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Full Day Hansard Transcript (Legislative Council, 27 October 2010, Corrected Copy)

LEGISLATIVE COUNCIL

Wednesday 27 October 2010

__________

The President (The Hon. Amanda Ruth Fazio) took the chair at 11.00 a.m.

The President read the Prayers.

BUSINESS OF THE HOUSE

Formal Business Notices of Motion

Private Members' Business item No. 112 outside the Order of Precedence objected to as being taken as formal business.

LEUKAEMIA

Motion by the Hon. Helen Westwood agreed to:

BUSINESS OF THE HOUSE

Formal Business Notices of Motion

Private Members' Business item No. 171 outside the Order of Precedence objected to as being taken as formal business.

CARERS

Motion by the Hon. Kayee Griffin agreed to:

BATTLE OF CRETE

Motion by the Hon. Kayee Griffin agreed to:

TRIBUTE TO DR TONY RAYMOND, OAM

Motion by the Hon. Kayee Griffin agreed to:

SYDNEY HERITAGE FLEET

Motion by the Hon. Kayee Griffin agreed to:

MULTIPLE SCLEROSIS

Motion by the Hon. Kayee Griffin agreed to:

EARLY CHILDHOOD NURSES

Motion by the Hon. Kayee Griffin agreed to:

SUDDEN INFANT DEATH SYNDROME

Motion by the Hon. Kayee Griffin agreed to:

1. That this House notes that:

COUNCIL OF SOCIAL SERVICE OF NEW SOUTH WALES

Motion by the Hon. Helen Westwood agreed to:

MEALS ON WHEELS

Motion by the Hon. Kayee Griffin agreed to:

SUICIDE PREVENTION

Motion by the Hon. Kayee Griffin agreed to:

DEAF COMMUNITY

Motion by the Hon. Helen Westwood agreed to:

BATTLE OF BRITAIN

Motion by the Hon. Kayee Griffin agreed to:

AUDITOR-GENERAL'S REPORT

The Clerk announced the receipt, pursuant to the Public Finance and Audit Act 1983, of the Financial Audits Report of the Auditor-General, Volume Three 2010, dated October 2010, received and authorised to be printed this day.

PETITIONS

Coralville Development Proposal

Petition opposing the purchase and reclaiming of "The Big Swamp" at Coralville and requesting a full investigation, including community consultation and social, environmental and economic studies, received from the Hon. Duncan Gay.

Euthanasia

Petitions praying that the House will oppose any attempts to legalise or decriminalise the practice of euthanasia to ensure that the quality of life of the elderly, handicapped or terminally ill is not subject to these unjust or unethical procedures, received from Reverend the Hon. Fred Nile and Reverend the Hon. Dr Gordon Moyes.

Identity Concealment

Petition opposing any face covering that conceals the identity of a person and prevents Australia from being an open society, and requesting that the House support the private member's bill of Reverend the Hon. Fred Nile that prohibits within all public areas the wearing of any article of clothing that conceals a person's identity, received from Reverend the Hon. Fred Nile.

Unborn Child Protection

Petition requesting that the House uphold the sanctity of human life, defend the fundamental right of children to be born and reject all attempts to initiate legislation that emulates the Victorian Abortion Law Reform Act 2008, and encourage ways and means of promoting to the people of New South Wales that every baby deserves to be protected and nurtured from conception, received from Reverend the Hon. Fred Nile.

Religious Education and School Ethics Classes

Petition opposing the newly proposed secular humanist ethics course in public schools and calling on the Government to support the cancellation of the ethics course and express its support for scripture classes, received from Reverend the Hon. Fred Nile.

BUSINESS OF THE HOUSE

Postponement of Business

Government Business Notice of Motion No. 1 and Government Business Orders of the Day Nos 1 and 2 postponed on motion by the Hon. Tony Kelly.

