clear that, where residents agree to pay for electricity charges, all requirements of the code must be met by the park owner. The code deals with the reading of meters, the frequency of accounts, the information contained in accounts and maximum charges payable. These are all matters which were identified by residents during the review as being in need of clarification. To remove any doubt and to make the legislation consistent with a decision made by the residential tenancies tribunal in a test case run by the Tenancy Commissioner, electricity availability charges will be payable by residents where the availability charge is a component of the published domestic tariff and the site is properly metered.
This provision makes the position of park residents consistent with other tenancies and effectively means residential park
residents will pay the same rate as that of other households. It is a clear indication to the park industry that the Government has listened to its concerns on this issue. Water charging arrangements are also dealt with in the bill. There will be a two-phase introduction process so that by the year 2000 we will have a consistent and logical system in place whereby all residents with a prescribed standard of meter on their site will pay for the water they use.
The arrangements will work in the following way. Up until 31 December 1999 residents will be under the same provisions as at present. Provided the site is individually metered in accordance with regulations, which will prescribe the minimum standard of meters, by the relevant water supply authority, and there is a term in the tenancy agreement requiring the resident to pay for water and there is no minimum charge payable to the park owner, residents can be required to pay for water consumption. The amount charged per kilolitre will be restricted to an amount which is the same as the domestic rate payable by other householders in the community.
From 1 January 2000 all residents with meters will be required to pay for water use whether there is a term in their agreement or not. This will overcome the anomalous situation experienced in some parks where meters are installed on every site but one resident pays for water and the person on a neighbouring site does not, merely because of differences in clauses in their tenancy agreements. To offset any disadvantage experienced by any resident who finds themselves paying for water consumption when previously they have not had to pay, the bill provides that the resident may apply to the tribunal for a rent reduction. The Government could not be any fairer to both parties on this fundamental issue which has been the source of uncertainty and litigation.
Another key area provided for in the bill is in the sale of dwellings by residents on site. This activity is one of the unique features of park and estate living which separates it so markedly from other residential tenancies. It is a very common practice for park owners to allow their residents to sell their homes on site. The bill provides that, unless the park owner and resident have a prior agreement in writing that the dwelling cannot be sold on site, the owner cannot obstruct the sale. Residents who wish to move from their park and not take their dwelling with them need to have unhindered access to the sale process. Residents can choose to use the park owner as selling agent and pay the owner commission. However, the bill tidies up some of the grey areas of the process.
Commission arrangements will have to be in writing. If there are no provisions in the tenancy agreement about "for sale" signs, the park liaison committee will be able to set some guidelines on the size and type of signs so that there is a consistency throughout the park. It will be an offence for the park owner to interfere in the sale of a dwelling. Disputes over sale and commissions will be brought within the jurisdiction of the Residential Tenancies Tribunal. Park owners’ rights to select the tenant of their choice and to reasonably refuse assignment of tenancy agreements will continue. Deeds of assignment will now have to be in the prescribed form and it is made clear that all the rights and obligations of an assignor are transferred to the assignee when an assignment has occurred.
The new on-site sale provisions will provide more clarity and certainty to the process and will provide a more workable mechanism for residents needing to move and leave their dwellings behind. The delivery of mail is one of the acute concerns which park residents have. Unlike most other members of the community, park residents often do not receive their mail directly from Australia Post and have to rely on the park manager to sort their mail and perhaps place it in a pigeonhole in the park office. There is often no privacy nor security over their mail and it is clearly an unsatisfactory arrangement. Sorting mail can also be a burden on park owners and I understand that the staff of a large park may spend several hours each day in the Christmas period merely sorting mail. It would be far preferable if residents had their own facilities for the receipt of mail directly from Australia Post and there are provisions in this bill which encourage and facilitate such a result.
Where a majority of residents elect to have individual facilities, the park owner will be able to charge a reasonable one-off fee to residents for the installation of mail boxes. The bill provides a sensible mechanism for this process with residents being able to determine the type of mail facilities through the park liaison committee in consultation with Australia Post over the location and type of mailboxes. The bill is not unnecessarily prescriptive on this important item but does provide a logical process for the resolution of this long standing area of concern.
There will be a new provision covering purchase and tenancy packages where a manufactured home is purchased off-site for location in a park under a tenancy arrangement. As a protection for purchasers, there will be a cooling-off period of five days for such contracts. It is likely that such packages will attract older members of the community who may view the purchase as retirement housing. There needs to be adequate protection for these people who may be making one of the largest and most important purchases of their lives. Unlike bonds paid for tenancies of conventional tenancies, rental bonds paid on park sites are presently not captured by the provisions of the Landlord and Tenant (Rental Bonds) Act. This inconsistency is overcome in this bill. Bonds will have to be lodged with the Rental Bond Board and disputes over the refund of them will be dealt with by the Residential Tenancies Tribunal.
A new provision will allow disputes over alterations and additions to dwellings to be heard by the tribunal. At present, park owners do not have to have any valid reason to refuse a proposed alteration or addition by a resident to his or her own dwelling. If a resident wishes to install an awning to provide protection from the rain or hot northerly sun and the owner refuses permission, there is no mechanism for the matter to be resolved. Now, provided the proposed alteration or addition meets local government requirements, the park owner will not be able to unreasonably refuse. Any disputes about consent being unreasonably withheld will be able to be heard by the tribunal. Of course, the tribunal will have to operate within any building approval limitations imposed by local councils.
Disputes often arise in parks over who is responsible for the trimming and lopping of overhanging tree branches which can often become an issue of safety. The member for Myall Lakes raised this particular matter during the debates in the other bill. The Government has addressed this matter through clause 71 of the bill, which places the responsibility of tree maintenance with the park owner to ensure the safety of residents and property. The clause also recognises that the park owner is not expected to do anything unlawful and the residential tenancies tribunal will be able to hear disputes over tree maintenance. The tribunal will have a number of new, extended or confirmed powers to assist in dealing with some of the initiatives included in this bill. This will extend to matters involving sale of dwellings on site, commissions, fees
charged for mail facilities, orders on refund of overpaid rent and, importantly, possession orders allowing it to not only order possession of a site and or dwelling but also order that a resident not remain anywhere within the park. This recognises the concerns raised by owners that a disruptive resident can significantly undermine the harmony of a park.
The current caravan and relocatable home park industry code of practice will be abolished and the code’s provisions will be included in the bill and refined to overcome previous difficulties in the code’s operation. To address concerns over the enforcement of the code, penalties will be attached to its obligations. To ensure that the practical operation of this new bill meets expectations, the Government will ensure that it will be closely monitored. The residential tenancies consultative committee and its parks subcommittee, which operates under the administration of the Department of Fair Trading, will have this task. Any difficulties becoming evident will be addressed. If necessary, further legislative refinement will be carried out.
Also, should the current national competition policy review of the residential tenancy laws by the Department of Fair Trading generally reveal any further matters affecting parks needing to be addressed, then the necessary steps will be taken. Regulations to support the bill will be developed following consultation with all of the relevant stakeholders. Among the matters to be addressed will be new and more relevant standard tenancy agreements and condition reports, standard deeds of assignment and minimum metering standards for water supply.
In addition to this bill, the Department of Fair Trading plans a number of other initiatives to assist park owners and their residents. As recommended by the Tenancy Commissioner, the department will organise or sponsor information sessions in regional areas of New South Wales on rights and obligations under the new legislation. Discussion will be held with TAFE over the possible development of courses in park management for those entering the industry or wishing to update their skills. There is a continuous demand from park owners, managers and residents for information on park living and the Department of Fair Trading is committed to meeting this demand with a variety of different strategies.
This bill before the House today recognises the special nature of park living and addresses in a responsible way the issues which separate it from other types of tenancies. I commend the bill to the House.
The Hon. J. F. RYAN [2.41 p.m.]: It is my pleasure to lead for the Opposition this afternoon on the Residential Parks Bill.
The Hon. J. W. Shaw: Yes, you are opposing it.
The Hon. J. F. RYAN: The Opposition does not oppose the bill.
The Hon. J. W. Shaw: The amendments do in fact. The amendments would gut it. You are sabotaging this bill.
The Hon. J. F. RYAN: I understand what politics is about. The Minister does not usually play to the gallery. I understand that it is a good game. Nevertheless, the Opposition concurs with a substantial amount of the 130-odd page bill. To suggest that somehow or other the few amendments that the Opposition wishes to make to the bill would denude the bill is too ludicrous to contemplate. Opposition members not only support tenants of mobile homes, they have been their advocates. For example, the honourable member for Gosford has pursued the issue because it affects his electorate.
The Hon. Dr B. P. V. Pezzutti has also made representations on behalf of people living in mobile housing on the north coast. It has become a very popular form of semipermanent living. Some residents want access to a particular type of lifestyle. In many cases they have waterfront access at modest expense. Some enjoy alternative community living in a mobile home village. Many residents are saving to buy their first piece of real estate somewhere else. Some residents have enjoyed staying in mobile accommodation on holiday and they desire to make it part of their lifestyle more permanently. For a whole variety of reasons residential parks are becoming more popular.
The Opposition recognises that some of the conditions which have prevailed in residential parks have been less than desirable. In some respects it has been a no-man’s land in regard to the need for legislative certainty. The bill addresses important issues relating to the sharing of utility costs for electricity and water. In most cases electricity and water bills are met by the owner but eventually somehow or other the residents of the manufactured housing park or the residential park share the cost. It has to be recognised that this is not always equitable. Some people who sparingly use water share the bill with people who use water excessively. People who sparingly use electricity share the bill with people who use it excessively.
Some mobile parks are of sufficient size that they are small communities not dissimilar to local council areas. There is a need to make sure that people have access to mail and shared facilities. The pathways that exist between the housing are akin to roads, often a single lane. Individuals are not able to negotiate in an equal position with a corporate entity. These issues have been recognised by many members of the Opposition with mobile housing in their electorates. I would hate to think that the Australian Labor Party would claim some sort of monopoly of interest; it is shared by all members of the House.
It is a pity that the Government has inserted two controversial aspects into a bill the majority of
which the Opposition could agree with. The issue of rent control goes back a long way. Provisions in the bill are not dissimilar to rent control. For want of a better description, the bill’s rent provisions are old-fashioned and dated. The Opposition accepts that residents of caravan parks do not have equal bargaining power. In fact, the Opposition attempted to move amendments in another place which would have given a means by which people could draw up acceptable agreements which would be modified only when financial circumstances change. That is quite different from the provisions in the bill which allow for rent to be changed according to the conduct of the parties. I look forward to some explanation from the Minister as to what is meant by "the conduct of the parties".
We have gone from one potential extreme to another. The Opposition would agree that the open market does not provide an appropriate way to resolve rent issues. Nevertheless, the bureaucratic arrangements in the bill are not in the interests of residents. It has to be accepted that, in a democracy and open market, if conditions are made too onerous for the park owner - I do not advocate open slather - there will be a flight of investment.
Because the parks are located in desirable areas the economic issues and arguments of the investment are finely balanced. The land could be used for tourism or to provide residential housing. One of the reasons that this State no longer has rent control is that back in 1975 Professor Sackville pointed out in his report on poverty that if regulations on land-holders are too severe in regard to rent eventually the accommodation supply disappears and, over time, the rent escalates - or the taxpayer is required to provide an enormous amount of public housing. Professor Sackville stated:
Rent controls threaten a landlord’s profitability and he will attempt to counter them, for example, by reducing repairs to the minimum. If profitability cannot be maintained landlords will look to other forms of investment and prospective landlords will be discouraged from initial investment. In consequence, the stock of rental housing will drop and some low income tenants will be moved from the disadvantage of substandard rental accommodation to the disadvantage of no accommodation at all . . . Coincident with the operation of those (rent) controls has been a market decline in the amount of private rental accommodation.
As was said ages ago, there is no such thing as a free lunch. If rent controls are too severe the accommodation supply will eventually vaporise. Once it is gone there is just as useful a market hole as there would have been in a totally open and free market. It is in the interest of residents that landlords be allowed an acceptable return whereby they can accommodate issues such as the cost of living, the cost of maintaining the premises and the cost of dealing with new government regulations.
The Hon. Jan Burnswoods: What about the people who live in caravan parks?
The Hon. J. F. RYAN: One might consider the issue of caravan parks. Land tax changes, which were brought in by the current Government, for example, might well be introduced into this equation. The Government has done nothing about the threshold relating to the payment of land tax. Landlords will not be able to cover that cost forever.
The PRESIDENT: Order! Members of the public are most welcome but they must not comment or disrupt the proceedings.
The Hon. J. F. RYAN: Any responsible person will recognise that there needs to be a fine balance. There is no point in a government trying to pretend that rents can be controlled any more than waves can be controlled. Ultimately something has to give, and it gives one way or another. When the academic research was presented to the Parliament I heard no argument advanced here or in the other place against it. I have heard emotional claptrap such as, "What about the residents?" The Opposition is concerned not only for the immediate future of residents but for their long-term future and security.
The Hon. Jan Burnswoods: You are really showing a concern for the residents, aren’t you? These are the same crocodile tears you put on with public housing.
The Hon. J. F. RYAN: The honourable member is being most unpleasant.
The Hon. Jan Burnswoods: Because you are being unfair.
The Hon. J. F. RYAN: Hardly. The honourable member will get her chance to make a contribution in this debate and I invite her to go through the research and my arguments chapter and verse and demonstrate how I am being unfair. I have been on enough committees of this Parliament, and I have heard enough evidence given to them by people representing agencies such as the Council of Social Service of New South Wales who have presented exactly the same arguments I have presented. One does not have to have vinegar flowing through one’s veins to point out that if property is not a profitable investment, people will spend their money not on property but something else and rental accommodation will not exist.
I suppose honourable members opposite might prefer that, instead of organising their own accommodation in a mobile park, people should become dependent upon the Government for public housing. I am saying that the control needs to be finely balanced, not that there should be no control at all. If controls are too severe, ultimately people will change the nature of those parks and remove the residents who will have nowhere to live at all, and that is not a socially desirable alternative. The Opposition is not arguing in the dark in that regard; it moved amendments in the other place which provided for agreements that were subject to some control. It was not a case of giving landlords a complete open slather in that regard but achieving a balance of allowing increases over the long term rather than the short term for unreasonable reasons.
This Government has hanging over its head the fact that it is charging more land tax, which is one of the reasons why many people in mobile parks will be paying more rent. The Government has done nothing about the rate of land tax or the threshold. Landlords do not live in some sort of utopia. If their costs increase, ultimately they will seek to pass those increases on to tenants. In fact it is an economic fact that the cost of rent has nothing to do with what landlords charge but more to do with the fact that if landlords ultimately charge too much, people will rent other premises and not theirs. If the availability of rental accommodation becomes scarce, naturally rents will increase. The Opposition is not saying that there ought to be no control but it is a matter of fine balance.
Additionally, there are issues in this bill that are probably more reasonably the subject of some sort of administration control such as regulations. For example, there are fairly draconian requirements in this bill with regard to notice boards. Notice boards would normally be the subject of a regulation rather than an Act of Parliament. Yet premises that are found not to have a notice board when inspected could be subjected to a significant fine. The Opposition believes that is not reasonable, particularly if there is a reasonable cause for there not being a notice board.
The Hon. A. B. Kelly: What sort of reasonable cause?
The Hon. J. F. RYAN: It might be that it has been removed without the landlord’s knowledge. Some parks are sufficiently large that that sort of vandalism can occur.
The Hon. I. M. Macdonald: That is absolute nonsense.
The Hon. J. F. RYAN: The Hon. I. M. Macdonald can perform in the circus all he likes. Clause 57 of the bill specifies the matters that may be considered in determining rent applications. Some of its provisions are certainly quite reasonable, for example, the tribunal would have regard to the general market level of rents. Even honourable members opposite would accept that the market has some role to play. It is not as if the Government is arguing that it has no role; it does. The tribunal would also have regard to other residential parks in the locality or a similar locality. There might be some regard given to the value of the premises. Interestingly, the tribunal will have regard to the frequency and amount of past rent increases under the residential tenancy agreement or previous residential tenancy agreements.
Honourable members will have to accept that if landlords are going to be limited as to when they may increase rents they will do it properly and make sure that people have large rent increases rather than gradual increases in rent. Rents will become unpredictable and it will be hard to budget for large leaps in rent which need to be regarded. Nobody would disagree with some consideration being given to the consumer price index which is fairly low at the moment and is not of great concern now.
However, I ask people to consider that the same economic circumstances may not prevail in the future. At times the CPI in Australia has been of the order of 7 to 10 per cent. Landlords might make sure that the rent goes up by 7 to 10 per cent simply because they can increase rent for that reason. They will make sure that they increase the rent because they would be silly not to.
Landlords will have a solid gold reason before asking the tribunal to increase the rent by 10 per cent if that is the rate of inflation, even if they do not enhance the facilities or if there is no other reasonable market reason for doing so. For example, pensions may not necessarily increase - they do - but landlords may put rents up in accordance with the CPI. People on fixed income may not necessarily get the benefit of the CPI.
The Hon. A. B. Kelly laughs at me. Actually not every landlord is out to wickedly exploit every single tenant. In many instances there is a contract between the tenant and the landlord. The landlord wants an income but in many instances they also want good tenants. There are plenty of landlords that will consider moderating their rent in order to make sure that they maintain and keep good tenants, because they do not necessarily want repair bills. There are plenty of responsible landlords.
Not every landlord needs to be characterised as greedy. Some landlords are greedy and I do not defend them but plenty of landlords regard their contract with their tenant as something which they have to gain by being a responsible landlord, and they accept that. Sometimes landlords might modify rental increases in order to keep a specific tenant who they are aware may not be able to pay a particular increase.
However, if landlords know that their only justification for increasing rent is to have regard to the CPI, in all probability they will have to increase the rent by that amount because they will not get another opportunity if their circumstances change. There are other quite legitimate issues, such as the value of work done on the premises and the value and nature of fittings. I ask the Minister to explain what is meant by the term "the conduct of the parties" because I could not find an explanation of that in the debate in the other place.
The Hon. J. W. Shaw: It is an ordinary English expression.
The Hon. J. F. RYAN: It is an ordinary English expression, but I would appreciate being told why the rent would be put up. Does it mean that a bad tenant might attract a higher rent because his or her conduct had been poor? Surely the Minister would not argue that a landlord could simply make it economically not feasible for a person to live in a park because the landlord disagreed with the conduct of a tenant. I would not have thought that would be an appropriate consideration in the setting of rent. It is a person’s choice whether the home is in a mobile park or a palace in Vaucluse. I believe the expression is too wide and that the tribunal will have an interesting time trying to define it.
Perhaps the Minister might assist the tribunal by explaining what is meant by that expression because, although I do not claim to be a lawyer, I believe the matter will be debated long and loud in a costly manner before the courts. The Opposition will move similar amendments to those moved in the other place. One of those amendments was accepted by the Government, so they did not all meet with opposition. I suspect that some of the interjection and performance by the Government is directed at playing to the gallery and milking this issue for some political gain. By and large the Opposition applauds this bill. Except for a few matters, it meets with the Opposition’s approval and support.
The Hon. FRANCA ARENA [3.01 p.m.]: I should like to congratulate the Government on this bill, which I will support it in its entirety. I will not agree to any amendment to the bill because I am satisfied it is a sound bill. This morning I had an interesting meeting with a lady named Felicia, who is in the gallery. She talked to me about her experience of living in a home park and asked for my support for the battlers. All my life I have supported the battlers and I am not going to change now. I have received considerable correspondence on this bill, some from people who seek amendments to the proposed legislation. I have considered their amendments but in all honesty I cannot support them. I refer to a letter addressed to me dated 9 November from a lady from Kincumber, who stated:
I am concerned this legislation be passed in its entirety without any amendments, so as to protect residents who have been so badly treated over the past years and are in urgent need of protection. This legislation should stand and be passed as presented.
In every area of operation of this industry, residents are at a disadvantage, as the current legislation is totally geared to the protection of the owners and residents have very few rights or advantages. In our opinion all the current legislation before parliament does is even out the playing field and allow the residents some rights to protest.
My own situation is extremely difficult. In the past 7 years, my leasing fee for the small area I need to accommodate my house has risen from $80 per week to $95 as well as an extra amount of approx $2 per week for water charges which were included in my original $80. My husband and I retired to this village and did not realise how little protection we had from increased charges with no increase in services or seemingly no reason for such rises. My husband has since died and I am now in a situation of attempting to manage on a single pension with no protection at all for the future. My fortnightly pension payment of $434.80 which includes the Pharmaceutical Allowance and a rental allowance of $74.00 leaves me little left after paying my fortnightly leasing fees and my water payment which together total $195 per fortnight - $234.80 to be exact - which needs to cover my food, running my small car, house and car insurance etc. I can assure you that a total of $117 per week to do all this is not an easy task.
In our particular village - with approximately 275 houses - and with an approx income from rentals of $24,750 a week or $1,287,000.00 per year and with no new facilities or additions to the village since I have lived here, we fail to see the need for the constant increases we have experienced. It is interesting to note that each $5 increase in rent equates to a total of $71,500.00 increase in annual income for the village.
I have some interesting figures. In December 1986 the rent was $38 and the pension was $102.10, so the rent was 37.22 per cent of the pension. For a married couple the pension was $187, so the rent was 20.32 per cent. In 1998 the rent is $87 per week and the pension is $177.30, so the rent is 49.07 per cent of the pension. People should not have to pay rent of between 37 per cent and 50 per cent of their income. I have received letters from the Coffs
Harbour and District Park Residents Association, the Dural Village Caravan Park Residents Association and many more. People risk the loss of their chosen lifestyle because of continual increases in rent. These homes are not luxurious and suitable for millionaires. The residents are not on high incomes; most are on the pension. Once again I express my full support for the bill and congratulate the Government on it.
The Hon. Dr B. P. V. PEZZUTTI [3.07 p.m.]: This proposed legislation follows, varies and to some extent updates the residential parks legislation put in place by the Greiner and Fahey governments. The honourable member for Gosford and I played a significant role in the development of that legislation and I received firm advice about it from residents of caravan parks in the Tweed, Ballina and Byron shires. Many of the changes in this bill bring up to date and in some way vary the conditions of tenancies. However, I am surprised that the Government has not moved further in some areas. I am always astonished that residents of caravan parks must go to the office to gather mail because it is not a condition of the occupancy that mailboxes are put on public streets, as occurs with blocks of units.
No provision has been made in planning guidelines or in this proposed legislation to afford people the basic privacy and normal access to mailboxes which others take for granted. Residents in these parks cannot obtain their mail at any time. In most parks it is done by requirement, although sometimes by agreement mailboxes are set up outside the management area. However, generally speaking, mailboxes are inside, and if there is a difficulty between the caravan park manager or owner and the resident, it is undesirable to have regular contact when picking up mail.
You cannot legislate for good behaviour by either tenants or owners. Some heavy-handed provisions in this bill are an overreaction to good management and good people management on both sides. I have followed the formulation of this bill fairly closely and observed that the level of consultation undertaken was not extensive. In fact, the bill was available for only eight days before being introduced into the Legislative Assembly.
The Hon. J. W. Shaw: That’s not right, there was a report. It is all in clear English.
The Hon. Dr B. P. V. PEZZUTTI: Yes, the Minister, who is a Queen’s Counsel, is correct, the legislation is written in clear English. But, given the nature of the changes to various Acts, I doubt whether any resident of a caravan park could read the legislation and fully understand its implications. Some people in the gallery are nodding their head - although I suppose I should not take notice of them, because I would offend against your ruling, Madam President.
The PRESIDENT: I advise you not to.
The Hon. Dr B. P. V. PEZZUTTI: I am personally surprised by some of the language in the document. Given that this is logjam time, when everything happens at once, it is surprising that honourable members had only eight days to consider the legislation before it was tabled; we have had years in which to do that. I am concerned with two areas. One, is the vexed issue of "nuisance" in a caravan park. An individual, or a couple of individuals, can make life unpleasant for everyone in a caravan park. The owner or the manager gets it in the neck from the other 143 residents and is asked what he is going to do about numbers 144 and 145. In the other House the Minister for Housing quite property adopted the remedy of the resident from hell in his famous legislation on departmental housing; but he was not prepared to take action in the private sector.
I am advised that the legislation contains mechanisms for the tribunal to get the tenants from hell to quit. However, if they do quit, it is not clear whether they are entitled to the 180-day notice or compensation for moving. In other words, if the tenants from hell prevent other residents from living in harmony and peace and quiet, to which they are all entitled, and they quit, the legislation does not clearly state whether they are entitled to compensation. I ask the Minister to explain under what circumstances the tribunal can issue an eviction notice and how long it takes for such an eviction notice to be served.
The Hon. R. D. Dyer: I would sometimes like to serve an eviction notice on you.
The Hon. Dr B. P. V. PEZZUTTI: You might well, Minister, but many people who live in caravan parks would love to know how long it takes for an owner, when petitioned and begged, to go through the process of a tribunal hearing to serve an eviction notice, and at what cost to the owner. At the end of the day the cost to the owner will be passed on to other residents.
The Hon. Carmel Tebbutt: They are certainly doing that now with unreasonable rents.
The Hon. Dr B. P. V. PEZZUTTI: The Hon. Carmel Tebbutt said that is certainly true now with unreasonable rents. A member of the Government in the other House said that there were 942 caravan parks with 25,000 sites, occupied by approximately 50,000 people, perhaps more. Obviously there is big competition in that market. It is in the best interests of the owners and the residents of caravan parks and relocatable home parks to have a good relationship one with the other and for the residents to have certainty of their occupancy. It is not uncommon to have a mixed park with a certain number of permanent places and a number of holiday or vacation places.
Mostly the market determines the appropriate percentage and position for occasional sites. I have stopped receiving complaints, although they may still exist, about the positioning of overnight or by-the-week holiday rental in the midst of permanent rentals - which causes difficulty and distraction, particularly for older people who like to know their neighbours. Elderly people need to be able to call on trustworthy neighbours in times of need. Honourable members may be surprised to know that the costs of accommodation in some relocatable homes and caravan parks can be worth $100,000 or more. People chose to live there because they like to be really close to other people.
The Hon. R. D. Dyer: It is expensive to relocate; it can cost up to $10,000.
The Hon. Dr B. P. V. PEZZUTTI: I will get to relocation costs later. Honourable members need to understand that these valuable properties are the choice of people who wish to live close to others or wish to travel and like to know that someone is looking after their site. The last thing they want is people who come to live nearby by the night or the week. On the issue of rental and rental fixing the Government may have gone a little overboard.
It will be interesting to see how the tribunal operates. For example, if a new rental process came into place today, what would be considered a reasonable interval between that rental and the next rental variation? That can depend on changes of interest rates, on government charges such as land tax - which suddenly, dramatically and quite unreasonably increased in the last budget - as well as workers compensation rates and insurance rates. These can change overnight. How long would the tribunal consider is reasonable for a park owner to bear those costs before passing them on?
The Hon. Dr Meredith Burgmann: They are making a fortune.
The Hon. Dr B. P. V. PEZZUTTI: And the same goes for council charges. The Hon. Dr Meredith Burgmann, said, "They are making a fortune". Many caravan parks on the north coast are council owned and operated and are on Crown land and the charges levied are meant to be used for improvements in the parks. Some councils have been siphoning the money. Some claim that the only way they can maintain the park to the requisite standard is to raise the rent or impose a levy. Clearly, the expectations of quality and service by residents in mobile parks and relocatable home parks has increased; that is, consumer expectation of quality has continued to increase. To match that increase the owner is committed to continuing repairs, maintenance and capital improvements.
The Hon. Dr Meredith Burgmann: You are filibustering.
The Hon. Dr B. P. V. PEZZUTTI: No, I am not.
The Hon. Dr Meredith Burgmann: You are talking, talking, talking. Let us get on with the vote. All you are doing is trying to stop the vote on this bill.
The Hon. Dr B. P. V. PEZZUTTI: If the Hon. Dr Meredith Burgmann had spent as much time as I have talking to people in caravan parks she would know a bit more about it.
The Hon. Dr Meredith Burgmann: Don’t be so patronising!
The Hon. Dr B. P. V. PEZZUTTI: I am concerned about the functions of the tribunal and how it will operate. I daresay it will take some time to settle down. The bill provides a fairly wide scope for what is an attempt by the Government - and the Attorney General, Minister for Industrial Relations, and Minister for Fair Trading has sold it - at rent control. A report in the press stated:
New South Wales Fair Trading Minister, Jeff Shaw, QC, MLC, said today that the State’s 50,000 residents of caravan parks and manufactured home estates will have the strongest protection ever against rent increases.
As the Hon. J. F. Ryan pointed out -
The Hon. Dr Meredith Burgmann: Are you opposed to rent control?
The Hon. Dr B. P. V. PEZZUTTI: Yes, I am.
The Hon. J. F. Ryan: There is no such thing. It’s a fantasy.
The Hon. Dr B. P. V. PEZZUTTI: It is a fantasy, and the Hon. Dr Meredith Burgmann knows it. The trouble with the honourable member is that she is a bit like Paul Keating with that famous budget. He tried to remove negative gearing in the housing property market because it was providing a subsidy to the rich. The Hon. Dr Meredith Burgmann supported that proposal entirely, but there was such a dearth of investment in new rental properties that the rents went up through the roof. The same will happen here. I am not concerned about the principle of allowing 180 days notice. The honourable member for Gosford and I fought for that when the coalition was in government, and it has existed for some time.
The Hon. Dr Meredith Burgmann: You want no-fault eviction.
The Hon. Dr B. P. V. PEZZUTTI: I do not want no-fault eviction. I never wanted no-fault eviction.
The Hon. Dr Meredith Burgmann: On 28 August 1991 the Liberal Party supported no-fault eviction.
The Hon. Dr B. P. V. PEZZUTTI: It was not introduced. The important thing is that there is no mechanism to establish the relocation costs. I am concerned that the tribunal will be expected to determine the fairness of the costs. I hope they will be determined in anterospect, so that the costs of both the person moving from the caravan park and the owner of the caravan park to enable redevelopment within the park will be reasonably assessed.
I am also concerned that people on mobile home sites and relocatable home sites do not have individual water meters. If I owned a park I would install them. That would be fair to everyone and would put them in much the same position as those who live in residential accommodation. The same would apply to electricity. Some shared costs would have to be borne by all residents, but that could be included in the rent agreement with the tribunal. The Opposition has proposed some amendments to the bill. I am not entirely enamoured of all of them. The operation of the legislation is probably more important than the words contained within it.
The tribunal will probably have more impact on continuing investment in the development of new relocatable home sites than the continued operation of existing ones. Coffs Harbour used to have numerous caravan parks on the beach, but they have been sold off for major resort development. People who choose to live in relocatable home estates or mobile parks should be able to access accommodation on the beach and close to the water. Such sites are available in Queensland, but I am sad to see that they are fast disappearing in New South Wales.
The Hon. I. COHEN [3.25 p.m.]: The Greens support the bill and heartily congratulate the Government on its introduction. We commend the Government for giving tenants extra rights. However, we believe that the bill could be strengthened to give the tenants even more rights. I will move amendments in Committee in that regard. We have received many letters in support of the bill following a review of, and report on, the concerns of park and estate residents that was carried out by a number of instrumentalities over some time. It is certainly something that has been well researched. This stand-alone bill relates specifically to the caravan park and manufactured home estate lifestyle.
Since 1989 people living these kinds of lifestyles have been covered by the Residential Tenancies Act, which was designed to cover primarily tenancies in houses, flats and units, where tenants rent both the accommodation and the site upon which it stands. It appears that the Act is unsuited to the lifestyle of park residents who own their own homes and who rent only a small piece of ground on which to place their homes. Over the years various amendments and regulations have been introduced to attempt to rectify the situation, which has apparently caused confusion in the minds of park residents, park owners and the Residential Tenancies Tribunal.
According to the Minister's second reading speech and letters to my office, the single most important issue raised by park residents is rent increases and how they are dealt with under the Act. It is important to note that a high proportion of park residents are older people not on fixed incomes, or people who are in receipt of some form of social security income such as a pension. Approximately 40 per cent of residents are 60 years of age or older, and approximately 80 per cent are not in paid employment. A letter to my office from Jim Clark, State Co-ordinator of the Affiliated Park Residents Association, states that some pensioners have opted for an alternative housing lifestyle, that of buying a home and locating it in a caravan park or a manufactured home estate and leasing a small piece of land instead of living in their own homes. The letter states:
In 1987 when it became legal to do this, many pensioners were attracted to this lifestyle which has some features which were appealing to them. I refer to safety, security, companionship and also at that time was affordable, married couples paying 19% of pension, singles paying around 30% This is no longer the case.
Rents in this lifestyle have escalated at a rate far higher than any other. In the 10 year period since this alternate housing lifestyle became legal, rents have increased by over 100 per cent. In fact, on the Central Coast there is irrefutable evidence of increases in that period of 200 per cent. No other rental properties come anywhere near this.
In our view this has been brought about by unscrupulous park owners who have taken advantage of the fact that home owners, many of whom are elderly and frail and therefore vulnerable and in a captive situation, to continually raise rents.
This association is inundated with calls for help from pensioners who no longer can afford to live in their own home and cannot afford to shift as the cost is prohibitive. To relocate can cost from $10,000 to $15,000.
The bill has some very positive aspects. Under the Residential Tenancies Act 1987 the factors for consideration in determining whether a rent increase is excessive are set out in section 48. The main factor is "the general market level of rents for comparable premises . . . in the locality or a similar locality." Other factors are also set out in this section. The Residential Parks Bill sets out the matters for consideration in clause 57.
New matters for consideration not included in the Residential Tenancies Act are: the frequency and amount of past rent increases under the residential tenancy agreement or previous residential tenancy agreements between the same park owner and resident; a general price index, such as the consumer price index; and the conduct of the parties. The Greens fully support these new matters for consideration. In fact, we would like those matters added as matters for consideration under section 48 of the Residential Tenancies Act.
The bill sets up a framework enabling establishment of park liaison committees. This hopefully will lead to dispute avoidance and provide a forum for dispute resolution. However, there are problems with these provisions. According to the Parks and Village Service, it appears that the alternative dispute resolution proposal is not voluntary. This flies in the face of the whole purpose of alternative dispute resolution and is contrary to the principles of alternative dispute resolution. The Greens consider that the alternative dispute resolution procedures outlined in the bill should be voluntary.
The bill clarifies charging and billing arrangements for electricity and water supply, and introduces a mechanism to deal with the installation of individual mail facilities for the use of residents. Another aspect of the bill is part 10, which deals with the sale of moveable dwellings and manufactured homes. The bill sets out rights and responsibilities in this regard. This is important as there have been problems relating to park owners with regard to residents trying to sell their homes. However, some important issues are missing from the bill. For instance, in a briefing note to crossbench members the Parks and Village Service, the main lobby group for residents of parks and villages, states:
Our most serious concern is with the lack of consideration for the status of residents of parks and villages for whom this is not their "principal place of residence".
The Parks and Village Service argues that the purpose of the legislation is to balance the rights and responsibilities of residents and park owners. However, the bill deals only with residents for whom the residential park is the principal place of residence. It fails to offer any protection to residents who may incur similar expense and potential losses as their park neighbours but who have none of their rights or remedies. For some people, such as the semi-retired, or those doing contract work for a period of time in distant locations, their home may not be their principal place of residence.
There is no reason why such residents should not be given adequate notice of rent increases, fair treatment in relation to termination of their tenancies, and the right to fast, efficient remedies in a specialist tribunal. Another problem has to do with mail facilities. The bill currently states that a park owner who installs individual mail facilities may charge residents for obtaining and installing such facilities. However, the Parks and Village Service considers this to be unfair. It argues that the installation of mailboxes should be regarded as a capital expense of the park owner which can be written off against profits over the life of the mailboxes. The mailboxes remain the property of the park owner, so why should residents have to pay for the installation of those boxes?
The Greens had amendments drafted to address this issue. However, I will not move a number of those amendments as I understand the Government does not support them. Nevertheless, I will raise the issues in Committee to highlight just some of the issues that affect people who live in parks and villages. Greens amendments Nos 22 to 25 have to do with mail and the selling of manufactured homes and caravans. Residents should be entitled to privacy in relation to mail. It is not infrequent, for example, that park residents do not
receive notifications from the Residential Tenancies Tribunal. It is not difficult to install banks of letterboxes that can be separately secured by residents - as is often the case, for example, with blocks of flats.
The owners of manufactured homes and caravans with rigid annexes must be allowed to sell their dwellings on-site without interference by park owners. Otherwise, a resident may be forced to sell a dwelling to a park owner if no other market is available. Significant justice issues are raised by this Residential Parks Bill. I am very comfortable as a member of the Greens supporting the rights of the people in our community who have in most, if not all, cases served our community well for many, many years. They deserve their right to live where they like and in the comfort and conditions afforded other members of our community. I hope they enjoy their retirement by the beach in a caravan park.
The Hon. R. S. L. JONES [3.34 p.m.]: I am pleased to support the Residential Parks Bill. This proposed legislation is long overdue. It really is about time that we placed residents of caravan parks and manufactured home estates on the same footing as other members of our community. The bill extends the factors which the Residential Tenancies Tribunal can consider when deciding whether rents are excessive. It introduces additional dispute avoidance and dispute resolution forums. It attempts to clarify charging and billing arrangements for electricity and water supply, and provides for the installation of individual mail facilities.
The bill also clarifies the process by which residents can sell their on-site homes. It provides for a five-day cooling off period for prospective purchasers of manufactured home and tenancy packages. Further, it covers tenancies at parks for false and misleading representation under the Fair Trading Act and it covers bonds paid on sites under the Landlord and Tenant (Rental Bonds) Act. I have had representations from a number of people, including the Caravan, Camping and Touring Industry and Manufactured Housing Industry Association of New South Wales. The association complains that the bill has been hastily drafted. It is most concerned about the elimination of market rental as the primary reference for determining what is an excessive rent increase.
The association is also concerned about the introduction of penalty notices and on-the-spot fines for regulating relations between park owners and residents. The association argues that these changes introduce a form of rent control - an argument with which I disagree. The Real Estate Institute also is of the opinion that the changes proposed by the bill amount to rent control, and that these measures will inhibit new construction, lead to the deterioration of existing accommodation, reduce property tax revenues, incur substantial administrative costs, and reduce consumer mobility. On the other hand, the Parks and Village Service is generally supportive of the bill, believing that it will contribute towards the betterment of the rights and conditions of permanent residents of caravan parks and manufactured home estates.
The Parks and Village Service, however, has a number of concerns about this bill. We have been meeting with the service and discussing those concerns. In Committee, I will be moving 11 amendments to address some of those concerns. Among the main concerns is that no protection is provided to residents for whom parks and villages are not their principal place of residence; that the bill places onerous requirements on residents in relation to the quiet enjoyment of others; and that park owners are not responsible for the cleanliness of and repairs to common areas and facilities.
Other main concerns are that park owners can determine the water charges to be paid by residents; that only minor compensation would be awarded against owners who flout rent increase notice provisions; and that owners will no longer be responsible for the maintenance of trees in parks. Further concerns are that the alternative dispute resolution procedure that is proposed is very complex, is time consuming and is not voluntary, and that residents cannot go to the Residential Tenancies Tribunal if the legislation proves to be ineffective. The Parks and Village Service complains that residents cannot take disputes directly to the Residential Tenancies Tribunal, and complains also that residents will be forced to sell their dwellings on-site to park owners at considerable loss.
Amongst those who have contacted me and with whom we have had discussions are Cecilie Frater of the Nautical Village, Kincumber; Mr and Mrs L. and J. Foster of the same village; the Dural Village Caravan Park Residents Association; the Great Northern Sydney Park Residents Association; the Heritage Residents Action Group; the Coffs Harbour and District and Park Residents Association; the Port Stephens Park Residents Association; and the Narrabeen and District Park Residents Association, which provided a letter containing 74 signatures. It is supportive of the legislation but would like some amendments made to it.
In summary, I support the legislation. I will not take up the time of the House by making a long speech now. However, I am very pleased that this overdue legislation is now introduced. I will move some amendments, which hopefully will receive the support of the majority of members of this Chamber.
The Hon. Dr A. CHESTERFIELD-EVANS [3.38 p.m.]: This bill is groundbreaking in the sense that it addresses a matter that has not previously been dealt with; that is, residential parks. I had noticed a proliferation of residential parks but I had not given as much attention to this style of living as I perhaps might have - at least until this bill was introduced. What initially started off as holiday parks and caravans - in the days when people did not mind towing caravans behind their cars and then pitching tents - eventually became a more permanent form of accommodation than had been the case when I was a lad. In those days people used caravan parks for holiday purposes. However, some stayed in that type of accommodation for longer and longer periods, and eventually became permanent residents in them. All of this is of historical interest only.
What must be noted - and is noted especially by the Democrats, who like to take a broad view of society as a whole - is that as people become poorer relative to others, in other words, as there is a rise in inner quality, what started off as temporary arrangements for holidays have now become permanent accommodation for many in our community. Certainly, many people lived in caravans when I was just a child, but not to the same extent that they now do with the growth in parks and villages. An increasing number of people who have a house as their only asset, or who have been renting premises all their lives, basically have had to find cheap accommodation because land prices have gone beyond what many people can afford.
When people move into residential parks they become trapped. I do not mean that they have no other choice, but to some extent residential park tenancies have increased because the alternatives are too costly. Having moved to a residential park, residents may not be able to afford to move again, particularly if their assets are tied up in mobile homes. Despite their name, mobile homes have become less mobile, and it is extremely expensive to move them, that is, assuming people have a place to move them to.
Residents of residential parks are in the unusual position of having a large investment in a dwelling that is situated on land they do not own. It raises the question whether smaller subdivisions are needed. Under strata title a person buys the right to a volume of air above the land, that volume of air being encompassed in a building. Although the person owns the building, he or she must be mindful of owners of other residences in the same strata title premises. Small subdivisions of the magnitude that occur under strata title are not allowed in residential parks. In theory residential park residents are owners of the parks in the sense that they live in them and their future is tied to them. However, in practice they do not own the parks. It is similar to the feudal system in many Asian countries where the tenancy of farmers is at the discretion of landlords or landowners. They are in a tenuous and unusual situation.
It is difficult to balance the rights of owners and tenants. It is all very well to say that landowners can do what they like with their land. In a desirable area, from a market viewpoint, rezoning of land for townhouse development would increase an owner’s profits from the sale of the land. However, if tenancy arrangements are attached to the land an owner may not have the freedom to do that. So there is some cost involved in tenancy agreements. Some residential parks are in desirable holiday locations and have become extremely sought-after locations for retirement. As city people retire to coastal areas the land values have increased. To what extent do these types of leases affect the landlord’s property values? Does the land value relate to other land values in the area or does it relate to rents?
The purpose for which land can be used depends on whether a local council can be persuaded to change land usage. The Australian Democrats have often stated in this House that local councils are changing land usage against the public interest, such as has occurred with Ryde swimming pool, where public land was given to private interests. If a person owns land that does not contain a caravan park or owns land that contains a caravan park for temporary residents only, rezoning of the land to allow townhouse development would affect the landlord’s rights. However, if land contains a residential park, the landlord has to recognise that other interests are involved and that the residential tenants have rights to occupy the land.
What is the price for those competing rights? The Residential Camping and Caravan Park Owners Association - I think that is the correct name - has stated that market rent should be the prime determinant of residential park rents. What is market rent? Market rent relates to the rents charged for houses in the local area. Another way to calculate market rent is to find out the value of land near a
residential park. However, the consumer price index has not reflected changes in land values in New South Wales, particularly in the more desirable parts of New South Wales. When considering rents overall, the rent control Acts of 1938 had immensely negative effects in the long term. For example, in the 1970s the rent for two identical terrace houses, side by side, was $11 for one, as set by the Fair Rents Board, and $35 for the other. Rent control had a huge effect on the value of property and on the availability of rental accommodation.
Until that law was changed there was very little rental accommodation, which made that type of accommodation more precious. Rather than helping tenants by rent control, the supply of rental accommodation dried up. Rent control was an antimarket approach; instead of helping tenants, it actually did them harm. As I wrestled with the problem of fairness and equity, I tried to calculate what a reasonable rent might be. I asked the Tenants Union how the tribunal calculated market rents. I was told that if three residential parks in an area all increase their rents at the same time, and they are the only residential parks in town, that sets the market rent and tenants have to wear it even though they may think it is excessive.
I referred to the rent report - a publication of the Department of Urban Affairs and Planning that sets out private rental market trends in New South Wales - to find housing areas that roughly corresponded with residential park areas. In the period from 1986 to 1998, a back-of-an-envelope calculation showed that rents for dwellings in the outer metropolitan areas increased by 90.2 per cent and for the rest of New South Wales by 57.2 per cent. In the case of residential parks, for the same period there had been a 129 per cent rise in rents. In another case, for a nine-year period a 73 per cent rise had occurred. In the corresponding nine years there had been a 36 per cent increase in rents for dwellings in outer metropolitan areas and a 39 per cent rise for the remainder of New South Wales.
In other words, the increase in rents for residential parks was considerably more than for dwellings. If the only three residential parks in a town simultaneously increased their rents, the three owners would have a great deal of market power. I asked the Tenants Union whether it had compared the increase in rents in residential parks with that for other dwellings in order to get market parity. The tenants representative said that that had not been done because rents in residential parks are different from rents for other dwellings.
If residential parks are developing as a form of housing and their standard is improving, tenants may get some benefit from improvements in terms of value and park owners would get a benefit from their investment in terms of increased rents. I admit that I have been a landlord. Sometimes people have said that if I painted a house I could increase the rent; when I got a new tenant I could say that the rent was higher because the property had been improved. A park owner may decide to install a swimming pool and plant ornamental trees, thus making the park a nicer place to live. However, tenants of the park may not like swimming, may prefer to plant trees from cuttings obtained from the person next door and may not be able to afford the extra rent because they are on a fixed income. Clearly in such cases one person’s right has impinged on another person’s ability to pay.
Earlier I gave two examples of rent increases. In the first example rent had increased from 43.3 per cent of the single pension to 51.75 per cent in a nine-year period. In the second example rent had increased from 37.2 per cent of the single pension to 49.1 per cent of the single pension in a 12-year period. That shows that the ability of residents to pay had been severely undermined, and if the trend continued residents would be in a very difficult situation. No doubt the Government is trying to address that difficulty in this bill, and it is the reason the Government has moved on the issue at this time.
It is all very well to say that residential parks are not public housing. Clearly they are not public housing, but it is not good to privatise welfare. Effectively, the Government is demanding that owners accept a reduced profit in order to fix a problem at a time when welfare benefits are not keeping pace with inflation. That general principle is true. On the other hand, the activities of owners who raise the rent more than they would in different circumstances, because they have a captive market and abnormal market power, are unfair. It is grossly iniquitous if an owner decides to improve a park to make it like paradise and then increases the rent, because anyone walking in can clearly see that it is like paradise, but the existing tenants are unable to pay extra rent, they have not been consulted about improvements and they do not have the ability to control such decisions. One person’s opportunity becomes another person’s persecution - "enslavement" is too strong - because they lose the opportunity for a reasonable life.
One option would be a subdivision, that is, people would own the land, but that is beyond the
scope of this bill. It would require considerable thought and would involve many legal ramifications because of the communal nature of residential parks. That option, however, would get around the problems of tenants having no say and of rising land costs. After a great deal of searching I found that the figures for reasonable rents and what changes had been made to rents were not available. I am concerned that I must find these figures myself. It is all very well for honourable members to prepare anecdotes and make emotional statements. Often we are lobbied by, at one end, sobbing people who cannot afford to do this or are being stressed by that, and, at the other end, well-dressed people in suits who tell us that everything is fine and we should butt out of the problem.
When bills are presented to the House, analyses such as my back-of-an-envelope calculations should be presented systematically. Rent rises in residential parks seem to have been greater than rent rises in other residential accommodation. I am inclined to think the imbalance should be redressed in favour of residents. I am pleased that the bill will be reviewed in five years. That is necessary to ensure that there have been no adverse consequences. Earlier I referred to rents only being set by the market. Some owner representatives have said that the value of residential premises should not be taken into account when rents are set. I was not sure what "residential premises" meant in this case.
Does "residential premises" mean the amount of improvement or the quality of the dwellings that residents have put on their sites, or does it mean the value of the common residential amenities provided by the park owner? If it means the park improvements the situation would be balanced if neither the improvements nor the quality of the dwellings were taken into account. However, I do not imagine that that is what it means. Owner representatives have said that the frequency of past rental increases should not be considered. Certainly, if there is a period of catch-up rent rises because there were long periods in which rents did not rise because the park owner did not keep up with the market, as it were, that might be reasonable and perhaps should not be considered.
Morally, the conduct of parties should not set the rent. If people are not courteous to each other or they do not give notice to others, that should not affect the economic value of the site. Certainly, awareness that the conduct of parties might affect the rent determination may have a positive effect on the behaviour of people towards each other in their day-to-day life in the residential park. Interestingly, no-one has protested about the consumer price index [CPI] being used in rent determinations. As I said, the CPI does not necessarily reflect land use rate, although it reflects rentals fairly well, presumably because rentals are such an important factor in changes to the CPI.
I am concerned that the bill fails to address problems with mailboxes. Honourable members would recognise the sanctity of mailboxes in terms of privacy. It is no-one’s business what letters a person receives or sends. In strata title systems no-one would dream of interfering with a mailbox, nor would a person living in a unit on the tenth floor not have a mailbox on the ground floor. Mailboxes should be provided for people who live above the ground floor. Obviously, park owners and residents will have to negotiate what mail facilities are provided. The suggestion that park owners will have the final decision on the mail facilities is outrageous.
Another area that has been flagged as causing problems is on-the-spot fines. Some park owners feel that on-the-spot fines are outrageous and would make them liable to sabotage followed immediately by an inspection. Park owners are concerned that on-the-spot fines will be imposed on them but not on residents.
On-the-spot fines work well in unsafe workplaces. In fact, workers are fined if they breach safety standards at the time the inspector is present. Perhaps that aspect could be examined also in relation to this bill. On-the-spot fines do not appear to be a big issue in industrial relations, and I am sure that they would not be a big issue between park owners and residents especially regarding the setting of rents. The Australian Democrats have misgivings about some aspects of the bill, but on balance we think it is worth supporting. We are concerned that the review should be five-yearly to make certain that there have not been any adverse effects. We support the bill.
The Hon. J. S. TINGLE [4.00 p.m.]: I shall speak only briefly to the Residential Parks Bill. The debate has proceeded for far too long. Indeed, I am surprised at the length of the debate, because a bill of this type and standard should have had a much easier passage through this House. The Shooters Party supports the bill unequivocally, overwhelmingly and without any reservation. The bill is very much overdue. I compliment the Government on introducing it. It is fair also to pay tribute to the honourable member for Wyong in the other place, who has been persistent in trying to get these provisions in place for many years. This is important legislation.
Honourable members may have forgotten that not that many years ago permanent residents were not allowed in a caravan park or residential park. Limits were applied to the amount of time people could stay in the parks. The law was changed and permanent residence became a crucial option for many people who really had no alternative for permanent accommodation. A great many comments have been made during this debate and I shall not detail them.
The Hon. J. F. Ryan expressed to the House what could only be described as a heartfelt plea for struggling landlords who apparently are all teetering on the brink of penury! He talked, quite rightly, about not having rent control, but perhaps that is rather different to what is being debated. I do not believe that residential park housing can be compared with accommodation in a normal home on a quarter-acre block with a Hills clothes hoist, a Victa mower and all the rest. That comparison is irrelevant!
The Hon. Dr B. P. V. Pezzutti presented what could best be described as an aesthetic view of the perils of overrestrictive laws wiping out parks and causing the disappearance of residential parks up and down the coastline. He said he had spoken to a number of people who live in residential parks. I am sure he has because he is a conscientious member and I know he cares about these issues. I know many people who live in these parks. I know also that they live in continual uncertainty about future rent amounts and tenure, and about costs being imposed without warning.
A widower friend of mine lives in a residential park on the central coast. He pays slightly more than half his pension to remain in his home. He keeps asking me, "What’s next? What will the next increase be? Will I be able to afford it?" This bill is absolutely vital to help restore the balance for people like him. This bill is not about wealthy people, nor is it about those who can afford a sudden change to their economic circumstances. This bill refers to the little people, the battlers. They need protection, security and certainty for their future tenure and costs. For heaven’s sake, let us cut the cackle and give them the protection!
Reverend the Hon. F. J. NILE [4.03 p.m.]: The Christian Democratic Party is pleased to support the Residential Parks Bill. The bill will introduce tenancy and associated legislation specifically related to the caravan park and manufactured home estate lifestyle. The bill will also incorporate the current and revised provisions of the mandatory Caravan and Relocatable Home Park Industry Code of Practice. Honourable members have heard that the bill emerged following a review of residents’ concerns that was carried out by the Tenancy Commissioner in 1997 and from the subsequent report and recommendations.
The inquiry was set up in 1997 and a working party was established in June last year to undertake that review. The park industry and residents were represented on that working party together with representatives of the Department of Local Government, the Department of Water Conservation, and the Department of Urban Affairs and Planning. Each department has an ongoing interest in park and estate accommodation. The working party was chaired by a representative from the Department of Fair Trading. An issues paper was prepared and more than 2,000 copies were distributed to the public for feedback.
The issues paper dealt with residents’ concerns and matters of particular interest to the industry. Written submissions were sought and more than 100 were subsequently received. Public discussion forums were held at Wyong, Nowra and Coffs Harbour, and those forums were attended by more than 200 residents, park owners and managers. This bill has been the subject of much consultation during its preparation. The Tenancy Commissioner’s report was drafted after detailed consultation with all key stakeholders. Following the report’s release and development of the bill, further opportunities were provided for constructive input from resident and industry interests.
Industry views were given close consideration and discussions were held during the final drafting of the bill. The Minister’s office and the Department of Fair Trading had several meetings with industry representatives during August, September and October. In some correspondence we received from park owners and managers it appears that they had not expected the bill to move so quickly. However, they should have been aware that this session of Parliament is rapidly coming to an end. Honourable members were advised that the sittings would most likely conclude at the end of November and that the first week of December would be set aside as a reserve sitting week.
Those involved in the industry should have realised that the bill has to be introduced at this time if it is to be passed by both Houses. The State faces an election on 27 March and when this parliamentary session concludes it is almost certain that Parliament will not sit again prior to the election, if the pattern that has developed over the years is followed. Of course, the Premier could
advise the Governor to recall Parliament for an emergency, but that is unlikely. For that reason, all interest groups should have been aware that the legislation would be dealt with at this time. Therefore, the bill is being dealt with according to the timetable.
The name of the bill has helped to update the popular concept of caravan parks. Over the past couple of years many people would have noticed changes in caravan parks after permanent accommodation was permitted. Permanent accommodation belongs to the tenant and not the park owner, as applied in caravan parks. Caravan parks always brought to mind a temporary holiday or stay. When I received a minister’s stipend my family made much use of caravan parks for cheap accommodation for the Christmas and January holiday season.
People live in residential parks for a variety of reasons. Some enjoy the lifestyle, but others find that they are forced into it because economic conditions, unemployment or insufficient financial reserves prevent them moving into retirement accommodation or a private home. The residential park provides a new opportunity.
I have received submissions from a number of retired ministers on low stipends who find it far more convenient and practical to move into a residential park. One such letter was from the Reverend James Rawson-Smith of the Heritage Estate, Toukley. Reverend Rawson-Smith’s letter opened a window onto the practical difficulties experienced by a person in his position. He stated that he had been a minister of the Uniting Church in Australia and also a Christian school minister. He underwent a coronary bypass and subsequently had to retire from all duties. He and his wife sold their home at Parkes and settled into what they believed would be a peaceful life in the Heritage Estate, Toukley. However, their peaceful life changed. In his letter, Reverend Rawson-Smith stated:
Financial conditions of the estate seemed just right for us after consultation with the then manager of the Park - a beautiful setting and peace at last. Having no income other than assistance from The Department of Social Security we felt we could survive financially.
Reverend Rawson-Smith’s experience is representative of the problem faced by many people in a similar financial position. His letter continued:
Much to our dismay since our residency, we have received three raises in rent and now extra charges for excess water. We find this added expense very difficult to accommodate. It could break us! Sadly the above increases are making it very difficult for my wife and I to go on living here.
If they decide to move they face the high cost of moving, estimated to be as high as $15,000. But where will they go? Where else would they be happy? Where else would they be treated fairly? After all that expenditure they could end up being no better off and find that they have moved from the frying pan into the fire. The bill is designed to provide protection, security and peace of mind to park residents, who are usually retired people. They have experienced stress coping with life in general. They do not need uncertainty about rent levels and other requirements hanging over their heads. The stress never leaves them; they live in an atmosphere of stress. Reverend Rawson-Smith’s letter finished with this point:
My wife and I are now asking ourselves can we afford to live here. This opens up yet another can of worms as there are very binding terms as to resale which make it nearly impossible to sell - relocation of home to another site costs approximately $10,000.
Some have said even up to $15,000. To continue:
There are uncertainties which don’t add up to security. Our car is also deteriorating. We cannot afford to have it insured as vital as this is. We find ourselves without food at times, and shudder to think that our expenses will soon be unable to be met. We know of residents who depend on food parcels from Social Security. I am equally concerned with the residents who describe a similar position. They feel threatened. They do not feel respected or secure. They are not just occupants - they are precious people. Souls. People who are precious to God. Most cannot debate issues. Most cannot easily express the way they feel. But I see it - anxiety and insecurity - possibly grief, at the time of their lives when they should feel security and happiness. It is my prayer that this will be so.
That very sad letter illustrates the human side of the problems addressed by the proposed legislation. Those problems are not minor. There are now more than 940 residential parks and manufactured home estates in New South Wales offering 25,000 permanent tenancy sites. Currently about 50,000 people are permanent residents of parks and estates. There is a need to provide protection for those residents and for future residents. Residential park housing has not plateaued; it is growing and will continue to grow because of economic situations and employment downsizing, that is, people losing their jobs through redundancy.
Many people who have assisted the Christian Democratic Party thought they were in secure jobs but in their fifties found that their jobs were made redundant due to the downturn in the economy. Many of those people will have no option but to move into a residential park. It is right and proper that the proposed legislation should anticipate the growth of residential parks as major providers of accommodation. There must be rules and regulations
to control both the owners and those who live in residential parks. The Hon. Dr A. Chesterfield-Evans warned about the effect of the measure.
Pursuant to sessional orders business interrupted. The House continued to sit.
Reverend the Hon. F. J. NILE: I ask the Government to carefully monitor the operation of the legislation. People who invest in residential parks and become owners should not be subject to indirect effects beyond the objects and intent of the bill. I have received letters from park residents stating that if the bill is passed they will sell up. I do not know whether such statements are threats or reflections of reality. The Government must monitor the application of the legislation to ensure that residents are not forced to sell. We do not want to pass a perfect bill, only to find that it results in fewer residential parks and nowhere to go. I seek an assurance from the Government that it will closely monitor the operation of the legislation. I trust the Residential Tenancies Tribunal to monitor rent rises and similar matters. The Government, however, must ensure that decisions are fair to all parties. This will enable the industry to be workable and well maintained, and to expand and achieve its purpose. We support this bill.
The Hon. M. J. GALLACHER [4.18 p.m.]: On behalf of the Opposition, I wish to put on the record points of clarification of the Residential Parks Bill. Contrary to what has been said in the Parliament and in the wider community by the Government and other interested parties, the Opposition does not oppose, nor has it ever opposed, passage of the bill. References and press releases by certain members of Parliament have been factually incorrect and I will endeavour to expose some of those falsehoods during the debate. The Opposition was concerned from the outset about the process by which the proposed legislation was being rammed through the exposure stage. The community was allowed eight days to examine an extensive bill - in fact 120 pages of legislation - before it was put to the lower House.
To see the mistake in presenting this bill for community observation for such a short time, one needs only to look at the number of amendments the Government had to make in the lower House. Had the bill been available to the community for a longer period - had it been released earlier - everyone would have had an opportunity to thrash out the issues, including residents, owners and people who may move into parks in the future. Crossbench members will move the majority of the amendments during the Committee stage. That is an important fact - the Government has claimed that Opposition members will do whatever it takes to defeat the bill or, at the very least, hold it up until Parliament is prorogued. The Government has attempted to muddy the waters on the issue. One particular Government member has gone out of his way to confuse the issue.
The Attorney General said that the bill is the result of consultation - consultation, I am proud to say, that the Opposition participated in. The honourable member for Gosford and I attended a number of meetings - not meetings organised by the Opposition or in Opposition electorates - to ensure that people heard both sides of the argument, to ensure that they heard the truth. Some Government members have chosen to avoid the truth in this debate and have inadvertently forgotten the Opposition’s position on the bill. Some members, such as the honourable member for Wyong, survive purely in a world of conflict.
The Hon. B. H. Vaughan: Who is he? What is his name?
The Hon. M. J. GALLACHER: I cannot remember his name; he has been so insignificant during this debate. I have attended meetings with the honourable member for Wyong in his electorate, not to speak on the issue or to confuse the residents but to listen. A few weeks ago I attended yet another public meeting of tenants of manufactured home parks, again in the electorate of Wyong. Prior to that we met with representatives of the Parks and Village Tenants Association, including its president, Jill Johnson.
The Government, particularly the honourable member for Wyong, has told people that the Opposition is working for the park owners at the peril of the tenants. I can honestly say that as a member of Parliament I have never met or spoken to any owner of any manufactured home park or caravan park. I challenge anyone in this Chamber or outside it to say otherwise. I note that the honourable member for Wyong is scribbling down what I just said. I challenge him to go find someone who will tell him otherwise: he will be gone for a hell of a long time.
The DEPUTY-PRESIDENT (The Hon. J. R. Johnson): Order! The Chair does not recognise persons outside the Chamber; nor should the Hon. M. J. Gallacher.
The Hon. M. J. GALLACHER: When I heard the honourable member for Wyong say in another place that I, as a member of the coalition,
was going to receive money from park owners for killing off this bill and allege that the Opposition is corrupt I wondered whether he was a brave man who was fighting for his constituents, and using parliamentary privilege to do so, or whether it was the act of a desperate man. In 1991 the honourable member promised the residents of manufactured home parks in his electorate that he would introduce a private member's bill to protect them. He said that in 1991 - and we are still waiting for that bill.
Interjection from a crossbench members claims that members have it before them today. If they believe that this bill belongs to the honourable member for Wyong they should also look for the fairies at the bottom of the garden. This bill belongs to all members of this Chamber who are supporting it today. This bill has been handed to the honourable member in an attempt to shore up his position in the lead-up to the election. He has been a member of Parliament since 1991, and in the last weeks of this Parliament he has grabbed hold of this bill -
The Hon. R. S. L. Jones: Point of order: The honourable member is imputing improper motives on the honourable member for Wyong, saying he has been given this bill to shore up his standing in the electorate. I ask the honourable member to withdraw that imputation.
The Hon. D. J. Gay: To the point of order: Despite the protestations of the independent Labor member of this House, a statement like that does not impugn anyone’s name. There is no point of order on this issue. The statement can be made; it does not impugn anyone’s good name. My colleague has made a realistic statement in good faith. I do not believe it casts aspersions on anyone and it is not something that, within the standing orders, he should be asked to withdraw.
The Hon. J. W. Shaw: To the point of order: I think the honourable member is overstepping the line to some extent.
The Hon. D. J. Gay: What is your point of order?
The Hon. J. W. Shaw: It is not my point of order; a point of order has been taken and I am speaking to it.
The Hon. R. B. Rowland Smith: Why don’t you say so?
The Hon. J. W. Shaw: I have. If the honourable member followed the debate it would be clear to him that that is what I am doing. The Hon. M. J. Gallacher does seem to be impugning the motives of a member of the Legislative Assembly. There is no basis for thinking that the honourable member for Wyong is doing other than vehemently, effectively and efficiently representing the interests of his constituents. I do not think he should be subjected to the kind of attack. The honourable member ought to desist.
The Hon. J. H. Jobling: To the point of order: Debate in this Chamber is usually robust and wide-ranging. In this debate the Hon. M. J. Gallacher has simply asked a series of questions to raise a point. No imputation is being made by the honourable member. That is a practice that most other members of the House have followed from time to time. I put it to you that he has not transgressed the standing orders.
The Hon. B. H. Vaughan: To the point of order: I support the Attorney. When one considers that the Hon. M. J. Gallacher is a member of a party which, on 28 August 1991, supported no-fault eviction, the statement made by the Attorney should be listened to.
The DEPUTY-PRESIDENT: Order! Does the Hon. M. J. Gallacher wish to address the Chair on the point of order?
The Hon. M. J. GALLACHER: No.
The DEPUTY-PRESIDENT: Standing Order No. 80 reads:
No member shall use offensive words against either House of the Legislature, or any member thereof; nor against any Statute, unless when moving for its repeal.
The honourable member should desist from making personal attacks on a member of the other House.
The Hon. M. J. GALLACHER: It is important to recognise that some members of the Government - one or two in particular - love conflict. Some members do all they can to make Liberal Party members appear to be servants of rich landowners. I wonder how many people in the gallery today are here at the insistence of one or two members of the Government, perhaps even the honourable member for Wyong. I wonder how many are here under the belief that members of the Opposition will be exposed as people who hate tenants, people who work solely for landlords, and people who are concerned only with the interests of the park owners. I wonder how many people in the gallery were told that as they made their way to Sydney from the central coast and other locations.
Earlier the Hon. Dr Meredith Burgmann interjected and said, "What would the Opposition know about people who live in caravan parks?" Coming from her that is quite an interesting remark. All honourable members know that I used to live in the housing commission at Mount Druitt in western Sydney. I am proud of my background. When I left the housing commission my family moved to Scotland - my place of birth - and there we lived in a caravan on the east coast in Fyfe shire next to the North Sea.
The Hon. J. H. Jobling: Did you wear a kilt?
The Hon. M. J. GALLACHER: We could not afford kilts. We were a poor family - very hardy, but very poor.
The Hon. D. F. Moppett: You could have wrapped a tea towel around you.
The Hon. M. J. GALLACHER: I could not; I am too hirsute. In the 1980s, upon returning to Australia, I moved to the central coast where I lived in a caravan park at Toowoon Bay. I travelled to Darlinghurst every day to work - quite an extensive journey considering that, in those days, there were no electric trains from Gosford. I used to go out of my way to catch the diesel train from Wyong shire. I loved the area but, more importantly, I loved the lifestyle; there was nothing better than living in the park at that time. I left Sydney to move to Toowoon Bay. I could quite easily have remained in Sydney. However, I moved to that area because of the lifestyle. So it is incorrect for Government members to state that members of the Opposition do not know what it is like to live in a caravan park.
I am sure that most honourable members would be interested to hear of the experiences of my chief of staff, Suzanne Fosbery. Suzanne has an interesting background. I am sure that all honourable members would be interested to hear that members of the Liberal Party are aware of the concerns of those who live in manufactured home parks and caravan parks.
When Suzanne was only 18 months old she and her family moved to Tasmania where they were unable to obtain accommodation. She lived with her parents and her three-year-old brother in a six by four foot box trailer. That was the only accommodation that they could find. I can hear some honourable members tittering away. I hope that they are not laughing at the life experiences of Suzanne Fosbery, my chief of staff, who worked her way to the position of respect that she now enjoys. She lived in that box trailer in Tasmania in winter, at a time when her father was looking for work in the mining industry.
Suzanne’s life did not improve to any great extent when she moved from Tasmania to Townsville in Queensland. She moved into far more palatial accommodation than the six by four foot box trailer in which she lived in Tasmania - a 16-foot caravan. She and her family lived on site at the Greenvale nickel mine. When Government members in this place and the other place say that Opposition members do not understand what it is like to live in a caravan park they should look not only at my life experience but at the life experiences of our staff and other people.
Opposition members do have an understanding of that sort of lifestyle. We are doing what we believe to be the right thing in the interests of all those concerned in this debate. When I spoke to Suzanne earlier today she told me that, when she lived at Greenvale nickel mine, it was a 12-hour trip just to get a litre of milk and a loaf of bread. It took six hours to drive into town and six hours to drive back. Suzanne has also lived in caravan parks on the central coast; so she fully understands the issues that have been raised in this debate. I am proud to say: So, too, do I.
When I hear the honourable member for Wyong allege that we are not interested in tenants’ concerns, I wonder what makes him tick. Most sensible Government members would prefer to thrash out these issues with Opposition and crossbench members. That is not true of the honourable member for Wyong. He and other Government members do not like and are not concerned about people like me. They are not concerned about the battlers; the people who aspire to a better lifestyle for themselves and their families.
What would some Government members know about life in a caravan park or a manufactured home park? One or two members in the other place who live in the central coast area - I will not name them for fear of impugning their excellent reputations - are the wealthiest members between Sydney and the Queensland border. They own quite a number of homes on the central coast. In fact, they are landlords - the scurrilous people that members of the Government say that the Opposition is trying to protect.
What hypocrisy for Government members to state that Opposition members are looking after landlords! Some honourable members have done very well in life. Some public servants have done very well. The honourable member for Wyong
should be thankful that the Minister for Community Services, the Hon. Faye Lo Po’, who supports the passage of this proposed legislation, graciously gave responsibility for the carriage of this bill to him. Backbenchers should be given such an opportunity. However, we must remember that that came about as a result of the lobbying Grant McBride, a senior Government member who lives on the central coast.
Grant McBride obviously lobbied Faye Lo Po’ to give the honourable member for Wyong this opportunity. I am sure that the honourable member for Wyong would join me in congratulating the honourable member for The Entrance, who is sure to be given an opportunity to speak in debate on the bill. He has been generous to the honourable member for Wyong in relation to it. I understand the concerns of residents in manufactured home parks.
The Opposition is committed to protecting those who choose this lifestyle. We have endeavoured to do so without politicising the issue. But this is not the first time that the Government has endeavoured to push legislation through this Chamber in the dying days of the Parliament. All honourable members would remember the Warnervale airport bill. Crossbenchers and members of the Opposition were told that the bulldozers were about to roll; that they were at the end of the runway; and that the diesel turbines had been switched on.
That legislation was rammed through this House in September 1996. In December 1996, some months after the legislation was pushed through, we were told that the bulldozers were about to roll. I informed the Government and, in particular, the honourable member for Wyong, that the legislation had not been proclaimed. He had gone to sleep and had forgotten about it. So, if the bulldozers were about to roll, what happened between September and December?
It was not until the Opposition brought this matter to the attention of the honourable member for Wyong that he woke up. I say to individuals in the gallery: If this legislation is passed today, they must ensure that the honourable member for Wyong does not again go to sleep. He said in the other House that he wanted to ensure that this proposed legislation was passed by Christmas. The honourable member for Wyong cannot afford to put this bill in the too-hard bin, unproclaimed. Mr Deputy-President, I ask the people in the gallery, through you -
The DEPUTY-PRESIDENT (The Hon. J. R. Johnson): Order! The Chair does not recognise any person outside the Bar of the House or in the public gallery. I have asked the Hon. M. J. Gallacher not to recognise such persons.
The Hon. M. J. GALLACHER: Mr Deputy-President, I apologise to you for breaching your ruling. I am enthusiastic about this bill and I want to ensure that we get the best deal we possibly can for those people living in manufactured home parks. I will not again breach your ruling. More than 80 amendments to this bill will be moved by Opposition and crossbench members. The amendments are necessary because the bill does not go far enough in protecting park residents. Had the Government allowed residents and other interest groups a longer time to examine the bill there may have been no need for such lengthy debate in the Chamber.
The Government should perhaps think of this bill as an example that when it wants passed through the Parliament a bill that is important to all parties it should first consult and thrash through the issues in order that a bipartisan approach may be adopted. The Opposition is pleased to support the bill, however it is necessary to rectify shortcomings that would prevent the legislation from fully protecting the rights of those concerned. In the best interests of all involved, Opposition and crossbench members will be moving amendments at the Committee stage.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [4.41 p.m.], in reply: I regret the element of hypocrisy that has been apparent in this debate. The Opposition has expressed support for the bill but proposes to move amendments that would essentially negate it. In this debate the element of hypocrisy one would expect in political debate has been transcended. For well-intentioned Opposition members to say that they support the bill but also support the amendments is absurd. Opposition members are caught in a contradiction, a conflict of disloyalties. Opposition members either support the enhancement of the rights of tenants of residential parks or they do not. If Opposition members support the amendments, as I assume they will, they will essentially be saying that the bill is of no effect and should not be supported.
I thank honourable members who have spoken on this bill and have recognised the unique features of park and estate tenancies. Park tenancies are tenancies in which the majority of residents live in their own dwellings but rent the land on which their homes sit. Their tenancies are different from conventional tenancies in which the dwelling forms part of the land and belongs to the landlord. Another
significant feature in which park tenancies differ from conventional tenancies is the community nature of residential park lifestyle. The bill addresses the community nature of the lifestyle by providing for park liaison committees and park disputes committees.
The bill includes provisions from the industry code of practice, enhances those provisions and for the first time attaches penalty notices for non-compliance. Unique features of park and estate living addressed in the bill include the provision for the installation of individual mail facilities, the provision that the responsibility for the maintenance of trees lies with the park owner, and expanded powers for the Residential Tenancies Tribunal to address the enhanced rights of residents. Water and electricity charges have been a source of uncertainty and many disputes. The Residential Parks Bill finally clarifies that issue in a fair and balanced way.
The bill addresses the anomaly under which in the one park some residents pay for water but others do not - even though all residents are individually metered - simply because of differences in tenancy agreements. Park owners and residents will have two years to prepare for the changes, and any resident who did not previously have to pay for water but has to pay for it after the year 2000 will be able to apply to the tribunal for a rent reduction. It is made clear that park residents will pay the same for their water and electricity as other domestic householders. By far the single most important issue for residents of park and estate living is rent and whether they will be able to continue to afford to live in the community lifestyle.
Forty per cent of residential park residents are aged over 60 years. Eighty per cent of residents are not in paid employment, with the majority of residents being on fixed incomes. If a resident can no longer afford to live in a park, the cost incurred just for the transportation of his or her home can be as much as $15,000. Residents feel - I think justly - that they are a captive market. Those are the compelling reasons that led to one of the most important reforms in the bill. The bill provides additional factors that can be considered by the tribunal in an excessive rent case.
Those additional factors include a general price index, which can be the consumer price index; the frequency and amount of previous rent increases; the conduct of the parties; and comparable rents in the same park. General market rent level will remain an important consideration. However, the tribunal itself has expressed difficulties in applying the current criteria to parks and estates because the market rent level is not easily determined. In some cases there are no other comparable parks in the vicinity. Providing additional factors for the tribunal’s consideration is hardly rent control. I deny that the bill can be characterised as a rent control measure. I do not believe that anyone who has considered this bill objectively and in detail would characterise it as a rent control measure.
The bill is a measure of protection, it is a safeguard for residents of parks. The bill finally recognises the special nature of park and estate tenancy by providing a unique legislative framework that strikes a balance between residents and owners. The bill ensures the continued appeal and viability of park lifestyle. I have visited a residential park and seen that lifestyle for myself, and I am able to understand that people - particularly in retirement - are attracted to it. The House ought to be sympathetic to the needs and the rights of residents, and balance those against the rights of park owners. This bill strikes the right balance and achieves fairness between the competing interests.
Motion agreed to.
Bill read a second time.
The Hon. R. S. L. JONES [4.48 p.m.], by leave: I move my amendments Nos 1 to 6 in globo:
No. 1 Page 2, clause 2, line 7. Omit ", except as provided by subsection (2)".
No. 2 Page 2, clause 2, lines 8 and 9. Omit all words on those lines.
No. 3 Page 5, clause 3, lines 3-17. Omit all words on those lines.
No. 4 Page 7, clause 5, lines 6-11. Omit all words on those lines.
No. 5 Page 8, clause 6, lines 3 and 4. Omit "(not being premises ordinarily used for holiday purposes)".
No. 6 Page 8, clause 6, line 11. Omit all words on that line.
Amendments Nos 1 and 2 are designed to give effect to changes later proposed in relation to bidding requirements for water charges. The aim of these and amendments to be moved later is to ensure that tenants are charged fairly for water they have consumed, whether they are billed on an excess
water system or on a user-pays basis. In addition, when water charges have been part of the rental payment in a residential tenancy agreement tenants should have the right to recover losses in the event that water charges are separately levied.
Amendments Nos 3 to 6 are designed to ensure that people who are long-term residents of parks and villages but whose principal place of residence is not the park have their rights and obligations regulated by the legislation. As the bill stands, those tenants are excluded, even though they may incur similar expenses and losses to their neighbours. It is unfortunate that these amendments will not receive the support they deserve from other honourable members.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [4.50 p.m.]: The Government has given the amendments anxious consideration but we are unable to support them. We have a package which is beneficial to the residents and we are not persuaded that the additional matters that the honourable member seeks to raise by the amendments are appropriate for the bill.
Part agreed to.
The Hon. R. S. L. JONES [4.52 p.m.]: I move amendment No. 7 circulated in my name:
No. 7 Page 20, clause 24, line 11. Insert "and the common areas of the residential park" after "only)".
It should be clear that the park owner is responsible not only for cleanliness and repairs to the residential premises but also for the common areas and common goods, services or facilities to be provided to the residents. I ask honourable members to support the amendment.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [4.52 p.m.]: The Government can support the amendment. While the definition of "residential premises" in clause 24 appears to include common areas, the amendment will put that position beyond doubt.
Amendment agreed to.
The Hon. R. S. L. JONES [4.53 p.m.]: I move amendment No. 8 circulated in my name on sheet C-122C:
No. 8 Page 22, clause 27, lines 10-14. Omit all words on those lines.
Clause 27(3) was not a provision under the Residential Tenancies Act 1987 which this clause is meant to replace. Its effect will be to allow a park owner to unreasonably withhold consent for residents to make visible alterations or additions to their homes provided there was previously some general disclosure of any restriction.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [4.53 p.m.]: This is not an amendment which the Government can support.
The Hon. R. S. L. Jones: I think the Government is supporting it.
The Hon. J. W. SHAW: We are profoundly ambivalent! Park owners who disclose to residents when they enter the park that certain types of structures are not permitted should have the right to refuse a later request for the erection of such a structure. Ultimately, disputes over unreasonable refusal are matters for the tribunal. Despite my preliminary remarks that the amendment is not supported by the Government, if it be the feeling of the Committee that the amendment finds favour then so be it. I acknowledge some of the force of the argument by the Hon. R. S. L. Jones.
Amendment agreed to.
The Hon. R. S. L. JONES [4.55 p.m.], by leave: I move amendments Nos 9, 10, 11 and 13 circulated in my name:
No. 9 Page 28, clause 34, line 32. Omit "an amount payable". Insert instead "those charges payable by a direct customer of a water supply authority".
No. 10 Page 29, clause 36, lines 25-26. Omit "in accordance with the regulations by the relevant water supply authority". Insert instead "by the relevant water supply authority in accordance with the regulations".
No. 11 Page 30, clause 37, line 5. Insert ", but not including installation costs" after "charges".
No. 13 Page 31, clause 38, line 23. Insert "(other than excess water charges)" after "charges".
These amendments are aimed at clarifying the definition of "excess water" and ensuring that residents are fairly charged for the water they have consumed. They are also aimed at ensuring that where a billing system changes to a user-pays system the residents are able to apply to the Residential Tenancies Tribunal for an order where the amount is excessive because of a withdrawal of
services - that is, where the rent previously included water charges. In addition, a park owner should be required to make electricity available to each resident, and clause 37 should be amended to provide that the resident cannot be charged for installation costs.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [4.56 p.m.]: The Government will support the amendments.
The Hon. J. F. RYAN [4.57 p.m.]: The Opposition also supports the amendments. The shadow minister in another place made remarks that were not unsupportive of the concept of billing tenants individually for utility charges where that is possible. That is a far more desirable situation than the park owner somehow dividing an in globo bill among the tenants. Obviously, individual metering can be fairly expensive.
The Hon. R. S. L. Jones might remember our experience on the committee relating to the Sydney Water Board. Individual billing and individual metering were canvassed in some detail and it was pointed out how complex and expensive it could be. That was behind the Opposition’s reservations in not proposing such amendments. However, since the Government has agreed to support the amendments I imagine that the Government is in possession of advice as to how that might be done in a manner which will not prove excessive to park owners or residents. The Opposition is pleased to support the amendments.
Amendments agreed to.
The Hon. J. F. RYAN [4.58 p.m.], by leave: I move Opposition amendments Nos 1, 2, 3, 4, 5, 8 and 9:
No. 1 Page 30, clause 37, lines 2 and 3. Omit "The park owner and resident under a residential tenancy agreement may agree that it is a term of the agreement". Insert instead "It is a term of every residential tenancy agreement".
No. 2 Page 30, clause 37, line 27. Omit "contain details of the following". Insert instead "comply with the Code".
No. 3 Pages 30 and 31, clause 37, line 28 on page 30 until line 5 on page 31. Omit all words on those lines.
No. 4 Page 31, clause 37, line 11. Omit "any". Insert instead "the".
No. 5 Page 33, clause 38, lines 2 and 3. Omit "relate to the payment of water charges by the resident". Insert instead "contain the matters that the park owner is required to disclose in a bill under subsection (3)".
No. 8 Page 37, clause 45, insert after line 17:
(c) any fees payable under this Act, and
No. 9 Page 38, clause 48, line 27. Insert "or address" after "number".
The amendments relate to the imposition by park owners on residents of utility charges, be they for water or electricity. As was explained in the second reading debate by various members, this can be a difficult point of conflict between residents and park owners because frequently the park owner is given a bill for one large amount and it is not easy to distinguish which resident has incurred the charge or whether it is a charge that relates generally to the overall maintenance of the park. For example, a bill for the watering of common areas might be borne by the landlord or shared amongst the residents. Whilst the Opposition entirely supports the thrust of the bill which seeks to make sure there is transparency with regard to the imposition of charges and that tenants and residents should have the capacity to examine documentation relating to the bill, it believes that the legislation is unduly prescriptive in terms of the amount of detail which the park owners are required to provide to the tenants.
Amendments Nos 1 to 5 relate particularly to the disclosure of account particulars by the park owner for payment by residents. The Opposition agrees that there is no need to disclose a park owners’ entire financial accounting in relation to water, so long as residents are provided with clear and unequivocal details from the receipt that the park owner has been charged by the supplier and is passing the charges on to the residents. There is no need to go into the complexity of the entire water charges for the whole park. For example, a park owner might have charges relating to up to 300 sites in a park and it may be possible that particular residents ask for disclosure of the water bills of other residents. There might be some privacy issues with relation to allowing that amount of disclosure.
Opposition amendments Nos 8 and 9 largely relate to details of electricity and electricity charges. Amendment No. 8 relates to the collection of electricity and water charges referred to throughout the bill. The Opposition’s amendment seeks to ensure that the park owner will be able to collect those charges. Without the insertion of the words proposed by our amendment it may be that the park owner is unable to collect water and electricity charges as fees payable under the Act. Omission of that provision would appear on the face of it to render a large part of the bill unworkable and would cause enormous difficulties for tenants, quite apart from the landlords, if that question had to go to the tribunal or the Supreme Court for definitive determination.
With regard to amendment No. 9 the Opposition believes that the Government is pedantic if it does not allow the amendment because it simply allows a bit of discretion in regard to the detail of the addresses appearing on official documentation. A document received by a landlord relating to a bill may in some small respect not be an accurate record of the address, and tenants may be able to challenge the ability of the landlord to levy residents for those charges. The Opposition believes a small amount of flexibility in that regard will make the bill more workable. The Opposition commends the amendments to the House.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [5.03 p.m.]: The Government opposes these amendments which are antithetical to the purposes of the essence of the bill which is in favour of disclosure for the residents. The various amendments really negate that particular purpose. Amendment No. 1 is unnecessary as most residents already agree to pay for electricity consumption under their tenancy agreements. In fact, the standard tenancy agreement has a clause providing that the resident will pay for this essential service. However, the way should be left open for other negotiations to take place, if parties want to do that. The circumstance may arise where the park owner, despite having installed a meter on the site, does not wish to charge the resident directly. The Opposition amendment would prevent such arrangements taking place.
Amendments Nos 2 and 3 would remove the transparency of information which must be included in electricity accounts given to residents. Residents would have to know the precise details of the code to know what information they are entitled to in their accounts. It is important that the legislation spells out what vital information residents must receive on their receipts. The bill presently removes any doubts about what the code requires. Residents will refer to the residential parks legislation to inform themselves of their rights. The Government believes that electricity account details need to stand out. If the current code and the required details set out in accounts changes it would be a simple matter for the residential parks regulations to be amended accordingly.
In relation to amendment No. 4 the change of the word "any" to the word "the" might seem to the casual observer a rather esoteric change. However, the Government says that it is necessary to ensure that residents only have access to the park owner’s records concerning the resident’s own electricity payments. That amendment was made in the Legislative Assembly and, therefore, the Government believes there is no need for a further amendment. The privacy of the park owner’s arrangements with the supply authority have been provided for in the Government’s own amendments in the Legislative Assembly and the Government regards the amendment as unnecessary.
Amendment No. 5 is also unnecessary. The amendment made in the Legislative Assembly addresses the subject of the Opposition’s amendment by ensuring that the only records residents are entitled to examine relate to their own water charges and not to any arrangements the park owner may have entered into with the local water supply authority. In relation to amendment No. 8 the Government says that while it considers that fees or amounts payable by residents under the Act are obviously payable, that does not need to be specifically spelt out for the sake of absolute clarity, and the amendment is unnecessary. Perhaps it does not matter one way or the other but since the amendments have been moved in globo the Government will oppose them in globo.
The Hon. R. S. L. JONES [5.08 p.m.]: I will not move amendments Nos 12 or 14.
The Hon. J. F. RYAN [5.09 p.m.]: I move Opposition amendment No. 6:
No. 6 Page 34, clause 39, lines 14 and 15. Omit "relate to the payment of water charges by the resident". Insert instead "contain the matters that the park owner is required to disclose in a bill under subsection (3)".
This amendment relates to the payment of water bills and seeks to have a level of flexibility so that there is no doubt about the capacity of the park owner to seek recompense for the payment of water charges which have been incurred by residents.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [5.09 p.m.]: The amendment is unnecessary. The amendment moved in the Legislative Assembly addresses the subject of the Opposition’s amendment by ensuring that residents are entitled to examine only those records that relate to their own water charges and not to any arrangements the park owner may have entered into with the local water supply authority.
Part as amended agreed to.
The Hon. J. F. RYAN [5.10 p.m.], by leave: I move Opposition amendments Nos 10, 11, 12 and 13 in globo:
No. 10 Page 41, clause 53, line 9. Insert "or methods" after "method".
No. 11 Page 41, clause 53, lines 11-16. Omit all words on those lines. Insert instead:
(7) If more than one method of calculating the amount of any increase of rent payable is set out in a residential tenancy agreement, the agreement must specify the circumstances under which, or the periods during which, each of the methods may be utilised.
(8) The Tribunal has no jurisdiction to make:
(a) an order under section 58 (Orders as to excessive rent increases or rents), or
(b) an order for a refund under section 54 (Tribunal may make orders for refund of overpaid rent where rent increase was not properly notified),
in relation to a rent increase calculated in accordance with any method for calculating such an increase that is set out in a residential tenancy agreement and that complies with subsection (7).
No. 12 Page 41, clause 53, line 18. Insert "or (7)" after "(6)".
No. 13 Page 42, clause 54, line 5. Omit "12". Insert instead "6".
These amendments relate to the calculation of rent. The Government and the Opposition have similar aims and accept that, given the limited negotiating powers of residents, there is a need to constrain the capacity of park owners to make increases in rent on a straight market-force basis. For the reasons outlined in the debate, we accept that there is not always the capacity to move one’s mobile home to another park if disagreement arises about rent.
However, the Opposition has a more flexible approach to the way rent might be calculated. Clause 53 sets out a series of specific items that might be considered in the calculation of rent. The Opposition takes a different approach. It believes that a park owner and tenant should be able to negotiate on how rent will be calculated and then fix the period for which the rent might apply. A whole variety of matters may be taken into consideration with regard to rent. It may include the consumer price index or improvements in the park. In many instances it might be determined on the relationship between the park owner and resident and the agreed length of time the rent will be in force.
It is not that the Opposition and the Government disagree that there should be a capacity to make rents predictable - in some respects the Opposition amendments allow for much more predictability even though there is greater flexibility. For example, the arrangements made under the proposed legislation can be changed if the consumer price index changes. There have been instances in our economy when significant changes have occurred in the consumer price index. In the way that mortgagees live in fear of changes in bank mortgage interest rates, residents might well keep a keen eye on the consumer price index and live in similar fear as to how their budgets might be affected if they are subjected to increases in rent on that basis.
The Opposition suggests that there should be a variety of matters relating to what should be included in calculation of the rent that are the business of the park owner and the resident. However, once a deal is struck - and it could be in place for 12 months, 24 months or five years - both parties must abide by that agreement, excluding exceptional circumstances. These are important amendments. The Government suggests that the Opposition supports the imposition by park owners of unjustified increases in rent, but that is not the case. There is simply disagreement about the method by which rents are calculated. The Opposition supports a need for certainty on the part of tenants, who should be able to predict from one year to the next what their rent will be and how it will affect their budgets. I commend the amendments to the Committee.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [5.15 p.m.]: The Government opposes these amendments. I shall deal first with amendment No. 10. This would place park residents back in the situation they face at present where they are not sure of the basis upon which future rent increases are to be calculated. They face a lottery of possible rent increase methods and are not able to anticipate how upcoming rent increases will be calculated. Tenancy agreements used by some park owners have listed three or four increase options, including 10 per cent, the consumer price index, prevailing market rent, $10 or whichever of those listed above is the highest. This is clearly unsatisfactory. It has been one of the major areas of residents’ complaints. Residents should know in advance which method will be used. Park owners should not leave the future financial commitments of residents up in the air, and that would be the result of this amendment.
The Government opposes amendment No. 11 for the reasons stated in response to the previous amendment, and opposes any move to allow more than one rent increase method in park tenancy agreements. It would be unjust to take away the rights of park residents to challenge a rent increase under the circumstances proposed by the Opposition. This would be denying residents the fundamental rights afforded to every other tenant in New South Wales. Park residents are commonly older people on lower incomes and there is no justification for such harsh provisions.
The amendment would mean that even if a service or facility were withdrawn residents could not approach the tribunal to seek a reduction of rent, unlike other tenants. This is grossly unfair. The bill provides that the Residential Tenancies Tribunal will now be able to take into account the conduct of the parties when dealing with an excessive rent application so that any previous agreement by a resident to pay a rent increase will now be able to be specifically considered. The bill is fair and balanced on this issue, unlike the Opposition’s proposal, which would deny residents the opportunity to make a justifiable challenge to an excessive rent or rent increase.
Amendment No. 12 is clearly associated with amendment No. 11 and the Government makes the same response to it. In relation to amendment No. 13, relating to whether the period is six months or 12 months, the tribunal has the power to extend the period for making any application in any particular instance. If residents wish they can choose to make an application to the Local Court, where longer time periods are allowed, for recovery action to commence. However, some may prefer to use the tribunal, which is, after all, the specialist tenancy forum. It is believed that a reasonable period should be allowed for recovery actions to be commenced in the tribunal. In all the circumstances the Government contends that a 12-month time period should be considered to be reasonable.
Question - That the amendments be agreed to - put.
The Committee divided.
Mr Bull Dr Pezzutti
Mrs Forsythe Mr Ryan
Mr Gallacher Mr Rowland Smith
Miss Gardiner Mr Willis
Mr Hannaford Tellers,
Mr Kersten Mr Jobling
Mr Lynn Mr Moppett
Mrs Arena Mr Macdonald
Dr Burgmann Rev. Nile
Ms Burnswoods Mr Primrose
Dr Chesterfield-Evans Mrs Sham-Ho
Mr Cohen Mr Shaw
Mr Corbett Ms Tebbutt
Mr Dyer Mr Tingle
Mr Egan Mr Vaughan
Mr Jones Tellers,
Mr Kaldis Mrs Isaksen
Mr Kelly Mr Manson
Dr Goldsmith Mr Obeid
Mr Samios Ms Saffin
Question so resolved in the negative.
The Hon. R. S. L. JONES [5.26 p.m.], by leave: I move amendments Nos. 15, 16, 17 and 18 standing in my name in globo:
No. 15 Page 41, clause 54, line 29. Omit "if".
No. 16 Page 41, clause 54, lines 30-36. Omit all words on those lines.
No. 17 Page 42, clause 54, lines 1 and 2. Omit ", after having regard to all of the circumstances of the case, including whether the resident has suffered any detriment,".
No. 18 Page 42, clause 54, lines 3 and 4. Omit "of that part of the increased rent that the Tribunal thinks appropriate".
It has been remiss of me not to thank my adviser, Jeni Emblem, who put in many hours of hard work with the people who will be affected by this legislation. I appreciate all the work she has done. Proposed section 53 requires a resident to be given written notice 60 days before a rent increase. The proposed section also provides that a rent increase is not payable unless it is in accordance with the provisions of, or by order of, the tribunal. Those provisions are based on section 45 of the Residential Tenancies Act.
A rent increase that is invalid results in an overpayment of rent and that rent is recoverable by the resident. However, proposed section 54, which has no similar provision in the Residential Tenancies Act, subverts the intention of proposed section 53 in that it totally undermines the requirement of park owners to meet their obligations under proposed
section 53. It also severely reduces the likelihood of a park owner being ordered to repay an overpayment from which he has benefited. I hope the House will support these amendments.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [5.29 p.m.]: The amendments will create a general provision relating to the jurisdiction of the Residential Tenancies Tribunal to order a refund of overpaid rent. There is some uncertainty as to whether the tribunal has the necessary jurisdiction to hear disputes over the refund of rent paid following the receipt of an invalid notice of increase from the park owner. Clause 54 gives the tribunal some discretion as to its order-making power, and places a 12-month time limit on making applications. The tribunal is the specialist forum for tenancy disputes. It is appropriate that disputes of this nature are able to be heard by the tribunal. Residents still have the option to use the Local Court process if they so desire. In the circumstances the Government will support the amendments moved by the Hon. R. S. L. Jones.
Amendments agreed to.
The Hon. J. F. RYAN [5.31 p.m.], by leave: I move Opposition amendments Nos 14, 15 and 16 in globo:
No. 14 Page 43, clause 57, line 6. Omit "each of the following factors". Insert instead "the general market level of rents for comparable premises (other than premises let by a government department or a public authority) in the same residential park and in other residential parks in the locality or a similar locality and may also have regard to the following".
No. 15 Page 43, clause 57, lines 7-9. Omit all words on those lines.
No. 16 Page 43, clause 57, lines 11-16. Omit all words on those lines.
Clause 57 lists a number of matters the tribunal may consider in determining whether to accept an application for rent increase. Those matters include the general market level of rents for comparable premises, the value of residential premises, the frequency and amount of past rent increases, a general price index such as the consumer price index or other economic indicators, the conduct of the parties and a number of other matters which may largely be summarised as outgoings, whether they be improvements made by the park owner, the estimated cost of various services, the nature of any fittings or appliances, and other amenities that have been provided by the park owner or residents.
The amendments seek to delete the general market level of rents for comparable premises, the frequency and amount of past rent increases, the consumer price index and the conduct of the parties. It is appropriate that the tribunal consider outgoings and improvement of the value of the premises in the setting of rents. However, the other matters ought not necessarily be the subject of a determination by the tribunal, but should be the subject of negotiation between park owners and residents.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [5.33 p.m.]: The Government opposes the amendments. The primary amendment would remove the major initiative in the bill, which is to provide a more workable mechanism for the tribunal’s consideration of excessive rent increases. The tribunal has commented on the difficulties of comparing rents in parks many kilometres apart. The same difficulties do not arise with conventional accommodation because even the smallest of towns usually have a number of other houses against which to compare rents.
That is not always the case in parks. A better mechanism is needed to resolve park rental disputes. The new provisions will give the tribunal the flexibility it needs to handle excessive rent disputes in parks. This is not a rent control provision, as some from the industry and some members of this House have asserted. The tribunal has been able to adjudicate on excessive rents and rent increases since 1989. I am informed that there has been an increase of 20 per cent in long-term sites during that period.
It cannot be said that the legislation has had a negative effect. It should be remembered that it is only the mechanism for consideration of excessive rent applications that has been refined to overcome some shortcomings in the present provisions as they apply to residential parks. The tribunal has commented on the difficulties of applying the excessive rent provisions to the park situation. In 1996 in the matter of White and Bridges v Tingari Village North Mr Hopkins, a member of the tribunal, said:
Considering the evidence as a whole I am left with sufficient doubt that the issues of rent increases involving residents of caravan parks can be dealt with adequately on the basis of the current legislation. The issues involved for such residents are quite different to that for tenants of other residential premises. As such the criteria in determining rent increase cases as set out in the current legislation do not comfortably fit the caravan park situation. Early consideration might be given by the Parliament to legislation which will better meet the needs of residents and landlords in dealing with the important question of rent in caravan parks.
The tribunal raised the question as to whether the existing criteria are adequate for this area of tenancy. The Government believes that the provisions of clause 57 address the peculiarities and distinguishing features arising under park tenancies. The Government believes the Opposition’s amendments should be opposed.
The Hon. R. S. L. JONES [5.36 p.m.]: I will not move amendment No. 19 standing in my name.
Part as amended agreed to.
The Hon. R. S. L. JONES [5.37 p.m.]: I move amendment No. 20 standing in my name:
No. 20 Page 46, clause 63. Insert after line 32:
The only sanction that attaches to breaches of the provision about park rules forming a part of the residential tenancy agreement is the possibility of an imposition of a penalty upon a park owner. A resident has no individual remedy to resolve a dispute arising under clause 63. This amendment is aimed at giving residents an opportunity to take such breaches to the Residential Tenancies Tribunal.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [5.38 p.m.]: The penalty for a failure by a park owner to give the resident a copy of the park rules would be removed under this amendment. Instead it would become a term of every tenancy agreement that a copy of the park rules must be provided. That would give residents access to the tribunal should disputes arise. It is hoped that most park owners would comply with the requirement and give residents a copy of the park rules. However, the amendment would give residents more direct access to resolution of disputes about not getting copies of the park rules. Residents would not have to rely on a prosecution action. Hence the Government supports the amendment.
Amendment agreed to.
Part as amended agreed to.
Parts 7, 8 and 9
The Hon. I. COHEN [5.39 p.m.]: I seek the leave of the Committee to move Greens amendments Nos 1 to 21 in globo.
The CHAIRMAN: Order! Before I put the request, I point out that Greens amendment No. 5 is the same as Opposition amendment No. 17, and that Greens amendment No. 7 is the same as Opposition amendment No. 18. In accordance with usual practice, as the Chair received the Greens amendments before it received the Opposition amendments, it will put the Greens amendments first.
The Hon. J. H. Jobling: I suggest that the similar amendments be moved separately.
The Hon. I. COHEN: I am quite happy to move the similar amendments separately. By leave, I move Greens amendments Nos 1 to 4, 6, and 8 to 21 in globo:
(4) It is a term of every residential tenancy agreement that the park owner must not breach subsection (3)
No. 1 Page 49, clause 67, line 9. Omit "A resident of a residential park". Insert instead "It is a term of every residential tenancy agreement that the resident".
No. 2 Page 49, clause 67, line 12. Omit "A". Insert instead "It is a term of every residential tenancy agreement that the".
No. 3 Page 49, clause 67, line 14. Omit all words on that line.
No. 4 Page 49, clause 68, line 16. Omit "A". Insert instead "It is a term of every residential tenancy agreement that the".
No. 6 Page 49, clause 68, line 19. Omit "A". Insert instead "It is a term of every residential tenancy agreement that the".
No. 8 Page 49, clause 69, line 25. Omit "A park owner or park manager of a residential park". Insert instead "It is a term of every residential tenancy agreement that the park owner and park manager of the residential park".
No. 9 Page 49, clause 69, line 28. Omit all words on that line.
No. 10 Page 50, clause 70. Insert after line 29:
(6) Any demand or requirement referred to in subsection (5) is unenforceable.
No. 11 Page 53, clause 73, lines 26-29. Omit all words on those line. Insert instead:
(3) It is a term of every residential tenancy agreement that the park owner must give the resident a copy of the document referred to in subsection (2) at or before the time that the resident enters into the agreement.
No. 12 Page 53, clause 73, line 30. Omit all words on that line.
No. 13 Page 54, clause 74, line 9. Omit "A resident under a". Insert instead "It is a term of every".
No. 14 Page 54, clause 74, line 10. Insert "that the resident" after "commenced".
No. 15 Page 54, clause 74, line 19. Omit all words on that line.
No. 16 Page 54, clause 74, line 20. Omit "A resident under a". Insert instead "It is a term of every".
No. 17 Page 54, clause 74, line 21. Insert "that the resident" after "commenced".
No. 18 Page 54, clause 74, line 24. Omit all words on that line.
No. 19 Page 55, clause 76, line 22. Omit "may demand a reasonable". Insert instead "must not demand any amount for the cost of obtaining and installing such facilities from any current or future resident or prospective resident".
No. 20 Pages 55 and 56, clause 76, line 23 of page 55 to line 6 of page 56. Omit all words on those lines.
No. 21 Page 56, clause 77, line 8. Omit ", and paid for,".
I will speak only briefly to the amendments, for I understand the Government will not support them and I do not wish to take further issue in respect of these amendments. Part 7 of the bill seeks to regulate community aspects of residential park living and the rights of residents and prospective residents to information. However, the part provides that any penalty for breaches of these provisions will be imposed on park owners; it does not provide a resident with any right to individual remedy. That could easily be ensured by making the obligations a term of a residential agency agreement, thus giving tenants access to the Residential Tenancy Tribunal if necessary in the event of a breach of the agreement.
I now speak to amendments Nos 12 to 16 and 19 to 21. Mailboxes will be the property of the park owner, so the mailboxes should be paid for by the park owner. Installation of mailboxes should be a capital expense of the park owner which can be written off against profits for the life of the boxes. Further, the mailboxes should be installed in a way that will enable Australia Post to deliver direct to them. I commend the Greens amendments.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [5.42 p.m.]: These amendments obviously are well intentioned, but the Government regards some of them as unworkable and otherwise taking the package beyond that which the Government has formulated in consultation with the industry and residents. The Government, perhaps regrettably, in the ultimate cannot support the amendments.
The CHAIRMAN: Order! The Hon. I. Cohen may now move Greens amendments Nos 5 and 7 if he wishes.
The Hon. I. COHEN [5.44 p.m.]: I will not move Greens amendments Nos 5 and 7.
The Hon. J. F. RYAN [5.45 p.m.], by leave: I move Opposition amendments Nos 17 and 18 in globo:
No. 17 Page 49, clause 68, line 18. Omit all words on that line.
No. 18 Page 49, clause 68, line 22. Omit all words on that line.
The Opposition seeks to delete the specific penalty of two penalty units for offences created under these provisions. The Opposition accepts it as reasonable that the Act make reference to the fact that noticeboards be provided by a park owner, and similarly that the park owner should not unreasonably interfere with the right of a resident to read the noticeboard. How one would stop a person from reading a noticeboard, I am not sure. The Opposition believes it is somewhat draconian to set up an offence carrying a fine of $220 for failure to provide and maintain a noticeboard. In any event, the bill contains no detail as to what maintaining a noticeboard actually means.
Whilst the Opposition accepts that a noticeboard is a useful amenity to provide for residents, to impose a penalty on a park owner for not having maintained a noticeboard might be somewhat draconian. Similarly, why would one provide a fine of $220 for preventing a person from reading a noticeboard? The Opposition is not sure why these offences are to be created. The Opposition believes them to be inappropriate, and seeks at least to remove from the bill the monetary penalties in respect of those matters.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [5.47 p.m.]: The Government will not accept the amendments. The placing of noticeboards in each park is an important initiative. A noticeboard improves the community lifestyle of residents, enabling them to put up notices about meetings, social activities and other events of common interest
to the park. It is essential that park owners be encouraged to comply with the new requirements.
It is to be hoped that the penalty provisions never have to be used. The Government anticipates that they will not need to be used. However, the obligations on a park owner to provide a noticeboard need to be taken seriously. To characterise these provisions as draconian is, as the Hon. J. F. Ryan knows, hyperbole. The fact is that the penalties provided for are modest. These are balanced provisions. The requirement on the park owner to maintain a noticeboard is not onerous. The provision that the park owner must not unreasonably interfere with the right of a resident to read the noticeboard or place notices on it is both modest and temperate. The Government sees no force in the Opposition amendments in this respect and therefore opposes the amendments.
The Hon. J. F. RYAN [5.49 p.m.]: I move Opposition amendment No. 19:
No. 19 Page 50, clause 70, line 29. Omit all words on that line.
This amendment seeks to delete a penalty of $220 or two penalty units for offences such as failure to maintain landscaping. As I said previously, the Opposition does not believe it is appropriate that this matter be dealt with as an offence involving the imposition of a penalty notice. As the Minister said on an earlier amendment, the provision does not appear to be draconian. However, the bill does not establish what constitutes an offence. It is not well-defined. In addition, a penalty notice could be issued on a number of subsequent days, depending on the zealousness of the enforcement officer. Clause 70(1) states:
Any standard of residential site preservation or residential site landscaping for residential premises in a residential park must be set out in the residential tenancy agreement . . .
Residents might not know they are continually committing an offence simply because they are waiting for materials to restore a difficult landscaping job. The Opposition fully appreciates that landscaping is an important part of the residents’ lifestyle. However, it is not appropriate to have penalties and penalty notices slapped on park owners at the behest of an enforcement officer in accordance with the wording of the bill. It is not appropriate to approach this important issue in that manner.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [5.51 p.m.]: The Government does not support this amendment, which relates to a part of the code of practice, which, I am informed, has been difficult to enforce because no direct penalty is attached. Forcing residents to use a particular tradesperson and denying a right of choice is a serious issue. It must be made clear that any such behaviour by park owners is not acceptable and should be the subject of a moderate penalty, as contemplated in the bill.
The Government considers that some penalty should be imposed when an owner demands or requires a resident to purchase, rent or lease goods or services for residential site preservation or landscaping from any particular person, company or corporation. That really contemplates a commercial coercion which should be regarded as improper. Some penalty needs to be attached to that behaviour in order to discourage it.
The Hon. J. F. RYAN [5.52 p.m.]: The Act makes it clear, and the Opposition would agree, that that sort of behaviour is inappropriate. It would be difficult to understand how a park manager would enforce such a demand. If the legislation makes that behaviour illegal, there is no need to impose a penalty. If a park owner makes such a demand, a resident could refer to the Act and say that the manager does not have a right to do so. If the amendment is accepted, residents will have the right to refuse any such requirement, and there is no need to impose a penalty on park owners who make such demands.
The Hon. J. F. RYAN [5.54 p.m.]: I move Opposition amendment No. 20:
No. 20 Page 53, clause 73. Insert after line 25:
(3) For the purposes of this section, a park owner complies with the obligation to answer the question set out in subsection (2) (k) if the park owner provides the prospective resident with a community map prepared in accordance with:
(a) the Local Government (Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 1995 or the Local Government (Manufactured Home Estates and Manufactured Homes) Regulation 1995, whichever is applicable to the residential park, or
This amendment relates to an obligation on the park owner to stipulate the size of each residential site. The Opposition does not object to that requirement.
However, it proposes a redrafting for clarity and assistance. It would be much simpler to provide a definitive map to determine the size of the site. That would be easily achieved by reference to a community map prepared in accordance with the Local Government Caravan Parks, Camping Grounds and Moveable Dwellings Regulation 1995 or the Local Government Manufactured Homes Estates and Manufactured Homes Regulation 1995, whichever is applicable.
If the Opposition amendment is agreed to, the park owner would be saved the cost of a survey. The residents would also be saved the cost of a survey, which would be incorporated in overheads and passed on in rent increases. The amendment provides a sensible and responsible approach, allowing for a low-cost resolution to a difficult problem. The Government should adhere to this reasonable principle proposed in the amendment. There is no reason for the legislation to be more onerous than necessary or to impose unnecessary costs. It is incumbent on the Government to identify why it is necessary for a survey to be undertaken when a map is adequate.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [5.56 p.m.]: The Government opposes the amendment. The proposed change is intended to permit the park owner to avoid giving specific details about the size of each site, and instead to give each resident a copy of the community map so that residents can find the information themselves. There is no need for this amendment. Residents should be given the information relating to the site they are renting.
Under the Local Government Caravan Parks, Camping Grounds and Moveable Dwellings Regulation 1995 the community map is to accurately show the number, size, location and dimensions of sites. Clearly the park owner already has to provide the size and dimensions of all the sites in the park for the purpose of the community map. The Government argues that there is no additional burden on the park owner in having to extract the information for a particular site. The provision in the bill is perfectly reasonable, and the amendment to essentially delete or change it should not be supported by the Committee.
The Hon. J. F. RYAN [5.58 p.m.]: I move Opposition amendment No. 21:
(b) any other procedure that may be prescribed by the regulations.
No. 21 Page 55, clause 75, line 10. Insert "that is occupied," after "site".
The bill requires park owners to provide a letterbox for each site. The Opposition seeks to amend the bill so that it would be necessary for park owners to provide a letterbox only for those sites that are occupied. It is an unreasonable and onerous requirement for letterboxes to be provided on sites that the park owner has not been able to let or does not intend to let at a specific time. The Opposition is attempting to save increased costs, which will ultimately be passed on to tenants in the form of rent increases.
The Government should adhere to a principle that it is not necessary to make the law more onerous than is necessary to achieve its purpose. The obvious purpose of clause 75 is that each resident of a caravan park should have a letterbox. The Opposition accepts that. However, there is no reason for landlords to provide letterboxes that no-one will use or will be used infrequently. A park may have 500 sites, of which only 300 are occupied. Under the bill the park owner would be required to provide 200 extra letterboxes at considerable cost. No doubt the people renting the sites would pay the additional cost of providing letterboxes; the costs would not be borne entirely by park owners. The Government should agree to this fairly minor but sensible amendment, which would result in this provision applying to occupied sites only, as intended.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [6.00 p.m.]: The Government opposes the amendment, which would result in park owners having to install sufficient mail facilities only for long-term sites occupied at the time the decision was made to install the facilities. The Government considers that its proposal is preferable because of the added time and expense to park owners of having to add mailboxes later. Just as facilities for water and electricity are available to sites, whether or not they are occupied, the Government contends that it is appropriate that mail facilities be available to incoming residents.
The Hon. I. COHEN [6.01 p.m.]: I move Greens amendment No. 22:
No. 22 Page 56, clause 78, lines 15-25. Omit all words on those lines. Insert instead:
(1) Individual mail facilities constructed or installed in accordance with this Part must be constructed in such a way as to permit the attachment of separate locking devices to each mail facility.
I am pleased that the Attorney General has studied the matter and has seen fit to support the amendment. The Government’s generous position is in keeping with the basic right to privacy of individuals in the community. Residents should be entitled to privacy in relation to their mail. For example, park residents frequently do not receive notifications from the Residential Tenancies Tribunal. It is not difficult to install banks of letterboxes that can be separately secured by residents, as often happens in blocks of flats. Residents should have the right to secure their mailboxes. I commend the amendment to the Committee.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [6.02 p.m.]: It is true that the Government has been persuaded by the Hon. I. Cohen’s advocacy for the amendment and the force of his submissions. Therefore, the Government will support the amendment.
Amendment agreed to.
Parts as amended agreed to.
The Hon. I. COHEN [6.03 p.m.], by leave: I move Greens Amendments Nos 23, 24 and 25 in globo:
(2) It is a term of every residential tenancy agreement that a resident may install a lock on any individual mail facilities available for use by the tenant.
No. 23 Page 57, clause 81, lines 25-27. Omit all words on those lines.
No. 24 Page 57, clause 81, line 28. Omit "Without limiting subsection (2), a". Insert instead "A".
No. 25 Page 58, clause 82, lines 25-27. Omit all words on those lines.
Owners of manufactured homes and caravans with rigid annexes must be allowed to sell their dwellings on site without interference by a park owner; otherwise they may be forced to sell a dwelling to the park owner as no other market is available to them. Any dispute should be resolved by recourse to the Residential Tenancies Tribunal. I commend the amendments to the Committee.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [6.04 p.m.]: The Government is unable to support these amendments.
The Hon. I. COHEN [6.04 p.m.]: I move Greens amendment No. 26:
No. 26 Page 59, clause 83. Insert after line 13:
Park owners should not be able to charge commissions when they have not been involved in the sale of a dwelling, although that happens in normal commercial transactions. This amendment will remedy the situation. I understand that the Government will support the amendment, which I commend to the Committee.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [6.05 p.m.]: The Government will support this amendment.
Amendment agreed to.
The Hon. I. COHEN [6.05 p.m.]: I will not move Greens amendment No. 27.
Part as amended agreed to.
The Hon. I. COHEN [6.06 p.m.], by leave: I move Greens amendments Nos 28 and 29 in globo:
(4) However, no commission is payable if the moveable dwelling is sold otherwise than as a result of the park owner acting as selling agent.
No. 28 Page 61, clause 87, line 4. Omit "if".
No. 29 Page 61, clause 87, lines 5-14. Omit all words on those lines.
Clause 87(2) provides that a park disputes committee must be convened within 30 days of an application under clause 87 or a matter being referred to the committee. That is an unnecessary delay in the resolution of a matter. Park owners should simply be required to convene a park disputes committee. I commend the amendments.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [6.06 p.m.]: The Government does not support these amendments. The apparent effect would be to require park owners to convene disputes committees even before a dispute had arisen or crystallised. The Government does not think the proposal is appropriate.
The Hon. I. COHEN [6.08 p.m.]: I will not move Greens amendment No. 30. By leave, I move Greens amendments Nos 31, 32 and 33 in globo:
No. 31 Page 64, clause 91, line 20. Omit "by order". Insert instead "with the consent of the parties".
No. 32 Page 64, clause 91, line 24. Omit "order". Insert instead "reference".
No. 33 Page 64, clause 91. Insert after line 36:
The bill fails to recognise that alternative dispute resolution [ADR] will work only if it is voluntary, and parties must have direct access to the tribunal. The alternative dispute resolution proposed in this bill is not voluntary. Concern has been expressed about whether residents or park owners will be able to leave the alternative dispute resolution process if it is proving to be ineffective and go to the Residential Tenancies Tribunal. These amendments will ensure that any ADR sessions are voluntary. I commend the amendments to the Committee.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [6.08 p.m.]: These amendments are acceptable to the Government. One concept is that the tribunal would be able to refer matters for alternative dispute resolution only with the consent of the parties. There is an oddity about referring matters to ADR when there is no consent. The other amendments, which are consequential, seem reasonable and the Government supports them.
Amendments agreed to.
Part as amended agreed to.
The Hon. J. F. RYAN [6.10 p.m.], by leave: I move Opposition amendments Nos 22 and 23 in globo:
(3) Attendance at, and participation in, alternative dispute resolution sessions is voluntary. Any party to such proceedings may, at any time, withdraw from alternative dispute resolution and request that the matter be remitted to the Tribunal.
No. 22 Page 69, clause 98, line 24. Insert "or for non-payment of any other amount that the resident is required to pay by or under this Act or the residential tenancy agreement" after "rent".
No. 23 Page 69, clause 98, line 29. Omit "rent unless the rent". Insert instead "rent or any other amount unless the rent or other amount".
The bill makes provision for residents to make application to the Residential Tenancies Tribunal to review park rules. The Opposition supports that process provided the rules are new. If the opportunity is available to take existing park rules to the tribunal, it is possible that a group of residents may object to a longstanding park rule. In this instance the park owner may have to justify the rule to the tribunal even though that rule may be longstanding. It is certainly reasonable that the fairness or legal validity of a new or amended rule might be reviewed by the tribunal. However, it would be unfair for accepted rules or those of long standing to be subject to review by the Residential Tenancies Tribunal. The amendment restricts the operation of clause 88 slightly.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [6.12 p.m.]: The Government opposes these amendments. The rather odd effect of the Opposition amendments is to leave residents specifically liable for a notice of termination not only for rent arrears but also for non-payment of other amounts, for example water or electricity charges. That is an attempt to leave a resident open to the possibility of loss of their tenancy in the event of non-payment of amounts other than rent. This places the non-payment of a $10 electricity charge on the same level as $200 in unpaid rent.
When attempts to resolve a dispute for non-payment of service charges are unsuccessful, park owners already have a general right to seek an order from the tribunal when a resident breaches the agreement. This would happen if a resident failed to pay a water or electricity charge. An incident of that nature ought to be dealt with in that way. It is unreasonable to suggest that a resident automatically faces loss of tenancy the first time a small charge has not been paid. I would not have thought even this Opposition would have suggested that result.
It seems to be an oddity for the Opposition to suggest that kind of drastic result. The Government does not support anyone failing to meet obligations under a tenancy agreement. However, the Government does not support a drastic measure, as appears to be contemplated by these amendments, ill thought out as they presumably are, to resolve a dispute for which other methods are provided in the legislative regime. Perhaps the Opposition has erred. I appreciate that human error is endemic. I erred once myself.
The Hon. J. H. Jobling: Only once?
The Hon. J. W. SHAW: Not really. If the effect of the amendment is as I have characterised and understood it, it is an extreme step that the Opposition takes. I am somewhat puzzled by it. Why is the Opposition doing this to the residents?
The Hon. I. COHEN [6.16 p.m.], by leave: I move Greens amendments Nos 34 and 36 in globo:
No. 34 Page 79, clause 113, line 14. Insert ", if the circumstances of the case so justify," after "may".
No. 36 Page 81, clause 117, line 5. Insert ", if the circumstances of the case so justify," after "may".
These amendments will allow the Residential Tenancies Tribunal to make a decision about whether a resident should be excluded from the park on the basis of any special circumstances. I commend the amendments to the Committee.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [6.17 p.m.]: The Government supports the amendments.
Amendments agreed to.
The Hon. I. COHEN [6.17 p.m.]: I will not move Greens amendments Nos 35 and 37.
Part as amended agreed to.
Part 14 and Schedule 3
The Hon. J. F. RYAN [6.20 p.m.], by leave: I move Opposition amendments Nos 24 and 25 in globo:
No. 24 Pages 99 and 100, clause 149, line 11 on page 99 to line 12 on page 100. Omit all word on those lines.
No. 25 Page 119, schedule 3.2, lines 1-5. Omit all words on those lines.
This bill introduces the concept of penalty notices. The Opposition is on record as having previously opposed the imposition of penalty notices because it is an arbitrary form of determining people’s guilt before their innocence has been tested. I understand that concept is not available to other forms of rental property, and it would seem strange to levy penalty notices on mobile home parks. The Opposition successfully convinced the House on another occasion, I believe in regard to the residential tenancies legislation. The upper House agreed with the Opposition and the penalty notices were removed. I appeal to the Committee to exercise consistency in regard to these amendments. We are concerned that an overzealous or enthusiastic authorised officer could create enormous problems for those who might be liable to a penalty notice.
Once a penalty notice has been issued - perhaps for some controversial matter such as the maintenance of landscaping, access by tenants to a notice board or maintenance of the notice board - the matter can be resolved by the Residential Tenancies Tribunal or by the other dispute measures set out in the bill. The Opposition believes, as does the industry, that there is no real need for penalty notices and that the legislation would be improved by the removal of penalty notices. I ask the Committee to support these amendments.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [6.21 p.m.]: The question that arises is whether there ought to be a facility in the penalty notice provisions for the enforcement of this legislation. Residential park owners are not being singled out. Penalty notice provisions merely provide another strategy that can be used, if appropriate, by the Department of Fair Trading to obtain compliance with legislation. Other fair trading legislation contains similar provisions, and the intention is to adopt a consistent approach to all legislation within the fair trading portfolio. I point out that these are machinery or procedural provisions and that regulations have yet to be drafted for the specific manner in which penalty notices will operate.
All stakeholders, including park owners, will be consulted over the specific breaches that will be subject to the penalty notice breaches. This is already taking place in similar provisions introduced during the last parliamentary session following amendments to the Property, Stock and Business Agents Act and the Landlord and Tenant (Rental Bonds) Act. There will be careful and detailed consultation with the parties affected by the penalty notice provisions in the Residential Parks Bill. The Opposition when in government introduced penalty notice provisions in the trade measurement and motor dealers legislation. There is nothing new about the introduction of penalty notices; they simply provide another compliance mechanism. Problems with the enforcement of the present Act and the code of practice were raised during the review.
It should be noted in particular that penalty notices do not remove a person’s right to have a matter heard in court, but they do eliminate the need for people to attend court for minor breaches. They are similar to parking tickets: If you dispute the parking ticket you can get a solicitor or barrister to contest the matter in court or represent yourself and cross-examine the police officers. You have every right to natural justice. But if expedience suggests that you might just pay the fine - as I am sure some members of this Committee have probably had to do from time to time - you pay the fine. I do not understand this question about penalty notices. There
is no grand question of principle here. We should support this facility as an effective and practical means of enforcing the provisions of the bill.
The Hon. J. F. RYAN [6.24 p.m.]: The Minister suggested that penalty notices are similar to traffic fines. I am aware of people who have received traffic infringements and spent up to $4,000 in legal fees to clear their name. They wanted to clear their name because they did not want to lose demerit points, which are part of our regime of traffic enforcement. These provisions are included in the bill simply to make it easier for the Department of Fair Trading to do certain things by correspondence. If park owners are required under the Act to provide agreements with regard to landscaping, notice boards, and so on, the department can simply serve a notice or a letter, and if the park owners do not comply, further action can be taken.
The Minister said the coalition introduced similar provisions with regard to weights and measures legislation. That is different; those offences are objective offences. It is possible to work out whether a person is correctly measuring and selling goods. But it may be a matter of discretion whether a park owner is preventing someone putting notices on a noticeboard, reading a noticeboard or having a dispute about landscaping. It is not possible to be entirely objective about such matters; they may involve the discretion of the officer who issued the infringement notice, and they may not be matters for which an infringement notice is appropriate. The Minister did not respond to my comment that this matter was addressed by this House previously and the penalty notices were withdrawn.
This provision has very little benefit for residents. However, park owners may - in some instances unfairly - be irritated by officers of the Department of Fair Trading issuing penalty notices. It does very little to improve the lifestyle of the residents, but it suits the convenience of departmental officers. The Government has considered, fairly and reasonably, amendments to the legislation to suit the benefit of residents. The Government should give some consideration to amendments that are intended to benefit park owners in a reasonably balanced way. I note that the Government has not accepted one amendment put forward to meet the concerns of park owners.
Quite a number of amendments have been accepted in response to concerns by residents. I do not quibble with that: many have been quite fair. The Government has no moral responsibility to drive park owners into the ground. They should consider the concerns of both sides in a balanced way. It would appear that the Government is determined not to deal fairly with these matters. It is going to politicise the issues and attempt to characterise the Opposition as being against the residents and for the greedy park owners, neither of which is true. We ask the Government to reconsider its position with regard to penalty notices and improve the legislation by removing them.
Question - That the amendments be agreed to - put.
The Committee divided.
Mr Bull Dr Pezzutti
Mrs Forsythe Mr Ryan
Mr Gallacher Mr Rowland Smith
Miss Gardiner Mr Willis
Mr Hannaford Tellers,
Mr Kersten Mr Jobling
Mr Lynn Mr Moppett
Mrs Arena Mr Macdonald
Dr Burgmann Rev. Nile
Ms Burnswoods Mr Primrose
Dr Chesterfield-Evans Mrs Sham-Ho
Mr Cohen Mr Shaw
Mr Corbett Ms Tebbutt
Mr Dyer Mr Tingle
Mr Egan Mr Vaughan
Mr Jones Tellers,
Mr Kaldis Mrs Isaksen
Mr Kelly Mr Manson
Dr Goldsmith Mr Obeid
Mr Samios Ms Saffin
Question so resolved in the negative.
Part and schedule agreed to.
The Hon. M. R. EGAN (Treasurer, Minister for State Development, and Vice-President of the Executive Council) [6.37 p.m.]: Now that the bill has passed the second reading and is about to pass the Committee stage, I take the opportunity to pay tribute to the honourable member for Wyong, who
has been a strong advocate of this legislation both in opposition and in government. The passage of the bill is a credit to his perseverance and a credit to his tenacity on behalf of his constituents.
The CHAIRMAN: Order! The Leader of the Government should know that comments like that are completely out of order in Committee.
Bill reported from Committee with amendments and passed through remaining stages.
[The President left the chair at 6.41 p.m. The House resumed at 8.15 p.m.]
Motion by the Hon. J. W. Shaw agreed to:
That this House at its rising today do adjourn until Monday, 23 November 1998, at 2.30 p.m.
MOTOR ACCIDENTS AMENDMENT BILL
Consideration resumed from 17 November.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [8.19 p.m.], by leave: I move Government amendments Nos 1 to 34 in globo:
No. 1 Page 3, schedule 1. Insert after line 33:
(2) It must be acknowledged in the application and administration of this Act:
(a) that participants in the scheme under this Act have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable, and
(b) that the law (both the enacted law and the common law) relating to the assessment of damages in claims made under this Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries, and
(i) the premium pool from which each insurer pays claims consists at any given time of a finite amount of money, and
(ii) insurers are obliged under this Act to charge premiums that will fully fund their anticipated liability, and
(iii) the preparation of fully funded premiums requires a large measure of stability and predictability regarding the likely future number and cost of claims arising under policies sold once the premium is in place, and
(iv) the stability and predictability referred to in subparagraph (iii) require consistent and stable application of the law.
No. 2 Page 5, schedule 1, line 28. Insert "The Authority and the licensed insurer concerned may by agreement appoint a person to act as arbitrator in connection with the matter. Failing agreement within 7 days, paragraphs (b) and (c) apply." after "regulations.".
No. 3 Page 6, schedule 1, lines 5-7. Omit all words on those lines. Insert instead "persons who have appropriate knowledge and understanding of economics, general insurance and the interests of consumers.".
No. 4 Page 6, schedule 1. Insert after line 10:
Insert ", being a premium that in the arbitrator’s opinion is sufficient fully to fund the present and likely future liability of the insurer under this Act" after "insurer".
No. 5 Page 6, schedule 1, lines 18 and 19. Omit all words on those lines.
No. 6 Page 7, schedule 1, lines 8-11. Omit all words on those lines.
No. 7 Page 7, schedule 1, proposed section 44C. Insert after line 19:
(2) Despite subsection (1), this section does not apply in respect of a motor accident if:
(a) the insurer denies liability (wholly or in part) under section 44H, or
(b) a certificate under section 44G authorising the commencement of court proceedings in relation to the claim arising from the accident is issued on the joint application of the claimant and the insurer. Any such application must specify the reason why the claimant and the insurer consider that court proceedings should be commenced.
No. 8 Page 7, schedule 1, proposed section 44C, line 28. Omit "6 months". Insert instead "12 months".
No. 9 Page 7, schedule 1, proposed section 44C, line 29. Omit "6 months". Insert instead "12 months".
No. 10 Page 8, schedule 1, proposed section 44C, lines 6 and 7. Omit all words on those lines.
No. 11 Page 8, schedule 1, proposed section 44C. Insert after line 12:
(a) is to be in a form approved by the Authority, and
(b) is to set out or be accompanied by such additional particulars and other information as may be required by that form.
No. 12 Page 9, schedule 1, proposed section 44D, line 29. Insert ", and to reimburse the insurer in respect of the fee paid under subsection (3)," after "determination".
No. 13 Page 10, schedule 1. Insert after line 3:
Insert as sections 44E, 44F and 44G:
44E Interim notice of particulars
(1) A claimant in respect of a motor accident to which section 44C applies may give the insurer an incomplete notice (an interim notice) of the kind required by that section if, because the injuries (or any of them) sustained by the claimant in the motor accident concerned have not stabilised, the claimant:
(a) is unable to give a fully detailed notice, and
(b) is unable to make an offer of settlement under section 50D.
(2) An interim notice may be given at any time after the expiry of a period of 9 months commencing with the day on which the motor accident occurred (or commencing with the date of the commencement of section 44C, in the case of a motor accident that occurred before that commencement).
(3) An interim notice must set out the particulars required under section 44C in such detail as is available to the claimant at the time the interim notice is given. The notice must also include an estimate of the future medical condition of the claimant in respect of the injuries that have not stabilised that can be made at that time.
(4) The giving of an interim notice does not discharge the duty imposed on the claimant by section 44C. However, if an interim notice is given, the period of 12 months allowed under section 44C (3) for discharging that duty is extended to 18 months.
(5) If, at the expiry of that period of 18 months, the relevant injuries (or any of them) still have not stabilised, the claimant may apply to the Motor Accidents Claims Assessment Unit for a certificate under section 44G.
(6) Any such application is to be made in a form approved by the Authority.
44F Consequence of claimant’s failure to give notice under section 44C
(1) If a claimant who is required to give notice of particulars under section 44C does not do so, the insurer may, on or after the expiry of a period of 18 months commencing with the day on which the motor accident occurred (or commencing with the date of the commencement of section 44C, in the case of a motor accident that occurred before that commencement) give the claimant a notice requiring the claimant:
(a) to give the notice referred to in section 44C, or
(b) if the claimant is unable to give that notice because the injuries (or any of them) sustained by the claimant in the motor accident concerned have not stabilised - to apply for a certificate under section 44G.
(2) The claimant must comply with the notice within 3 months after receipt.
(3) If the claimant does not comply with the notice as required by this section, the claimant is taken to have withdrawn the claim.
(4) A claimant whose claim is taken to have been withdrawn by operation of this section may apply to a court of competent jurisdiction for reinstatement of the claim.
(5) The court may reinstate such a claim only if the court is satisfied that:
(a) there was a good reason for the claimant’s failure to comply with the notice, and
(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are equal to or greater than 10% of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident.
44G Certificate authorising commencement of proceedings
(1) The Motor Accidents Claims Assessment Unit may issue a certificate authorising a claimant to commence court proceedings in respect of his or her claim.
(2) Such a certificate may be issued only:
(a) on the joint application of the claimant and the insurer under section 44C or 50C (3) (b) - if the Unit is satisfied with the reasons specified in the application, or
(b) on the application of the claimant under section 44E or 44F - if the Unit is satisfied that the claimant’s injuries (or any of them) have not stabilised, or
(c) in the circumstances specified in sections 50H (3) and 50L (1).
(3) A certificate issued under this section operates, despite the other provisions of this Act (section 52 (4) excepted), to authorise the claimant to commence court proceedings in respect of the claim concerned.
No. 14 Page 10, schedule 1, lines 4-20. Omit all words on those lines. Insert instead:
 Section 44H
Insert as section 44H:
44H Notice about admission or non-admission of liability to be given by insurer
(1) It is the duty of the insurer to give a written notice to the claimant as expeditiously as possible within the period of 6 months commencing with the day on which the notice of claim is given under section 43 (4) to the insurer or (if that notice is not required to be given to the insurer) to the person against whom the claim is made.
No. 15 Page 11, schedule 1, line 11. Insert "(being services provided by a person with appropriate training to provide those services, but not including services provided by a person who is related to the claimant or any services referred to in section 72 (1A))" after "term".
No. 16 Page 11, schedule 1. Insert after line 11:
Insert after section 45 (2A):
(2B) An insurer may agree to make payments to or on behalf of the claimant in respect of attendant care services provided by a person who is related to the claimant or by a person other than a person with appropriate training to provide those services.
No. 17 Page 11, schedule 1. Insert before line 12:
 Section 45 (5)
Insert after section 45 (4):
(5) The Authority may from time to time issue guidelines with respect to claims for payment under this section.
No. 18 Page 12, schedule 1. Insert after line 16:
(e) The parties to the arbitration are the claimant and the insurer. The Authority is not a party to the arbitration.
No. 19 Page 13, schedule 1. Omit line 12. Insert instead: Omit "the prognosis for future recovery" from section 50A (c). Insert instead "an estimate of the future medical condition of the claimant in respect of the injuries that have not stabilised that can be made at the time the details are given".
Insert at the end of section 50A:
No. 20 Pages 13-15, schedule 1, proposed sections 50C-50G, line 29 on page 13 to line 32 on page 15. Omit all words on those lines. Insert instead:
50C Application of Division
(1) This Division applies:
(a) where the insurer admits liability (wholly or in part) under section 44H in respect of a claim, or
(b) where the insurer admits liability (wholly or in part) in respect of a claim after having wholly denied liability under section 44H in respect of the claim and agrees to pay all the claimant’s reasonable costs already incurred.
(2) This Division, other than sections 50D-50F, also applies:
(i) wholly denies liability under section 44H, or
(ii) admits partial liability but the claimant is dissatisfied with the extent to which liability is admitted, and
(b) the claimant and the insurer agree in writing that the Division should so apply.
(3) However, this Division does not apply, or ceases to apply:
(a) where the insurer admits partial liability but the claimant is dissatisfied with the extent to which liability is admitted (unless the claimant and the insurer agree in accordance with subsection (2) that this Division applies as specified in that subsection), or
(b) if a certificate under section 44G authorising the commencement of court proceedings in relation to the claim is issued on the application of the claimant under section 44E or on the joint application of the claimant and the insurer under this section, or
(c) in such other circumstances as are prescribed by the regulations, or
(d) to disputes excluded from this Division by the regulations.
(4) An application under subsection (3) (b) must specify the reason why the claimant and the insurer consider that court proceedings should be commenced.
(5) Nothing in this Division prevents the claim from being settled at any time.
50D Duty of claimant to make offer
(1) This section applies in respect of motor accidents to which section 44C applies.
(2) It is the duty of the claimant to make an offer of settlement to the insurer of the person against whom the claim is made.
(3) The offer is to specify an amount of damages.
(4) The offer is to be made at the time that notice of particulars are given to the insurer under section 44C.
(5) If the claimant gives the insurer a notice under section 44C but does not make an offer as required by this section the claimant is, for the purposes of Part 6A, in breach of this section.
50E Insurer’s response to offer
(1) It is the duty of the insurer to respond to the claimant’s offer made under section 50D by:
(b) rejecting it and making a counter-offer.
(2) The insurer must respond before the day that is:
(a) the last day of the period of 6 months commencing with the day on which notice under section 43 (4) is given to the insurer, or
(b) the last day of the period of 3 months commencing with the day on which the offer is made to the insurer, or
(c) the last day of the period of one month commencing with the day on which a determination is made under section 44D (6),
(3) If the insurer does not expressly reject the offer but makes a counter-offer within the period allowed under subsection (2), the insurer is taken to have rejected the offer.
(4) If the insurer neither accepts nor rejects the offer within the period allowed under subsection (2), the insurer is taken to have rejected it.
(5) If the insurer rejects the offer without making a counter-offer within the period allowed under subsection (2), the insurer is taken to be in breach of this section.
(6) The counter-offer is to specify an amount of damages.
50F Claimant’s response to counter-offer
(1) It is the duty of the claimant to respond to the insurer’s counter-offer made under section 50E by:
within the period of 4 weeks commencing with the day on which the claimant received the counter-offer.
(2) If the claimant neither accepts nor rejects the counter-offer within the 4-week period, the claimant is taken to have rejected it.
50G Reference of matter for assessment for conciliation
(1) If the insurer’s counter-offer is rejected by the claimant under section 50F, or the claimant and the insurer have entered into an agreement referred to in section 50C (2), the claimant or the insurer or both may refer the claim to the Motor Accidents Claims Assessment Unit for conciliation under this Division.
No. 21 Page 16, schedule 1, proposed section 50H. Insert after line 9:
(2) For the purpose of making that assessment, the Unit may require the production of documents and the furnishing of information to the Unit, and the provisions of section 99D apply (with any necessary modifications) in respect of the Unit’s functions under this section in the same way as they apply in respect of a conciliator’s functions under Division 5 of Part 7.
No. 22 Page 16, schedule 1, proposed section 50J, line 26. Insert " and to the objects and requirements of this Act" after "liabilities".
No. 23 Page 17, schedule 1, proposed section 50K, line 11. Insert "(unless the dispute concerns only the issue, and not the quantum, of liability)" after "damages".
No. 24 Page 17, schedule 1, proposed section 50K. Insert after line 11:
(4) The conciliator is to attach a brief statement to the assessment, setting out the conciliator’s reasons for the assessment.
No. 25 Page 17, schedule 1, proposed section 50L. Insert after line 28:
(4) If a dispute has been the subject of a failed conciliation under this Part, the relevant claim cannot be determined by way of court arbitration.
No. 26 Page 18, schedule 1, lines 10 and 11. Omit all words on those lines.
No. 27 Page 18, schedule 1, lines 20-28. Omit all words on those lines. Insert instead:
(1B) Despite subsection (1A), paragraph (c) of that subsection applies only to the first offer made by the other person’s insurer and not to any subsequent offer, and does not apply where Division 3A applies in relation to the claim concerned.
No. 28 Page 19, schedule 1, proposed section 52A, line 9. Omit "section 50C (2)". Insert instead "section 50C (3)".
No. 29 Page 19, schedule 1, proposed section 52A, line 10. Omit "Division 3A". Insert instead "section 44G".
No. 30 Page 19, schedule 1, proposed section 52A, line 13. Omit "section 50D". Insert instead "section 50E".
No. 31 Page 19, schedule 1. Insert after line 19:
Insert before section 53:
52B Insurer may require claimant to commence proceedings
(1) The insurer of a person against whom a claim is made may give the claimant a notice requiring the claimant to commence court proceedings in respect of the claim if:
(a) the claimant has been entitled to commence the proceedings for a period of at least 6 months, and
(b) at least 18 months have elapsed since the date of the motor accident to which the claim relates.
(2) The claimant must comply with the notice within 3 months after receipt.
(3) If the claimant does not comply with the notice as required by this section, the claimant is taken to have withdrawn the claim.
(4) A claimant whose claim is taken to have been withdrawn by operation of this section may apply to a court of competent jurisdiction for reinstatement of the claim.
(5) The court may reinstate such a claim only if the court is satisfied that:
(a) there was a good reason for the claimant’s failure to comply with the notice, and
(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are equal to or greater than 10% of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident.
No. 32 Pages 21-25, schedule 1, proposed sections 82D-82H, line 1 on page 21 to line 4 on page 25. Omit all words on those lines. Insert instead:
82D Costs where assessments made by conciliator
(1) This section applies where an amount of damages is specified in an assessment made by a conciliator under section 50K, whether or not the relevant claim is subsequently determined by court proceedings.
(2) If the amount of damages assessed by the conciliator is more than the amount of the insurer’s counter-offer under section 50E, the insurer is liable to pay the claimant’s legal costs up to and including the conciliation and the prescribed conciliation fee.
(3) If the amount of damages assessed by the conciliator is equal to or less than the amount of the insurer’s counter-offer under section 50E, each party is to bear its own legal costs up to and including the conciliation and to pay half the prescribed conciliation fee.
(4) If the claimant is in breach of section 50D or the insurer is in breach of section 50E, the costs and fees referred to in this section are to be paid or borne as prescribed by the regulations.
82E Conciliation of costs
(1) A conciliator in a conciliation under Division 3A of Part 5 may require a claimant to produce an assessment of the claimant’s legal costs up to and including the conciliation.
(2) The conciliator is to make all reasonable efforts to bring the parties to the conciliation to an agreement in respect of the legal costs of the claimant.
(3) If the parties are unable to agree on those costs, the costs may be assessed in accordance with the Legal Profession Act 1987.
No. 33 Page 25, schedule 1, proposed section 82I, lines 5-11. Omit all words on those lines. Insert instead:
82I Costs where court proceedings
(1) This section applies where:
(a) a claim has not been the subject of Division 3A of Part 5, or
(b) the Motor Accidents Claims Assessment Unit has decided under section 50H that a dispute relating to a claim is not suitable for conciliation under that Division, and the claim is determined by court proceedings (including court arbitration).
(2) The rules of court concerning offers of compromise apply to any such offer in those proceedings.
(3) The legal costs are, subject to the rules of court, to follow the event, and are to include the prescribed court fee.
No. 34 Page 40, schedule 1, lines 2-10. Omit all words on those lines. Insert instead "Division 3A of Part 5 does not apply in relation to a claim arising out of a motor accident that occurred before the commencement of section 44C (which was inserted by the amending Act), being a motor accident in respect of which notice under section 43 (4) had been given to an insurer before that commencement.".
I foreshadowed in the second reading debate that the Government would be moving amendments to the bill. The amendments address particular issues raised by the Law Society, the Bar Association and representatives of the insurance industry. The amendments which we propose to the Committee are
consistent with the Government’s intention to reduce the level of litigation in motor accident matters by providing incentives for settlement. The amendments will streamline the procedures outlined in the bill. The majority of the Government’s amendments arise from the fact that the cost penalty structure has been altered and therefore some of the procedures concerning offers and counter offers have been altered.
These changes to the cost penalty structure were foreshadowed in debate. Originally, the cost penalty structure in the bill meant that claimants would be liable, in certain circumstances, to pay the insurer’s costs. This is because the onus was on the party rejecting an offer or counter offer on conciliation assessment to achieve a better result or pay for the cost of both parties to finalise the matter. This was a significant shift from the present circumstance where the claimant’s costs are generally met whenever an award of damages is made. The Government is now of the view that the claimant should not be faced with the prospect of meeting the insurer’s legal costs and it is sufficient penalty that claimants be required to meet their own costs when they do not accept a reasonable offer or assessment.
I also foreshadowed in debate the introduction of amendments to the Supreme Court and District Court Acts to allow interim damages to be paid in motor accident matters. The Government has decided not to proceed with the interim damages at this time. Whilst I believe that there is value in this reform it is clear that further work is necessary on the issue. The implications of the introduction of interim damages on the current scheme need to be researched more thoroughly. Accordingly, I have requested the Motor Accidents Authority [MAA] to undertake a study of the likely financial and social impacts upon the current scheme of the introduction of interim damages. I anticipate that the study should be completed by April 1999.
The following amendments have been made to the bill. Amendment No. 1 reinstates the second part of the current objects of the Act. Amendments Nos 2, 3 and 4 relate to the rejection of premiums by the MAA and the procedures for challenging that rejection. The original bill provided that the Independent Pricing and Regulatory Tribunal would act as arbiter. These amendments clarify the procedures. For example, the MAA and the licensed insurer concerned may, by agreement, appoint an arbitrator in connection with the matter. An arbitrator must have appropriate knowledge and understanding of economics, general insurance and the interests of consumers. The arbitrator must consider whether the premium is sufficient to fully fund the present and future liability of the insurer.
Amendments Nos 5, 6 and 26 restore the existing words of the Act concerning the reference to third party insurers. Amendments Nos 7 to 11 concern section 44C relating to the giving of particulars by the claimant. These amendments clarify that where liability is an issue then the requirements of section 44C, a precursor to going down the conciliation path, do not apply. In such circumstances the matter can proceed straight to litigation in the form and with the information required.
Amendment No. 12 clarifies the rights of insurers where there is a failure by a claimant to comply with section 44C. Amendments Nos 13 and 14 insert new sections 44E, 44F, 44G and 44H. These sections deal with the giving of interim notice where an injury has not yet stabilised; the consequence of a claimant’s failure to give notice under section 44C; the issuing of certificates by the motor accidents claims assessment unit to allow claims to go straight to litigation in appropriate circumstances without proceeding through the conciliation process; and the requirement of insurers to give written notice about admission or otherwise of liability.
Amendments Nos 15, 16, 17 and 18 concern section 45, which deals with the insurer’s duty to try to resolve claims and to make reasonable and necessary payments for hospital, medical and rehabilitation expenses. Section 45A is inserted to provide for the resolution of disputes about payments. Amendment No. 19 replaces the word "prognosis" in section 50A(c) with "an estimate of the future medical condition of the claimant in respect of the injuries that have not stabilised that can be assessed at the time that the details are given". Amendment No. 20 inserts revised sections 50C to 50G dealing with the procedures for conciliation and the responsibilities of the parties to make and respond to offers.
Amendments Nos 21, 22, 23, 24 and 25 make minor amendments to new sections 50H, 50I, 50K and 50L. These are all consequential amendments arising from the removal of the onus on the claimant to make the first offer and the subsequent cost penalties that follow. Amendments Nos 27, 28, 29, 30, 32, 33 and 34 are all minor. They flow from the change in the cost penalty structure, which will no longer require the claimant to meet all legal costs of the matter where the claimant rejects an insurer’s offer. Amendment No. 31 deals with the situation in which the claimant does not provide particulars
within the specified time frames and allows claims to be revived.
All the amendments were formulated in deep consultation with the interested parties. I believe that they are all sensible technical amendments which revise and improve the bill. I have no embarrassment about the bill needing revision and improvement. That is the way of the political process. The Government is glad to take on board the appropriate comments of expert parties. We have done so in these amendments and they reflect advice and consultation.
The Hon. R. S. L. JONES [8.28 p.m.]: I move:
That amendment No. 20 be amended by inserting at the end of proposed section 50E:
(7) The counter-offer must specify that the claimant may be liable to pay his or her own legal costs and half of the prescribed conciliation fee if the claimant rejects the counter-offer and the conciliator assesses an amount of damages that is equal to or less than the amount of the counter-offer.
I am concerned that those who reject the counteroffer may not be aware that they could end up much worse off in having to pay substantial legal fees. The Government has agreed to allow these words to be inserted. It is not a significant amendment; nevertheless, it might save a few people from having to pay extra costs after rejecting a counter offer.
Reverend the Hon. F. J. NILE [8.29 p.m.]: The Christian Democratic Party supports the amendments moved by the Government. The 34 amendments cover a wide area. We have had discussions with the stakeholders, including the Insurance Council of Australia, which indicated that there were problems with the bill. The amendments have been formulated to remove the problems. The extent of the amendments highlights the need for more consultation. The Insurance Council of Australia wrote:
CTP insurers were not initially consulted in relation to the content of this Bill. As a result, insurers had no opportunity to guide and assist the Government in the development of proposals which would genuinely improve the operation of the compensation scheme, and reduce the cost of premiums.
The Government has had to move a number of amendments to address potential problems in this regard. I am not criticising the Attorney General - he is not always the person who should be involved in such consultation. However, this bill has been introduced without appropriate consultation. The Christian Democratic Party supports the amendments, which may not have been necessary if appropriate consultation had taken place.
The Hon. J. P. HANNAFORD (Leader of the Opposition) [8.30 p.m.]: The fact that the Government has moved 34 amendments to the bill indicates that it got it wrong. However, the Attorney General is now close to getting it right. The Opposition supports the amendments. I said during the second reading debate that this bill was driven otherwise than out of the Attorney General’s Department and that there was no consultation. The various interest groups that have since been consulted agree with the amendments. As is clear from documents that have been made available, further agreement could have been reached on other issues, which may have further improved the proposed legislation. However, because of the exigencies of time the Government has not been able to pursue the necessary negotiations to reach such agreement.
Therefore, more time is needed to finetune the proposed legislation to achieve further cost refinements in the operation of the motor accidents scheme. The proposed legislation has been driven out of the Cabinet Office and the Premier’s office, not as a result of changes being driven by the Motor Accidents Authority, the insurers or any other party. It was left to the Attorney General and the Motor Accidents Authority to clean up the mess. It is acknowledged by those parties that, to the best of their ability, these amendments will improve the proposed legislation, which is why the Opposition supports them. I agree with the comments made by Reverend the Hon. F. J. Nile: Had there been appropriate consultation in the first place a better bill would have been introduced and had there been time to pursue the required consultation we may have been in a position to consider even more amendments to further improve the bill.
I have said in the past that we must continue to monitor the operation of the motor accidents legislation. Further improvements could be made to the operation of the scheme. I assure honourable members that after 27 March 1999 a coalition government will pursue consultations with all interested groups to ensure an even better scheme. I commend the Law Society, the Bar Association and the Insurance Council for the way in which they sought to work together to try to achieve improvements to the proposed legislation. It is sometimes difficult to get those three organisations to agree - and agreement was not achieved on all of the matters raised. Having been faced with the Government’s legislative program to reform the
Motor Accidents Act they have done their best to come forward with proposals that are acceptable. The amendments are supported by all honourable members.
The Hon. Dr A. CHESTERFIELD-EVANS [8.34 p.m.]: The Australian Democrats are pleased to support this bill. It is disconcerting that the amendments are almost as thick as the bill, which makes me wonder how it was put together. The proposed legislation provides for better conciliation. It is similar to workers compensation procedures in that it deals with injured people and their rehabilitation with moneys provided to them through insurance. I wish to address the amendment moved by the Hon. R. S. L. Jones. From my experience, people who are injured are often disappointed with their offers of settlement. In the debate on the workers compensation legislation I spoke about the table of maims and restitution for the rest of one’s life for loss of income as a result of disability or unemployment. If people have unrealistic expectations and they reject an offer, they should not then be heavily penalised. The amendment of the Hon. R. S. L. Jones goes some way to addressing that situation. People will be informed of the consequences if they reject an offer.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [8.36 p.m.]: The amendments reflect a consultative process. The Government has appropriately taken on board various comments made by the legal profession and other participants in the process, for which I do not think the Government should be criticised. The large number of amendments is a result of the commentary that has occurred on the bill. I am entirely unembarrassed by moving amendments that reflect the consultative process. The Government supports the amendment moved by the Hon. R. S. L. Jones, which is consistent with the broad intention to encourage early settlement of claims and accords with the principles of natural justice. I thank the honourable member for his contribution to this procedure.
Amendment of amendment No. 20 agreed to.
Amendment No. 20 as amended agreed to.
Amendments Nos 1 to 19 and 21 to 34 agreed to.
Bill reported from Committee with amendments and passed through remaining stages.
CRIMES LEGISLATION AMENDMENT (CHILD SEXUAL OFFENCES) BILL
Debate resumed from 28 October.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [8.41 p.m.], in reply: I thank honourable members for their contributions to this debate. It is clear that all honourable members are concerned to ensure that the criminal courts deal with child sexual assault appropriately and that both of these measures will therefore be strongly supported by all members. As suggested by the Leader of the Opposition the amendments he discussed on 28 October are not simple and I will discuss them briefly.
First, however, I can dispose of a difficult question that was raised by the Leader of the Opposition on that same day. The question was as follows: Why has the Government chosen not to implement the recommendation of the police royal commission contained at recommendation 82(b) on page 1326 of volume V of the report; namely, the creation of an additional offence of "permitting or suffering a child under the age of 16 years to engage in an act of indecency, or sexual intercourse, in the presence of the person charged, or exposing a child to such conduct on the part of another, in either case with the intention of deriving sexual satisfaction from the presence of the child during that activity . . ."?
I can answer that question. However, the answer is necessarily a legal one of some technicality and I trust that honourable members will bear with me, having regard to the importance of this topic. The context of recommendation 82(b) requires close examination. It can be seen on analysis that the royal commissioner identified the need for such a special incitement offence as being contingent, to a substantial degree, upon the separate recommendation of a defence of similarity of age being adopted. By way of background it must be noted that the royal commission recommended that if two persons between the ages of 14 years and 16 years were to engage in consenting sexual contact no offence should be committed by either of them. As I understand it, the idea of that recommendation was to avoid criminalising the sexual experimentation of two consenting children under the age of consent but above a certain, lower age.
That recommendation was related to the recommendation with regard to a uniform age of
consent for straight, gay and lesbian sexual contact, but is conceptually separate from it. I understand that a similar defence exists in both Victoria and the Australian Capital Territory. Were that recommendation to be adopted, it could be seen that the normal principles criminalising the incitement of criminal offences would not apply because neither of the children involved would have committed an offence. It was that result which substantially led the royal commissioner to recommend that, if the recommendation with regard to the defence of similarity of age were adopted, that gap in criminality with regard to persons who incite such behaviour should be filled by the creation of a special incitement offence.
The Government does not propose to bring forward legislation adopting the recommendation with regard to the defence of similarity of age. Therefore, I do not believe that there is any gap that needs to be filled by the creation of a special offence. That is so for three reasons at least. First, there already exists in New South Wales the general common law offence of incitement of a crime. It criminalises those who encourage persons under the age of consent to have sex with each other. Second, the general law regarding ancillary liability by way of being an accessory before the fact to a crime, or a principal in the second degree to a crime, separately achieves the same result.
Third, such behaviour - that is, an adult person encouraging two children between the ages of 14 years and 16 years to have sexual contact with each other - would, I am confident, be caught by the offence contained in section 61N of the New South Wales Crimes Act; namely, committing an act of indecency with or towards a person under the age of 16 years, or inciting a person under that age to an act of indecency with or towards that person or another person. In short, it seems to me that a close reading of the recommendation in question reveals that it was contingent to a large degree upon the adoption of another recommendation. Since the Government does not propose to adopt that other recommendation, it seems to me that implementation of recommendation 82(b) is unnecessary and apt to lead to confusion.
I turn now to discuss the amendments suggested on 28 October by the Leader of the Opposition and referred to in passing by the Hon. Dr A. Chesterfield-Evans. These amendments were directed to the offence of persistent sexual abuse of a child only. They do not affect the other offence of loitering whilst being a convicted child sex offender. The offence in question is designed to help a child who has been the victim of child sexual assault to give evidence without the requirement of unnecessary particularity about dates and times. The offence as drafted by the Government is consistent with the particular recommendation of the Royal Commission into the New South Wales Police Service on this topic. It is also consistent with the position in every other State and Territory of Australia.
The amendments suggested by the Opposition would have changed the whole nature of the offence of persistent sexual abuse of a child. Rather than focusing on one child, the amendments would make the offence apply to any number of children. The Government opposes that approach for the following reasons. First, take the case of a defendant charged with offences against a large number of children. In some circumstances the prosecution may wish to separate the charges against different children so as not to have one huge and lengthy trial. Such a trial may be very difficult to follow for a jury and be unwieldy for a judge.
Second, we already have rules of evidence that permit trials of more than one crime to proceed together. Furthermore, we have rules that permit trials of an accused person for more than one crime committed against more than one person to proceed together. A good example is the trial of Ivan Milat in which all of the murder counts were before the one jury. An even better example is the well-known trial of an alleged child sex offender which is proceeding now and which one ought to be cautious about commenting on. The jury has not been restricted to evidence about one alleged crime or even about one child. The jury is hearing evidence of a number of alleged crimes said to have been committed against a number of children.
These rules are quite complex and have been developed to strike a balance between the rights of the prosecution and the accused. One of our basic rules is that trials should be fair and free from unnecessary prejudice. However, there may be situations in which evidence which is unfair to the accused in this way may be so probative of the guilt of the accused that it is in the interests of justice that the jury have that evidence before it. This may be the case where the evidence would indicate a tendency that the accused had to act in a particular way which is consistent with his or her guilt.
Another example may be where the evidence is of a provable event which, by a coincidence argument, makes an act done by the accused which is in issue at the trial significantly more likely to have occurred. These situations are provided for in the Evidence Act 1995. Section 97 allows for the
admission of evidence of tendency and section 98 for the admission of evidence of coincidental events. In the application of these sections the courts are given guidance by section 101 of the Act, which provides that such evidence should only be used when the unfairness to the accused is significantly outweighed by its probative value.
The Evidence Act was introduced by the Government after lengthy and exhaustive consultation and consideration. The aim of the Act is to provide a transparent regime for the admission of evidence before courts in this State in a manner best suited to a fair, just and efficient resolution of matters which come before them. The Act as it now stands reflects a distillation and refinement of legal principles developed over many years and should not lightly be circumvented. I thank the Leader of the Opposition for his careful reconsideration of the Opposition’s amendments and for his comments on them. Another aspect of this matter is the move toward uniformity in the State and Commonwealth jurisdictions in relation to criminal offences and their prosecution. The Evidence Act was introduced with this end in mind. While this is not a matter to be sought at all costs, it is nevertheless a desirable end where possible.
It should, however, be noted that no other Australian jurisdiction, in introducing offences such as the one proposed, has done so in the terms suggested by the proposed amendments which have been circulated. The point is that the criminal justice system has grappled with this problem for many years and has come up with a workable, balanced solution to it. The amendments proposed by the Opposition will abolish that solution in one fell swoop. Child sexual assault is a horrible crime, and no-one in this House could deny that. It is an horrific crime, difficult for any civilised mind to contemplate. The concern of the Government is that these amendments will mean that in some cases at least trials are not fair. The creation of the persistent sexual abuse of a child offence is a big step forward in making the criminal justice system more responsive to victims of child sexual assault.
The next matter which I wish to discuss was raised by the Hon. Franca Arena and the Hon. A. G. Corbett. Both honourable members drew attention to the fact that, with regard to the offence of persistent sexual abuse, the operative age of a child is 18 years. However, with regard to the offence of loitering by a convicted child sex offender, the operative age of a child is 16 years. Both honourable members asked why this distinction was drawn, and I am happy to provide an answer. The first offence of persistent sexual abuse of a child is designed to facilitate the giving of evidence, perhaps many years after the event, about sexual offences. The Crimes Act currently contains offences with regard to which the age of consent is 18 years and not 16 years. Examples include the offences that are specific to sexual contact between two males, and the offence of engaging in sexual contact with a child prostitute.
The view of the Government is that it would be anomalous to permit offences committed against children under the age of 16 years to be facilitated by the offence of persistent sexual abuse of a child, but not offences, like the ones described above, committed against persons who are under the age of 18 years. That is why the operative age is 18 years with regard to persistent sexual abuse of a child. Were it otherwise, the Government would be indirectly undercutting those offences that have an operative age of consent of 18 years.
However, the other offence of loitering whilst being a convicted child sexual offender is directed towards a completely different aim; namely, the protection of young children in public places. That offence is not directed towards protecting older persons. I am sure this House will agree that this new offence of loitering is already rather stringent in that it may call upon very many convicted persons to provide a reasonable excuse as to why they were in a public place at a certain time.
To change the definition of a child within that offence from 16 years to 18 years would make the offence, I would suggest, too stringent, and for no good purpose. In short, each offence is directed towards a completely different aim. It is true that, at first blush, the different definitions of a child may seem odd. On reflection, however, one can see that those different definitions are necessary so that the two new offences may achieve their different purposes.
Incidentally, whilst on the topic of the convicted child sex offender loitering offence, I should clarify something mentioned by the Leader of the Opposition. It was indeed intended that schools be included in the offence, whether children are present or not. If that is stringent, and by its terms more stringent than the Victorian legislation as suggested by the Leader of the Opposition, then the Government does not shrink from it.
There is one final matter arising from the debate with which I wish to deal. On 28 October the Hon. Franca Arena noted that the recommendation of the police royal commission was in turn based upon a recommendation of the discussion paper pertaining to sexual offences released by the Model
Criminal Code Officers Committee in 1996. The honourable member expressed disbelief that something so useful as the new offence of persistent sexual abuse of a child could have emanated from that report. She proceeded to suggest to the House that that report had made a number of ludicrous recommendations. To put the minds of honourable members at ease, and to set the record straight, I shall briefly address the honourable members’s comments.
In doing so, I make clear that the Model Criminal Code Officers Committee is a creature of the Standing Committee of Attorneys-General, and its work is co-ordinated by the Federal Attorney-General. Furthermore, the mere fact that something has been recommended by that committee certainly does not mean that this Government will implement that recommendation.
Having said that, the honourable member suggested that the committee had recommended that there be an age of consent of 10 years. That is quite incorrect. The committee recommended that there be a uniform age of consent of 16 years. Reading the discussion paper of the committee makes that perfectly clear. Secondly, the honourable member suggested that the committee recommended that, in some circumstances, there be no age of consent at all. Again, with all due respect, that is simply incorrect. No responsible criminal law reform body could suggest such a thing. The committee recommended nothing of the sort.
The committee did recommend that there be certain special defences that could operate with regard to a child who is over a certain age. I will not go into the technicalities of all that now. Suffice it to say that the committee recommended nothing more than what is already the law in both Victoria and the Australian Capital Territory. Finally, the honourable member quoted the conclusion and recommendation of the committee with regard to the offence of incest. Those quotations were correct. But to my mind it was not made clear by the honourable member that the committee was suggesting that there should not be such an offence only in the case of adult-consenting incest. Of course, the committee made clear that persons who are guilty of sexual offences against children under 16 years, whether a relative or not, should be dealt with very severely indeed by the criminal justice system.
No doubt the Hon. Franca Arena’s misstatements were accidental and ancillary to her well-known desire to protect children from sexual assault. However, I consider that the work of the Model Criminal Code Officers Committee with regard to criminal law reform has often been very valuable and has always been thought provoking.
I am glad to have had the opportunity today to set the record straight about these rather complex matters and eliminate any false conceptions in the community about the suggestions from the Model Criminal Code Officers Committee or indeed any suggestions about the legislative changes that might be proposed by the Government. The Government has no agenda to change the age of consent and does not propose to do so. No-one would be more trenchant than myself in condemning the abuse of children in a sexual sense. It is absolutely appalling and the law ought to be stringent in that respect.
Motion agreed to.
Bill read a second time.
The Hon. J. P. HANNAFORD (Leader of the Opposition) [9.00 p.m.]: During my contribution to the second reading debate I indicated that the Opposition considered it desirable that the operation of the bill should be extended. I indicated that rather than the bill being limited to multiple offences in relation to a single child it should be extended to multiple offences involving multiple children. I also indicated that I would move a number of amendments at the Committee stage to achieve that objective. However, as a result of further advice it is clear that to amend the bill would cause more problems than it would correct and, therefore, it is undesirable that the amendments be pursued.
To indicate the type of amendments that would have been necessary to implement the objectives, I will read onto the record the substance of the amendments that have been circulated. On page 3, schedule 1, the word "child" would have been omitted and the word "children" inserted. On the same page at line 12 the words "or particular children" would have been omitted and the words "in relation to a particular child" inserted. Similar amendments would have been moved to page 4, line 8; page 4, line 27; and page 4, line 34. Had the amendments been moved they would have implemented the direction I outlined in my contribution to the second reading debate.
The offence of persistent abuse of a child is designed to help a person who has been the victim of child sexual abuse to give evidence without the requirement of unnecessary particularity about dates
and times. The offence as drafted by the Government is consistent with the recommendations of the police royal commission. It is also consistent with offences in every other State and Territory in Australia. The amendments would have enabled the offence to apply to any number of children rather than to just one child. It has become apparent that there are inherent difficulties with the approach I outlined in my contribution to the second reading debate.
To a large extent, the law as it stands allows, in appropriate cases, for the trial of more than one crime committed against more than one person to proceed together. The trial of Ivan Milat is an example. It would not always be advantageous for the prosecution to run as a single trial what would, in effect, be three or more separate trials when the only relationship the offences have to each other is that they are of a sexual nature and that they are alleged to have been committed by the same person. This may lead to a Crown case that lacks coherence and is confusing to the jurors.
Just as the case in relation to one victim may be assisted by a strong case in relation to another victim, the reverse may also be true to the detriment of that victim. In relation to cases in which the prosecution of the matter would be assisted by the calling of evidence of other alleged offences, the provisions of the Evidence Act 1995 already allow for this to happen in appropriate cases. A basic rule in the conduct of criminal cases is that trials should be fair and free from unnecessary prejudices. For example, in the normal run of things it would be unfair in a trial involving stealing for the jury to know automatically that the accused had been previously convicted of stealing or that other offences of dishonesty against the accused had not been dealt with.
However, situations may arise in which it is in the interests of justice that evidence that is unfair to the accused in this way may nevertheless be led by the prosecution because it is so powerfully indicative of the accused’s guilt. The Evidence Act 1995 provides for this situation. Section 97 allows for the admission of evidence that goes to show that an accused had a tendency to act in a particular way. This can be evidence of a similar offence committed on a different victim. Section 98 may allow the admission of evidence of events in relation to another victim that is so coincidental to an event relevant to the prosecution case that it significantly increases the likelihood that the event in question occurred.
Section 101 of the Act provides that tendency and coincidence evidence can be used against an accused when the probative value of such evidence significantly outweighs any unfairness to the accused. Although nobody can deny the terrible nature of child sexual assault, it is important to bear in mind the essential requirement of our criminal justice system: all accused persons are entitled to a fair trial according to law. In short, in some cases the amendments may actually hinder the successful prosecution of child sex offenders; in others they will cut across already existing facilitative provisions in arbitrary and even unjust ways.
For these reasons I have come to the view that the amendments should not be pressed. However, the Opposition is concerned to ensure that trauma for victims is minimised. This is a direction in which further research should be undertaken to determine whether there are ways to reform the criminal law to lesson the trauma on victims and ensure that the truth is established. The amending bill introduced by the Government is an important reform that has the support of the Opposition. Further research can be undertaken to determine whether we can minimise further the legalisms that cause trauma in this area of the law.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [9.07 p.m.]: I commend the Opposition for taking on board the technical difficulties in the amendments and adopting an entirely responsible position. Let us hope that attitude prevails in any debate about the criminal justice system during the lead-up to the next election. Perhaps that is an overly optimistic view. I congratulate the Opposition on taking such a responsible position.
Schedule agreed to.
Bill reported from Committee without amendment and passed through remaining stages.
JUSTICES LEGISLATION AMENDMENT (APPEALS) BILL
The Hon. J. P. HANNAFORD (Leader of the Opposition) [9.12 p.m.], by leave: I move Opposition amendments 1 to 6 in globo:
No. 1 Page 5, schedule 1, lines 27 to 29. Omit all words on those lines.
No. 2 Page 5, schedule 1, lines 30-32. Omit all words on those lines. Insert instead:
105 Appeals against interlocutory orders of Magistrates
An appeal may not be made against any interlocutory order made by a magistrate, except with the leave of the Supreme Court.
No. 3 Page 10, schedule 1, lines 13 to 15. Omit all words on those lines. Insert instead:
115 Appeals in relation to committal proceedings
An appeal may not be made in relation to committal proceedings, except with the leave of the Supreme Court.
No. 4 Page 14, schedule 1, lines 31 to 33. Omit all words on those lines.
No. 5 Page 16, schedule 1, lines 32 to 38. Omit all words on those lines. Insert instead:
that it is in the interests of justice to grant the application.
No. 6 Page 17, schedule 1, lines 13 to 18. Omit all words on those lines. Insert instead:
The aim of these amendments, which I understand are supported by the Government, is to make the appeals system much more efficient. When I circulated these amendments the Government stridently attacked the Opposition in the media for trying to gut the bill. I cannot understand the Attorney pursuing such an attack, unless he had received a message from the media unit in the Premier’s Office to "go out and attack Hannaford on these issues".
Reverend the Hon. F. J. Nile: The Attorney does not use that sort of language.
The Hon. J. P. HANNAFORD: It is inconsistent with the language used by the Attorney General. In fact, I can imagine the Attorney asking the Premier’s Office media unit, "What am I to say?" and being told, "Just go out and say that Hannaford is trying to gut the bill." So it was that the expression was used by the Attorney. I guess he would have choked when uttering those words, but he did use them. At the time the Bar Association stridently attacked the Government and the Attorney for using that expression. I said then that I totally sympathised with the Government in its attempts to streamline the appeals system and minimise obvious abuses within the system.
At the time I took the view that had there been more consultation with the relevant professionals a better system would have been developed. Constraints on the Government to get a bill into the Parliament before the end of the session obviated the necessary level of consultation. Over time I worked with the Law Society and the Bar Association to develop amendments because, as I said, the direction in which the Attorney wanted to go is not inconsistent with the direction in which I would want to go as Attorney, and because I am sympathetic to the problems that exist.
However, there is a need to acknowledge that defendants have rights and that from time to time the courts get it wrong. The constraints that the bill would place on litigants within the system are far too limiting. Opposition amendments Nos 1 to 6 will give courts, when considering appeals, complete discretion on whether to grant applications for leave to appeal, and to do so having regard to concepts of interests of justice that have been well understood by the criminal justice system for generations.
I understand the Government will support these amendments. If that is so, I welcome that stance by the Government as I believe that the amendments will improve the administration of the criminal justice system. Later, I will speak to other amendments with which, I understand, the Government has difficulties but which also are important in streamlining the appeal system while retaining the rights of the parties. With those few comments, I commend the amendments to the Committee.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [9.16 p.m.]: The Leader of the Opposition is correct in saying that the Government will accept the amendments. It is receptive to good ideas. That is the kind of government it is - reasonable, rational and urbane. The Government accepts the amendments because they are appropriate. The amendment proposed to new section 104(2)(b) will remove the right of an unsuccessful prosecutor to appeal to the Supreme Court on a question of mixed fact and law. It is acknowledged that, currently, an unsuccessful prosecutor has a very limited right to appeal on a question of mixed fact and law, that right being limited to occasions when jurisdictional error is alleged under section 101 as presently enacted. For that reason, the proposal to remove the right of an unsuccessful prosecutor to appeal to the Supreme Court on a question of mixed fact and law is not opposed.
Amendment No. 2 will mean that an appeal against an interlocutory order made by a magistrate
will be able to be made only with the leave of the Supreme Court. As such an appeal will not be an automatic right but will require the leave of the Supreme Court, the Opposition amendment is supported. Generally, the Opposition amendments are constructive. I acknowledge the contribution of the Opposition to the development of the model in the bill.
Amendments agreed to.
The Hon. R. S. L. JONES [9.18 p.m.]: I move amendment No. 2 circulated in my name:
consequence, if an application for vacation of the order is made within 12 months of the dismissal and the District Court is of the opinion that it is in the interests of justice to grant the application.
No. 2 Page 10, schedule 1, lines 1 to 4. Omit all words on those lines. Insert instead:
(i) remitted the matter on appeal to the Magistrate to hear and determine and the Magistrate has heard and determined the matter, or
This amendment seeks to clarify that a person’s right of appeal to the District Court is not affected if the person has been unsuccessful in seeking leave to appeal to the Supreme Court on a question of mixed law and fact. As the bill is currently drafted, a person may not appeal to the District Court if proceedings in the Supreme Court have begun. A person must elect to either appeal to the Supreme Court on a question of law alone, seek leave to appeal to the Supreme Court on a question of mixed law and fact on the basis that the evidence does not support the conviction, or seek a rehearing in the District Court.
It is argued that the simplicity of recourse to the Supreme Court on a question of law would be missed if the current provision prevails, as would the important supervisory role taken by the Supreme Court of the Local Court. Without recourse, the role of the Supreme Court as a significant source of guidance and assistance to the Local Court would be greatly diminished, and the body of case law developed by the Supreme Court as applicable to the Local Court would be significantly reduced.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [9.20 p.m.]: I stand like Lord Clive of India, amazed at my own moderation. The Government supports this amendment.
The Hon. J. P. HANNAFORD (Leader of the Opposition) [9.20 p.m.]: The Opposition also supports the amendment.
Amendment agreed to.
The Hon. J. P. HANNAFORD (Leader of the Opposition) [9.21 p.m.], by leave: I move Opposition amendments Nos 7, 8 and 9 in globo:
(ii) the Supreme Court refused leave to appeal on a question of mixed law and fact.
No. 7 Page 17, schedule 1, lines 20 to 23. Omit all words on those lines. Insert instead:
(1) An appeal against a conviction or an order is to be by way of rehearing on the transcripts of evidence heard before the Magistrate who made the conviction or order concerned, except as provided by this section.
(2) An appeal against a sentence is to be by way of rehearing on such evidence as is relied on by the appellant and respondent at the hearing of the appeal.
No. 8 Page 17, schedule 1, lines 28 to 31. Omit all words on those lines. Insert instead:
(3) On an appeal, new evidence may be adduced by both parties.
(4) On an appeal, witnesses may be subject to further cross-examination:
(a) without the leave of the District Court, if notice of the proposed cross-examination is given to the other party, not later than 28 days before the date fixed for the hearing of the appeal or within such shorter period as may be permitted by the Court, or
(b) with the leave of the District Court.
(5) The District Court may determine that an appeal against a conviction or an order is not to be by way of rehearing on the transcripts of evidence (in whole or in part) if it is of the opinion that it would be unfair to either party to proceed on that basis.
No. 9 Page 18, schedule 1, lines 1 to 26. Omit all words on those lines.
These amendments are substantive. The bill provides that an appeal is to be by way of a rehearing on the transcripts of evidence heard before the magistrate who made the conviction or order or imposed the sentence appealed against. The bill further provides that on appeal the transcript is to be taken as correct and new evidence may be given only with the leave of the District Court if it considers it is in the interests of justice to do so. Clause 133 sets out the circumstances in which evidence can be given in person. The Opposition considers that the constraints imposed by the Government in new sections 132 and 133 are far too restrictive and that a more appropriate regime should be put in place.
The amendments moved by the Opposition provide that an appeal against a conviction or an order is to be by way of rehearing on the transcripts of evidence heard before the magistrate. That is exactly the same as the present provision in the bill. Matters will then proceed by way of rehearing on the transcripts, except as provided for in the proposed new section. An appeal against a sentence will be by way of rehearing on such evidence as is relied upon by the appellant and the respondent. A mechanism will then be put in place to deal with any application that may be made by the convicted person to bring new evidence before the court.
New section 133 provides that on an appeal new evidence may be adduced by both parties. Rather than using government’s proposal, with the presumption in favour of the use of transcripts, the Opposition amendments make it clear that new evidence may be adduced and that witnesses may be subject to further cross-examination. However, as the Chief Judge has stated - and this was referred to in the second reading debate - there is concern about the potential to further abuse witnesses by bringing them back before the courts or to waste court time by requiring witnesses to attend court and then not calling them. Another problem raised by the Chief Judge is that the parties may estimate that the hearing of the case will take one day, but, because of the number of witnesses called, more time is needed.
The Opposition amendments, which are strongly supported by the practitioners in this field, propose that witnesses may be subject to further cross-examination. However, parties must have the leave of the District Court before there can be any such further cross-examination. Parties will have to make an application to the District Court and secure the approval of the judge to cross-examine the witnesses. That leave will not be granted unless the court is satisfied that it should be given. The Opposition amendments also provide that such applications have to be made not later than 28 days before the date fixed for the hearing of the appeal or within such shorter period as may be permitted by the court. Under the proposed structure a defendant will have 28 days before the hearing to identify the witnesses that will be required. The defendant then has to seek the approval of the court to have those witnesses brought before the court for cross-examination. New section 132(5) states:
The District Court may determine that an appeal against a conviction or an order is not to be by way of rehearing on the transcripts of evidence (in whole or in part) if it is of the opinion that it would be unfair to either party to proceed on that basis.
Under that provision judges are given total control of the appeal. The court will be able to administer the way in which appeals are run. Primarily appeals will be based on the transcripts, but if good reason can be shown 28 days before the hearing that further witnesses are needed, the parties must establish to the judge’s satisfaction the need for those witnesses and the reason for calling the additional evidence. If the court accepts that it is reasonable and in the interests of justice leave will be granted. That will also mean that 28 days before the hearing the court will know how many witnesses will be involved and how many days the case will take. The appropriate time can then be allotted. Based on information provided by the experts in this field, that process will lead to a better administration of the criminal justice system than the process advocated by the Government.
Over the past few years there has been a great deal of debate in the legal environment - and honourable members have heard reference to it previously - about the need for judges to take greater control of the justice system, rather letting it remain an adversarial system. If judges take greater control greater efficiencies will be achieved within the justice system. For several years - on the initiative of my predecessors and continued by me and by the present Attorney General - judges in the civil jurisdiction have taken greater control of the system, and significant efficiencies have been achieved. Under the provisions of my amendments, which the Law Society and the Bar Association have now agreed to, judges in the District Court will take a greater part in the administration of criminal cases. If the House supports these amendments, that will be a significant breakthrough.
When I was Attorney General I circulated a discussion paper on judicial administration of the criminal justice system. Justice Nader of the Northern Territory Supreme Court was appointed by me to confer with all parties and seek to achieve judicial management of criminal cases. I am still bleeding from the knife wounds from those in the criminal justice world who said that judicial management of criminal cases was an absolutely radical and outrageous reform, that the criminal justice system must be completely adversarial and that the criminal justice system would be undermined if judges took control.
I give the Attorney some credit. His recommendations were so far out in left field that they led criminal justice practitioners to understand that the best way to go was to let the judges take control. The efficiencies that have been gained in the civil justice system can now be applied in the
criminal justice system. That is why I commend these changes, which are a significant step forward and will lead eventually to greater judicial administration. People will not be calling witnesses simply for the sake of calling them, and judges will ensure that issues in the criminal justice system are identified and addressed in the courts. I commend the amendments to the Committee because I believe they are a better step forward than the approach taken by the Attorney.
Had the Attorney proposed in his original bill the amendments I am now advocating, the traditional people in the criminal justice system may not have accepted them. However, faced with the Attorney’s alternative, they are now saying that it is time to address reform. My reform proposal is much more significant and will be more beneficial to the system than the Attorney’s proposal. Therefore, I commend this amendment to the Committee.
The CHAIRMAN: I indicate to the Hon. R. S. L. Jones that if Opposition amendment No. 9 is accepted by the Committee he will not be able to move his amendments Nos 4 and 5. If he wishes to move those amendments he must do so before the question on Opposition amendment No. 9 is put; and, if he does, Opposition amendment No. 9 would be moved first.
The Hon. R. S. L. Jones: If the Opposition’s amendments fail, will I be able to move my amendments?
The CHAIRMAN: Yes.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [9.32 p.m.]: To placate honourable members who may be concerned about this change to appeals from magistrates to the District Court, the Government is committed to conducting a thorough review of the operation of this bill should it be passed. Honourable members will be aware that an ongoing review of the changes to the committals regime is being undertaken by a group chaired, I am pleased to say, by Justice Dowd. The interim report suggests that the committals reform is proceeding well. A similar review of the new appeals procedures will be undertaken to ensure that they are operating in a just and efficient manner, and the Government will amend the procedures if the review indicates that that is necessary.
I need to take a step back and remind honourable members about what I would describe as the anomalous and anachronistic procedure of the de novo appeal from the magistrate to the District Court judge. In a de novo appeal the whole case is conducted again; all of the evidence is reheard by way of examination in chief and cross-examination. The victims, whether of sexual assault or some other crime, must give evidence again in the District Court, despite the fact that they gave evidence and were cross-examined before the magistrate. The whole case must be developed again.
That phenomenon is not frequently found in the liberal democratic world. It is an anomaly and an anachronism. From where does it stem? It stems from the era when magistrates were not legally qualified - they were known as police or stipendiary magistrates - and there was no record taken of the evidence and proceedings. I am old enough to remember the days when the evidence before a magistrate was bashed out by a clerk on a typewriter - and it was a very unsatisfactory record of proceedings. So it is entirely understandable that during the era of lay magistrates and no proper record, a de novo appeal was made to what were then called quarter sessions.
The magistracy comprises professional, legally qualified judicial officers, and a proper record is taken of proceedings. Why should a victim need to give evidence again on an appeal before the District which is the effect of the Opposition’s amendment? The Opposition is saying that if a defendant gives notice not later than 28 days before the date fixed for the hearing of the appeal, all the witnesses will have to give their evidence again; they will have to be examined in chief, cross-examined and re-examined. It is saying that the whole case will have to be run again before the District Court judge on appeal from the magistrate. In essence, the Opposition is defending the anachronistic de novo appeal: run the whole case again.
I shall illustrate the anomaly. Every day the District Court convicts people of more serious crimes than does the Local Court. and those convicted there can appeal to the Court of Criminal Appeal, but only on questions of law and fact. No sensible person would suggest - indeed, literally no-one would suggest - that a defendant should be able to run the whole case again before the Court of Criminal Appeal. However, in the Local Court, which deals with more minor offences, the anomaly is that there is an unlimited right of appeal to run the whole matter again before the District Court.
The clear anomaly in the current law is based on historical circumstances; it is not based on serious precedents in other liberal democracies. The Opposition is saying that victims must give their evidence and be cross-examined twice. I understand
where the defence barristers are coming from. If I were a defence barrister practising law it would be nice to have a dress rehearsal of the cross-examination before the magistrate and to run through the cross-examination of witnesses again on appeal from the District Court, because that would be to my advantage. But why should that luxury be provided in that area of crime when, either way, there is no such facility in relation to the more serious categories of crime dealt with by the District Court on appeal to the Court of Criminal Appeal?
Obviously the Opposition has acquiesced to the views of the Law Society and the Bar Association. I have the greatest respect for the opinions of the legal profession but in this instance they do not reflect public interest or modern law reform. I do not want to deny any convicted person an appeal right, but that appeal right should be based on the record; there should not be a complete dress rehearsal and then a rerun of all the oral evidence of witnesses, victims and otherwise.
There was controversy about committal hearings. The legal profession said our reforms for committals would mean that cases would be run as paper committals only, but that has not proved to be so. The advisory committee headed by Justice Dowd has given a tick to that procedure. Our reforms have not led to committals being heard purely on paper. Members of this House who are particularly concerned with the rights of victims might say that our reforms have not gone far enough.
It would be an available argument to say that victims should not be re-examined in any circumstances in District Court appeals. In fact, we have allowed for witnesses to be re-examined and cross-examined when there is good reason and when it is in the interests of justice. This reform is balanced, moderate and decent. If it is voted down, I do not want to hear anyone complain about resources for, or delays in, the District Court. We are trying to streamline the procedures. I do not want anyone to say that victims must be compulsorily examined and re-examined in District Court appeal hearings.
The Opposition has got it wrong with this amendment. I have tried to suggest respectfully to the Opposition that it ought to rethink its position, but it seems to be acceding in some kind of knee-jerk reaction to the understandable interests of the legal profession. Does the Opposition want victims to appear again as of necessity and as of right in the District Court on appeal cases? Or does it want, as we suggest, to give District Court judges the power and discretion to decide that in a particular case perhaps the victim should be heard again, but in other cases there may be no justification for that procedure? These are not just my views. The Chief Judge of the District Court, Judge Blanch, said:
. . . I fully support the Bill which, to my mind, is long overdue in New South Wales -
I repeat: long overdue in New South Wales -
bearing in mind that this State is one of the few places in the English-speaking world where de novo appeals still exist. Can I say there are two specific reasons why I support the legislation.
The first reason is that the history of de novo appeals is that they were created to deal with a situation in the 19th century when first instance decisions were made by lay magistrates. Of course, that has not been the case in New South Wales or in most other jurisdictions for a very long time. The abolition of de novo appeals allows the Court to manage its business more effectively. It is true that most appeals proceed on the paper in any event but that is not generally known until the day of the hearing and the court time allocated has to be allocated on the basis that all the witnesses are required to give their evidence again. This leads to a significant waste of court time and a significant waste of the time of all of the witnesses. Most of the witnesses who come are police officers who could obviously be spending their time far more beneficially. Because most of the cases are, in fact, heard on the depositions the change will not have any significant effect on the way cases are heard but as I have said, it will affect the way the Court can allocate its time and it will affect all those witnesses who come who are not required. By the same token the change as envisaged will allow the Court to have witnesses come if that is justified.
That is very persuasive material. I do not want to hear in the election campaign any allegations about clogged-up lists in the District Court or about victims rights because the Opposition denies these propositions. The chief judge continued:
The second reason I support the legislation is because the present system leads to a significant abuse of the victims of crime. Because of the committals legislation where an offence is dealt with as an indictable offence, a victim generally only gives evidence once before a jury unless the preconditions for calling the witness for committal are met. In practice that has meant that victims generally give evidence only once. In summary matters, however, the victims give evidence before the magistrate and then can be required to give evidence again on a de novo appeal. Even if they are not ultimately required to give evidence in the appeal, they are usually brought to court in case they are needed. I have observed this to be a particular abuse of the system in cases where a defendant is unrepresented. If charged with a personal assault or threats of such, the defendant then enjoys the privilege of cross-examining the victim in person before the magistrate. On a de novo appeal, the defendant has the opportunity of going through this whole process again. To my observation in many cases this is simply a re-experiencing for the victim of the terror of confronting the defendant. It is a significant abuse of the system and in my view totally unjustified. There should be some method of judicial control of such an abuse and I believe this legislation achieves it.
I am not one to deny defendants their legal right to a defence; everybody must get a fair go in the legal system. But the Opposition’s amendments to this bill puzzle me. The appeal process cries out for reform. People are convicted of serious criminal offences every day in the District Court, and they have a right of appeal to the Court of Criminal Appeal. That is only right and I shall support that right to the end of my days.
They can say to the Court of Criminal Appeal, "I have been wrongly convicted and there is no evidence to convict me." But they cannot say, "Hey, we’ll get the witnesses here for another round. They’ll give oral evidence again, they’ve got to be cross-examined again." That is an inconceivable procedure! Surely it represents an anomaly between minor crimes dealt with by the Local Court with a right of appeal de novo to the District Court and major crimes dealt with on indictment before the District Court with a right of appeal based only on the facts and the law to the Court of Criminal Appeal. No sensible or rational person, no lawyer, however minded towards civil liberties he or she is, suggests being able to run the case again.
The Hon. J. P. HANNAFORD (Leader of the Opposition) [9.46 p.m.]: The Attorney sought to use as a powerful argument in favour of his position the letter of the Chief Judge of the District Court. However, the Committee should be aware that the letter is dated 12 October and that the amendments were not drafted and circulated until 19 October. For some reason the Attorney does not provide to the House the comments, which might be available, of the chief judge on the amendments.
The Hon. A. G. Corbett: Do you have them?
The Hon. J. P. HANNAFORD: No, because one would know from dealing in these matters that if the chief judge were to comment now, he would be getting directly involved in the political foray. I have little doubt he would agree with the observations of Ian Barker, QC, who is one of the most eminent criminal lawyers in this country, on the amendments. I draw some comfort from the statement of the chief judge, in the last line the Attorney quoted, that there should be some method of judicial control of such an abuse.
That is exactly what the Opposition’s amendments achieve. The amendments give judges complete control of the appeals process to make sure the problems adverted to by the chief judge are overcome totally. However, the Attorney said also that victims would be required to appear as of necessity and as of right. They are the Attorney’s words. Effectively that says that every victim will be drawn back before the court.
The Hon. J. W. Shaw: That is correct.
The Hon. J. P. HANNAFORD: That is totally incorrect. The Committee should pass the amendments. Amendment No. 7 inserts into new section 132 a new subsection (1), which states:
An appeal against a conviction or an order is to be by way of rehearing on the transcripts of evidence heard before the Magistrate who made the conviction or order concerned, except as provided by this section.
Amendment No. 8 inserts a new subsection (5), which states:
The District Court may determine that an appeal against a conviction or an order is not to be by way of rehearing on the transcripts of evidence . . . if it is of the opinion that it would be unfair to either party to proceed on that basis.
The court has absolute control. There will be a rehearing on the transcripts unless the court considers that it is unfair on either party, prosecution or defence, to proceed on that basis. The court has control. But this amendment vests greater control. New subsection (4) provides that if witnesses are required for cross-examination an application must be made to the District Court 28 days prior to the hearing. The witnesses must be identified and the court must grant approval for the witnesses to appear for cross-examination. The court is given absolute control, which refutes the position taken by the Government. The Opposition commends these amendments.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [9.51 p.m.]: The Opposition amendments are completely muddled. The Opposition amendment states that if notice of the proposed cross-examination is given to the other party not later than 28 days before the date fixed for the hearing, witnesses may be subject to cross-examination. There may be some ambiguity between subsections (4) and (5) of new section 132 as proposed in the amendment, but the basic premise of subsection (4) is that if notice is given, the appellant has the right to cross-examine. The court has no discretion; it is mandatory. The evidence will be re-examined. If the requisite notice is given the oral evidence of the victim or other witnesses will be reconsidered. The Government proposes a much more sophisticated and balanced system under which the court will decide whether it is in the interests of justice for a particular witness to be cross-examined.
The Hon. R. S. L. Jones: There would have to be substantial reason.
The Hon. J. W. SHAW: I agree that there would need to be substantial reasons. The position is analogous to that of a committal. I do not recall the details of the debate in this House about committals. However, the committal monitoring committee chaired by Justice Dowd has said that the system has worked well when there is a sophisticated discretion. That discretion has two different categories: it rightly distinguishes between the victims and other witnesses. It is obviously more traumatic for victims than for other witnesses if they have to give evidence a second time. I did not want a paper committal system; I wanted a system where it would be objectively and rationally determined whether certain witnesses would be cross-examined during the committal hearing; hopefully most would not. That has happened. There is a two-tier test. In the language of the legislation, victims are now less likely to be cross-examined. Other witnesses are perhaps more likely to be cross-examined. I commend that balanced and defensible process to the House.
The Hon. Dr A. CHESTERFIELD-EVANS [9.54 p.m.]: I am always a little chary of going into areas in which I do not have expertise. I have no legal training, and I am a little in awe of the appeals process. If the court system is not able to deal with the most basic matters it is totally out of touch with the society it presumes to regulate. To the average person the legal system is frightening and complex. I always remember a German fellow who said about the British system of law:
It is the Rolls Royce of the system; the only problem is that most people can’t afford Rolls Royces.
It is very unfashionable to say that costs should limit justice. People say that we must pay for the best justice. The same is true of medicine. The cost does not matter; the technology must be available to save lives. However, in practice doctors decide who gets the benefit of the available technology. Some people die because the technology is not available, and sometimes money is not spent wisely. No-one disputes that legal aid funding has been cut. Those working in the legal aid system are upset because they believe that justice will not be done because of those cuts. The amendments seek to take the repetition out of certain aspects of the legal system.
If there is a complete rehearing, there are dangers involved in the victim having to give evidence twice. Time is wasted when police are called off the beat to give evidence. All of the evidence must be given again. There may be an advantage to the appellant in the sense that the evidence may be different and in some cases might result in a different verdict. If the evidence is reviewed from the transcript some decisions would be reversed in any event. Merely because there are no witness does not mean there will be no appeal. It is obvious that if witnesses are not recalled money will be saved. One would hope that those funds will be put back into legal aid, so that more money will be available to the court system.
I believe that is the intention of the bill. It is tenuous to claim that the purpose of the bill is to save money. It would be dangerous if that led to a denial of justice, but the reality is that resources are finite. If the bill results in a reduction of duplication and that, in turn, frees resources to be used in other aspects of the administration of justice, for example, legal aid, it is worth a try.
Evan Whitton said that the adversarial system is the problem; that it would be preferable if the truth was established under a more inquisitorial system. As a layman who has seen the adversarial model in its full destructive mode, that appeals to me. This Parliament sometimes wastes a great deal of energy following the adversarial model. It would have benefited from pursuing the truth and acting accordingly. It seems to me that these amendments allow the existing duplication system to continue. The system proposed by the Government seems to offer a way forward and I believe we should adopt the proposal put forward in the bill.
Reverend the Hon. F. J. NILE [9.59 p.m.]: I speak as a layman in regard to this issue, as did the Hon. Dr A. Chesterfield-Evans. I was concerned when the Leader of the Opposition quoted the dates of the letters he received. The letter from the chief judge was dated 12 October. He said the bill was introduced -
The Hon. J. P. Hannaford: No, my amendments were circulated on 19 October.
Reverend the Hon. F. J. NILE: The judge was not commenting on your amendments?
The Hon. J. P. Hannaford: No.
Reverend the Hon. F. J. NILE: I am sorry, I misunderstood. I thought the honourable member was implying that the judge was not supportive of the Attorney General’s bill. He certainly had that bill, because I received a letter from the Bar Association dated 6 October, which referred to it. It is obvious to me that the Government intends to put
emphasis on rehearings using transcripts. Subsection (1) of new section 132 provides that the appeal is to be by way of rehearing on the transcripts, as the Attorney General has said.
New section 133 sets out the exceptions. This seems to leave the door open if there are special reasons why witnesses should be called. It is not a black and white option. It is not as though the Government wants only rehearings on the transcripts and the Opposition wants the emphasis on rehearings with witnesses. New section 133 has been criticised as being too restrictive, but it seems to me to be reasonable. That section will allow the District Court to decide whether it wishes to change from transcripts to witnesses - one or more. Paragraph (b) of new section 133(1) states:
in any other case - the Court is of the opinion that there are substantial reasons why, in the interests of justice, the witness should attend to give evidence.
The reference to "in the interests of justice" would, it seems to me, be adequate to protect the public. If rehearings involved the full case with all the witnesses again - I appreciate that money is not the only factor in seeking justice - that would place enormous pressure on the appeal system. It would tie up the whole appeal mechanism and could even delay justice. For that reason, as I said during the second reading debate, the Christian Democrats are inclined to support the bill as it stands. If problems arise an amending bill could be introduced in the new year, but let us give the Attorney General’s proposition a chance to work. We support the bill and do not support the amendments moved by the Opposition.
The Hon. A. G. CORBETT [10.03 p.m.]: When the Attorney General and the shadow attorney general, both of whom I believe are firmly committed in their approach, take different sides on an issue it is difficult for lay people such as me to make a decision. Both have the interests of justice at heart; that is why the decision is so difficult. Only tonight I finally made up my mind. I can honestly say that my staff and I have been weighing up this issue for weeks. At the moment a review process of committals is under way.
I am a member of the review panel, but other commitments have prevented my attendance on more than a couple of occasions. However, I have been greatly impressed by the quality of the chairmanship and the arguments and commitment of the people involved in that review process to ensure that whatever happens is best for justice in New South Wales. The Attorney General has given a commitment that a similar review process will occur in respect of this issue. Given the great difficulty I have in deciding which is the better argument, I believe I should give the Attorney General the benefit of the doubt, because there will be a review. If problems arise the Attorney General will do something about them. It has been a difficult decision but I will support the Government.
Question - That the amendments be agreed to - put.
The Committee divided.
Mr Bull Dr Pezzutti
Mr Cohen Mr Ryan
Mrs Forsythe Mrs Sham-Ho
Mr Gallacher Mr Rowland Smith
Miss Gardiner Mr Willis
Mr Hannaford Tellers,
Mr Jones Mr Jobling
Mr Kersten Mr Moppett
Mrs Arena Rev. Nile
Dr Burgmann Mr Primrose
Ms Burnswoods Mr Shaw
Dr Chesterfield-Evans Ms Tebbutt
Mr Corbett Mr Tingle
Mr Dyer Mr Vaughan
Mr Johnson Tellers,
Mr Kelly Mrs Isaksen
Mr Macdonald Mr Manson
Pairs Dr Goldsmith Mr Kaldis
Mr Lynn Mr Obeid
Mr Samios Ms Saffin
Question so resolved in the negative.
The Hon. R. S. L. JONES [10.14 p.m.], by leave: I move my amendments Nos 3 and 6 in globo:
No. 3 Page 17, schedule 1, line 31. Insert after line 31:
(4) A clerk of a Local Court must, at the request of an appellant or respondent, provide one copy of the transcript of evidence of any witness free of charge to the appellant or respondent.
No. 6 Page 36, schedule 1. Insert after line 8:
These amendments will ensure that the appellant or respondent has access to the transcript of proceedings at the Local Court level, at no cost. This applies to appeals at both the District Court and the Land and Environment Court. It is unfair and impractical for appeals to be heard on transcripts if those transcripts remain inordinately expensive. Currently, the Director of Public Prosecutions has automatic access to transcripts, whereas defendants must purchase transcripts at a cost of $7.50 per page, giving them somewhat of a disadvantage. Even when legal aid is obtained the Legal Aid Commission must bear the full cost of the transcripts, whereas the prosecution incurs no costs. The amount of $7.50 per page is not the actual cost of producing a copy of the transcript.
That amount is a fairly arbitrary figure, calculated in the hope that the moneys recovered will cover the cost of the transcription. The transcript of a trial can be given to a defendant on a computer disk for a total cost of no more than about $10. It is essential and in the interests of justice that both parties have free access to the transcript of evidence at the Local Court, given that transcripts are central to the appellant’s case and will provide the basis on which arguments about whether oral or new evidence may be submitted before the court. I imagine that the Attorney General will be happy if these amendments are agreed to. I am sure that the shadow attorney general and Leader of the Opposition will also be happy. I understand that the Leader of the Opposition will support the amendments.
The Hon. J. P. HANNAFORD (Leader of the Opposition) [10.16 p.m.]: The Opposition supports these amendments, which have budgetary implications. No doubt the Government will make a decision as to whether or not to proclaim them. I have always been of the view that the objective advocated by these amendments is the appropriate way to go. It has been a matter of trying to get the budget from Treasury to achieve that objective. Treasury has not been prepared to allocate the money. It has taken the view that there should be total cost recovery by the courts in relation to the provision of transcripts. That is why, over recent years, the cost of transcripts has increased. The cost of transcripts has imposed a significant burden on the Legal Aid Commission over the past few years.
Reverend the Hon. F. J. Nile: We should apply the user-pays principle.
The Hon. J. P. HANNAFORD: Basically, that is the principle that has been applied. That approach is wrong when it comes to the criminal justice system. Nobody gets the transcripts for nothing. Taxpayers pay for the transcripts and there is no reimbursement from the court system for that part of the administration of the Attorney General’s Department. The Office of the Director of Public Prosecutions does not reimburse the court transcription service for its costs. The only parties that pay for the transcripts are accused persons. That inappropriate approach will not ensure that people have access to justice. We should have regard to the new administrative system of the Wood royal commission. New efficiencies can be gained in dealing with transcripts, which could lead to a reduction in costs.
Over recent years attempts were made to effect control over the cost of the court transcription service. Those attempts were met with industrial difficulties. I recall seeking to move to try to achieve those efficiencies with new technologies and being faced with the threat that the courts would close down because the court transcription service would go on strike indefinitely. If we support these amendments we will send a message to the executive arm of government that this is the way to go. That message may lend support to achieving that aim. I know that the Attorney General has informed Treasury that there has to be an appropriate level of funding to ensure that all parts of the criminal justice system are treated equally. I have no doubt that, while the Attorney General will argue against this amendment, he will see the benefit of it being in his armoury of weapons for arguing with Treasury.
The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [10.20 p.m.]: We acknowledge, of course, that as the revised procedure proposed for the District Court requires a rehearing on the transcripts of proceedings taken before the Local Court, it will be necessary for the appellant to obtain a transcript of those proceedings before the magistrate. However, under the existing appeal procedures it is the current practice for the majority of appellants to obtain a transcript of the Local Court proceedings. In other words, most appeals that now go to the District Court from the Local Court involve the tendering of a transcript to the judge in the course of the appeal proceedings.
The transcript of proceedings is then used by the appellant or his or her legal representative to test the evidence given by witnesses on an earlier occasion before the Local Court. Therefore it is not considered that the revised appeal procedure will
increase the cost for appellants lodging appeals to the District Court as it is a cost that is already being incurred. Furthermore, a review of court fees is currently being undertaken by the Attorney General’s Department. The review is examining the current funding arrangements whereby the cost of running the courts is partly funded by the revenue derived from filing fees, which in the past has hindered attempts to reform filing fee structures.
Once this issue is addressed with Treasury it is envisaged that reviewed fee structures will be developed which will address the special needs of accused persons appearing in criminal proceedings. For this reason it is argued that it is both inappropriate and premature at this stage to amend the Justices Act to provide appellants and respondents with free copies of transcripts on appeal as the introduction of any such measure would simply result in less funds being made available to the Courts generally.
The Hon. Dr A. CHESTERFIELD-EVANS [10.22 p.m.]: I am very disappointed by the Attorney’s response. People appealing to a higher court will be unable to afford the transcripts necessary to develop their case. In other words, they have to have the money even to get to the starting line for justice. That is unacceptable. As I argued in relation to the previous amendment, one cannot pretend that financial considerations are irrelevant in the justice system. This is an example. This amendment will save a relatively small amount of money compared with the amount involved with the last amendment. Yet to save this small amount we would deny people transcripts which are vital to their cases.
Reverend the Hon. F. J. Nile: The Attorney General said they would be given transcripts.
The Hon. Dr A. CHESTERFIELD-EVANS: It seems that this will be dependent on a review at a later date. This situation exists right now and it is really important that people have access to justice. The amendment is crucial and should be supported.
The Hon. R. S. L. JONES [10.23 p.m]: Even if the revised fee structure resulted in lower transcript costs it would not alter the fundamental inequity of only one party, the appellant, incurring the costs of transcripts and the other party incurring no cost.
Question - That the amendments be agreed to - put.
The Committee divided.
(4) A clerk of a Local Court must, at the request of an appellant or respondent, provide one copy of the transcript of evidence of any witness free of charge to the appellant or respondent.
Mrs Arena Mr Kersten
Mr Bull Rev. Nile
Dr Chesterfield-Evans Dr Pezzutti
Mr Cohen Mr Ryan
Mr Corbett Mrs Sham-Ho
Mrs Forsythe Mr Rowland Smith
Mr Gallacher Mr Willis
Miss Gardiner Tellers,
Mr Hannaford Mr Jobling
Mr Jones Mr Moppett
Dr Burgmann Mr Shaw
Ms Burnswoods Ms Tebbutt
Mr Dyer Mr Tingle
Mr Egan Mr Vaughan
Mr Kelly Tellers,
Mr Macdonald Mrs Isaksen
Mr Primrose Mr Manson
Dr Goldsmith Mr Kaldis
Mr Lynn Mr Obeid
Mr Samios Ms Saffin
Question so resolved in the affirmative.
Amendments agreed to.
Progress reported from Committee and leave granted to sit again.
The Hon. R. D. DYER (Minister for Public Works and Services) [10.32 p.m.]: I move:
That this House do now adjourn.
VIOLENCE AND SOCIAL VALUES
Reverend the Hon. F. J. NILE [10.32 p.m.]: I refer to the increasing level of violence on our streets and in our homes, to which the Daily Telegraph referred in a front page article entitled "It’s war". I also refer to the attack on the Lakemba police station, which is without precedent in our 200-year Australian history. In some countries shooting attacks are directed at police stations. It was a miracle that the five police offices who were on duty at the time were not murdered. As honourable members know, the bullets virtually went between the police officers. It was only an accident
that the people who fired those bullets with the intention of causing as much damage as possible missed the police when they fired at random at the police station.
One officer, who was working at a computer, heard a noise and moved away from the computer. The bullet hit the computer screen - it would have hit his head if he had not moved. I am sure many honourable members share the view that violence has increased and moral values have declined in our community. A section of our youth have an urge toward evil and do not understand what is right or wrong. Recently a schoolteacher was attacked with a knife and had his nose broken by a student in the school grounds. I understand that charges were not laid. I believe that such behaviour is provoked by the music played by some heavy metal bands in our society, particularly the satanic band called Marilyn Manson. That band takes its name from Marilyn Munro and Charles Manson, the mass murderer. Each member of the group has taken the name of a mass murderer, thereby glamorising or glorifying mass murderers, and that should be condemned.
I have copies of some of the band’s lyrics, which would make most honourable members sick. The lyrics promote suicide, rape and murder, and have the recurring theme of kill God, kill your mum and dad, kill yourself. Honourable members would all accept that we have a serious problem with the high level of teenage suicides and our society does not need provocation through the lyrics of heavy metal bands, particularly those from overseas. That band will be in Australia in January and I understand that the Australian Broadcasting Corporation station 2JJJ is backing its Australian tour. More violence is being committed by even younger children and that is of concern. Prominent people within the radio and television industry have been encouraging young people to do what they like with drugs, alcohol and violent acts against humanity.
Only in the last 24 hours there have been alarming reports of increased drug use in our society, with children as young as 12 years and 13 years using heroin. It is alarming that 33 per cent of young people in our society have tried or used marijuana, whereas the statistic in Sweden is only 3 per cent. I am informed that radio station 2MMM runs a segment during its evening program by presenter John Kennedy called the "Rubber Room". During one of these segments on 29 October 2MMM had a competition called "What would you like delivered to your door?" Various responses were given.
The presenter, without encouragement from his listeners, stated that he wanted a "dismembered Mormon". I find this disgusting and totally uncalled for. The following evening he sarcastically commented, "It seems like last night we offended the Mormon community." They then conducted a raid on the Mormon Church in Sydney. They forced their way into the church seeking interviews on whether the Mormon Church favoured free sex, with the intention of getting a cheap laugh from the listeners. We should all take note of what is said in Ephesians 6:1-4:
Children, obey your parents in the Lord: for this is right.
It is time we returned to those positive values. [Time expired.]
Honour thy father and mother; which is the first commandment with promise;
That it may be well with thee, and thou mayest live long on the earth.
And, ye fathers, provoke not your children to wrath: but bring them up in the nurture and admonition of the Lord.
MOAMA POLICE NUMBERS
The Hon. M. R. KERSTEN [10.37 p.m.]: I wish to place on record some concerns from the shire of Murray. I will quote from a letter addressed to the Hon. Paul Whelan from the Murray shire, which stated:
You may be aware that extreme difficulty has been experienced in attracting Police Officers to the border town of Moama. This difficulty can largely be attributed to the housing situation in the town.
Moama is a twin town with Echuca, Victoria, with a population approaching 4,000 maintaining a constant 3% growth rate. Echuca has a population of 10,500 persons and is also growing rapidly by rural standards. Enclosed is a copy of the Murray Shire Profile . . .
Moama and Echuca are located on the Murray River and are very vibrant communities with a seasonal but pleasant climate and excellent community services and recreational facilities . . .
Whilst the area is popular with Victorians, it is not very well known to the NSW population. Therefore, when positions become available for NSW Police there is little chance that prospective applicants will identify with the area.
I have been informed that the Moama police strength has been designated as five police. At the moment I understand there are only four police stationed at Moama. Moama is situated some 80 kilometres from Deniliquin on the Murray River and is directly across the bridge from Echuca in Victoria. It is disturbing that three of the four policemen stationed at Moama are currently renting
accommodation in Echuca because of the unavailability of suitable housing in Moama. It is further my understanding that there is only one police house in Moama. I have been advised by shire councillors that it is the intention of the department to sell this existing residence. It is heritage listed and therefore should be a much sought-after property.
From conversations with police department personnel and Murray shire councillors I understand that the proceeds of this sale are to be returned to the general revenue of the Ministry of Police. I have also been advised that over the past 15 years the police department has diminished its property stocks in Moama with the disposal, by sale, of two residential vacant lots and one house. I do not hold the present Government responsible for that, because a succession of governments has not acted appropriately in that area. It is also my understanding that one police residence was remodelled into a police station. That is highly commendable, but it has added to the police housing problem.
My information also leads me to believe that the department has sold five other lots to the Department of Housing. Again, that is highly commendable but not really a lot of help to the families of policemen in Moama who cannot find accommodation in their own State and who are living a few hundred yards away, in Victoria. I have been made aware, in discussions with members of Moama Shire Council, that correspondence has been sent to Minister Whelan requesting that the proceeds of the sale, to which I previously referred, be retained by the Minister’s department for use in the development of two villa units in Moama for use by police stationed there.
It is the view of the Murray Shire Council, and indeed my personal view, that the funds derived from that sale, should it take place, ought be devoted directly to the development of two villas or police housing of some kind in Moama so that police officers can live in their own State. It is absolutely crazy that New South Wales police officers have to live in another State because their own department cannot adequately house them.
INDEPENDENT MEMBERS PARLIAMENTARY RESOURCES
The Hon. HELEN SHAM-HO [10.41 p.m.]: I wish to defend my position as an Independent member of Parliament and place on record my personal grievances. Since becoming an Independent a few months ago I have come to realise how free I am without the constraints of being in a political party. I also realise how difficult is the task of being an Independent without the resources of a party machine behind me. As an Independent I must consider each issue and each bill on its merits and formulate a personal opinion. To do this effectively I must devote an inordinate amount of time to briefings, consultations and representations so that I can be fully aware of all concerns. To me this aspect is very important and satisfying.
I consider the community to be my source of information on various issues. Members of Parliament must stay in touch with community groups to find out their concerns at the grassroots level; I always do that. I spend a lot of time consulting with the community and attending functions in an attempt to understand what matters are important to people. All of this is a challenge, which I relish and want to accept. However, I am being hamstrung in my efforts to play my proper role because of the lack of resources provided to me. I have only a full-time secretary-research assistant, serviced by two part-time staff in a shared-job position. I desperately need more staff, as do most other Independents. Since becoming an Independent I have sent numerous letters to the Government and Parliament seeking extra staff, but without success.
Whilst I am aware and fully understand that cuts in funding are being made everywhere I really believe that another staff member is absolutely essential for me to be able to fulfil my functions effectively. The fact that it was necessary for me to raise this matter tonight demonstrates how important this is to me. The strains and stresses that I and my staff are under in trying to keep up with the demands placed on us are enormous. We are unable to manage all requests and demands. I do not have enough time to fully consider opinions on important matters. It is not fair to my constituents who voted for me, not only Liberal Party members but also non-Liberal Party supporters.
By not providing me with an extra staff member the Parliament is really being inequitable to me and unfair to the people. Since becoming an Independent I have come to appreciate the essential and crucial role an Independent member of Parliament plays. It is the Independents who, not being blinded by partisanship and the demands of the bigger interest, can really help ordinary people and make sure that their voices are heard. That was demonstrated tonight by the passing of the Residential Parks Bill. The Independents also perform an important watchdog role over the Government.
No matter what we believe is the right thing to do in any given instance, the Independents provide the checks and balances so critical to ensure fairness and justice. They particularly ensure that the Government and its agencies are held to account for
what they do, and that democracy is protected. This is a very important aspect for me. I have always believed in personal integrity and the need to follow my conscience and judgment. That was the reason for my resignation from the Liberal Party. Now that I have cast aside the party cloak I can act in the way that I believe is right.
For instance, I have a great deal of respect and admiration for Kathryn Greiner. I fully considered her opinion in relation to the recent Local Government Legislation Amendment (Elections) Bill which passed through this House last night, but I felt compelled by conscience to oppose the amendments she favoured. Although I gave a lot of my time to listen to the concerns of home schooling advocates in relation to the recent disallowance regulation on home schooling, I could not in good conscience support their position. Even though I did not support them I received letters from them congratulating me on allowing them to fully put their concerns to me.
This, then, is the proper role of the Independent member, but at present I cannot do it properly, underresourced as I am. Although I acknowledge the financial constraints under which the Government and the Parliament are operating, I cannot but think that both major parties, certainly when they are in government, are not concerned about the inability of the Independents to bring their full attention to bear in debate on the bills that have been introduced. It may mean less resistance to their aims, but it really means disservice to the interests and needs of the people of New South Wales. [Time expired.]
DEATH OF THE HONOURABLE SIR ASHER JOEL, KBE, AO,
The Hon. J. R. JOHNSON [10.46 p.m.]: On the night of Monday, 9 November, there passed from this vale of tears a splendid man of many titles and many awards, Sir Asher Alexander Joel, a man who strode these hallowed halls long before and long after his election to this place. He was an institution in his own right. Born in the very heartland of Labor at Enmore, he was a versatile person. In the earlier part of his career he worked for the Labor Daily. He was press officer to the Labor Premier, the Hon. Jack Lang. In Trades Hall circles the roundsman for the Sydney Morning Herald became known as the gentleman from the Herald.
This had its embryonic stages in the ushering in of a group of journalists who were about to have their press conference with the then Labor Premier, Jack Lang. All of the newspapers were opposed to Lang on some issue that he was putting to the Parliament, except the Sydney Morning Herald. As they were ushered in by Sir Asher he said, "Mr Premier, nine journalists and a gentleman from the Herald". The gentleman from the Herald title forever stuck to the industrial roundsman of the Sydney Morning Herald who was based at the Trades Hall.
Sir Asher Joel was liaison officer to General MacArthur. In 1945 he was Director of Public Relations for the Liberal Party in Victoria. He was elected to this House as an Independent on 21 November 1957, taking his seat at the customary triennial turnover on 23 April 1958. He joined the Country Party in 1959. He left this establishment on 5 November 1978. He left his mark in many fields of endeavour, too numerous to elaborate in the short time available to me. But he will long be remembered by his many friends and acquaintances in this Parliament, and indeed, his many friends in the Australian Labor Party. And they called him friend. He was a wonderful man, true to his ancient faith till his death, and true to his friends, whom he loved and who loved him. He will be missed by those that he served in this city, this State, this nation and his friends in Israel. My wife, Pauline, and I will miss him immensely.
At the obsequies at the Great Synagogue one could not but be impressed by the attendance of the serving Governor of New South Wales; the serving Governor of South Australia, Sir Eric Neal; one former Governor; four former Premiers; numerous Ministers of this Government and former governments, both State and Federal; and members of both Houses of this Parliament. He was a long-time member of his trade union, the Australian Journalists Association, and a long-time supporter of the Eight-Hour Day Committee and its successor organisations. He was one of those people you could not but love. He had a tremendous warmth and capacity to love. He was inordinately generous to many organisations. One could not list them all. May his noble soul rest in peace.
A FORMER MEMBER OF THE LEGISLATIVE COUNCIL
GREENWICH BUSHLAND HYGROCYBE CONSERVATION
The Hon. I. COHEN [10.51 p.m.]: Five kilometres from the State Parliament is Sydney’s best kept secret. In the Upper Lane Cove Bushland Park, Greenwich, 27 species of hygrocybe - rare colourful fungi - have been documented. In Australia there are only 54 known species of hygrocybe. Over half of those are found along Gore Creek, in the unique Upper Lane Cove Bushland Park. Up to 12 species of hygrocybe may become holotypes - that is, the Upper Lane Cove Bushland Park will become their world reference point - by the time the study is complete. Holotypes will be listed in the Threatened Species Conservation Act.
Hygrocybe are extremely sensitive to pollution and encroachment. Only 75 to 100 metres upstream
from the endangered hygrocybe is a piece of bushland adjoining the park. It has never been built upon, and it is the feeding, breeding and roosting ground for birds and wildlife. A building application is before Lane Cove Council, but the owner has told the council he is prepared to sell if the Government or council will buy the land. Council approached the Department of Urban Affairs and Planning for funds. That department declined funding and, in a letter to the Greenwich Rainforest Reserve Committee dated 6 October 1998, stated:
As a result of thee site inspection it was found that the fungi community did not extend into the 35 Innes Rd property.
(1) Only one DUAP representative visited the site, on one occasion only, on 9th September, well after the fruiting season for the hygrocybe was over, and not surprisingly he could not find evidence of the hygrocybe community.
(2) No formal study has been undertaken along this tributary!
(3) Wildlife artist Julie Morris, who used to live at 37 Innes Rd, has painted hygrocybe below 35 & 37 Innes Rd.
(4) Only an extensive study of the mycelium can prove beyond all reasonable doubt that there are no hygrocybe here. This has not been done.
Professor Nicholas P. Money, Assistant Professor of Mycology at Miami University, says:
There is little doubt that encroaching on the mycelium of these fungi will have an adverse effect on the viability of the mushroom population.
When we consider the population (that may consist of thousands of genetically distinct mycelia) then the extent of the area that must be protected from disturbance becomes enormous. There are published examples of basidiomycete mycelia covering 30 acres or more.
Dr Steven L. Stephenson states:
. . . mycelium spreads over the year, usually in concentric rings. That means it is not enough to preserve only the place where you have seen fructifications the last year or the last couple of years, since the mycelium grows further and usually fruiting bodies are formed on a certain zone of this growing mycelium. And, for this spreading the fungus needs room and more trees.
The Department of Urban Affairs and Planning says:
The 35 Innes Rd property was also not pertinent to providing a buffer area for the community. In this case, the buffer area necessary for the community’s survival was considered to be that area of tree canopy needed to sustain the shade and humidity conditions for the germination and growth of the fungi.
To obtain advice, leading academics in the field from around the world have been approached. There is grave international concern for the hygrocybe. Margaret Carreiro, Associate Professor, Biology, National Science Foundation in the United States of America, states:
. . . the microclimate will almost certainly change. Plant canopies often become less continuous, allowing more sunlight and perhaps greater evapotranspiration that will alter soil moisture condition. More sunlight may mean changes in plant communities that may in turn affect below ground microbial communities, including fungi.
. . . atmospheric nitrogen (pollution) inputs to forests are increased by edges and has been linked to the demise of many mushroom species, particularly ectomycorrhizae.
Professor Roy Watling, Director of Caledonian Mycological Enterprises, said:
100 metre square quadrates are minimum necessary size for a study of woodland fungi and Mr Lange has used 2000 square plots. It is therefore obvious that 100 metres from a site of special scientific interest is potentially dangerous especially as it is well proven that Hygrocybe are sensitive to eutrophication.
Dr Gregory Mueller of the Field Museum of Natural History, Chicago, United States of America, said:
We find the number of Hygrocybe at Upper Lane Cove Bushland Park, 27 species, to be extraordinary. The existence of such a rich localized mushroom flora warrants serious considerations for protective measures. These communities are not replaceable. The fact that the Bushland Park is the holotype location for three to twelve species of fungi bestows much additional importance to the site.
Dr Jean Lodge, botanist, of the Centre for Forest Mycology Research, Forest Products Laboratory, United States Department of Agriculture, said:
As an evolutionary biologist, I hope that the unique information preserved in these Hygrocybe species and populations will not be lost to science. Imagine trying to work a jigsaw puzzle in which a quarter of the critical pieces have been thrown out.
It would be a mockery and embarrassment for our community if a scientist from overseas arrived in Sydney to view a holotype species of hygrocybe, only to find it no longer existed because a large building had displaced the bush, changing the microclimate and affecting the bushland, changing the humidity levels of the Gore Creek microenvironment essential to the hygrocybe and causing further pollution along this valuable tributary of the Gore Creek.
Motion agreed to.
House adjourned at 10.56 p.m. until Monday, 23 November 1998, at 2.30 p.m.