PROTECTED DISCLOSURES AMENDMENT (PUBLIC INTEREST DISCLOSURES) BILL 2010

Second Reading

The Hon. PENNY SHARPE (Parliamentary Secretary) [11.14 a.m.], on behalf of the Hon. John Hatzistergos: I move:

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

Leave granted.

The Hon. MATTHEW MASON-COX [11.14 a.m.]: I lead for the Opposition with respect to the Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010. The object of the bill is to amend the Protected Disclosures Act, the principal Act, to reflect the recommendations in the report of the parliamentary joint Committee on the Independent Commission Against Corruption entitled "Protection of public sector whistleblower employees" published in November 2009. The New South Wales Coalition introduced the Protected Disclosures Act in 1994. The primary intention of the Act is to provide protection for public officials who make disclosures concerning corrupt conduct, maladministration or waste of public money in the public sector. A requirement of the Act is that a parliamentary committee conducts a review of the Act every two years. There have been three legislative reviews in 1996, 2000 and 2006, and a review from a referral by Parliament.

In June 2008 the Leader of the Opposition, Barry O'Farrell, introduced a private member's bill entitled "Protected Disclosures Amendment (Supporting Whistleblowers) Bill 2010, which sought to implement 17 recommendations from the 2006 report of the Committee on the Independent Commission Against Corruption. The bill was discharged on 6 May 2009. This present bill amends the principal Act in the following areas. It provides for contractors to public authorities to be covered by protections related to protected disclosures. It provides that a disclosure is protected if the person making the disclosure honestly believes that the disclosure shows or tends to show corrupt conduct. It increases penalties relating to reprisals made against a person for making a protected disclosure by increasing the penalty for taking unlawful reprisal action from $5,500 or 12 months imprisonment or both to $11,000 or two years imprisonment or both—which is very welcome. The bill allows for whistleblowers to seek compensation should reprisal action be taken against them, and it enables also the Supreme Court to grant injunctions restraining a person from engaging in reprisal action.

The bill establishes also the Public Interest Steering Committee chaired by the Ombudsman. This will provide advice to the Minister on the operation of and recommendations for reform of the principal Act and on oversight and special reports of the Ombudsman. The bill confers functions on the Ombudsman in relation to the operation of the principal Act, including proposing public awareness about protected disclosures and assisting agencies with compliance. The bill requires public authorities to have a protected disclosures policy and to prepare annual reports about their obligations under the principal Act for tabling in Parliament. It also repeals a provision that removes protection for disclosures considered to be frivolous or vexatious. It amends an existing provision that protects disclosures when they are misdirected to the wrong public authority. This amendment extends the protection to cases where the misdirected disclosure is made in the honest belief that the investigating authority was the appropriate body—this particularly has implications for cases like the sad one concerning Gillian Sneddon.

The bill provides that a public official who takes detrimental action in reprisal against a person who made a protected disclosure is guilty of misconduct and will be subject to disciplinary action. The bill removes the requirement for confidentiality where a public official has voluntarily and publicly identified themselves as having made a protected disclosure and requires an investigating authority that has evidence of detrimental action taken against a person for making a protected disclosure to refer that information to the Office of the Director of Public Prosecutions. The bill requires also consultation with the steering committee on any proposed regulation to be made under the principal Act. The bill also provides for future reviews of the principal Act to occur only after five years, not biennially as is currently the case.

This bill is certainly overdue. It matches many of the recommendations of the 2008 private member's bill of the Leader of the Opposition and has adopted additional provisions from the 2009 report by the Committee on the Independent Commission Against Corruption. This legislation follows three legislative reviews of the Act, some recommendations of which have been repeatedly made and ignored by the Government. The bill should be seen in the light of the past 16 years of inaction by the Government in regard to this very important public accountability matter. It is through whistleblowers' courage that many of the failings by the Government have been brought to light. It is very important to provide whistleblowers with more protection.

Certainly the Opposition welcomes many of the increased protections outlined in the bill. However, the reality is that this bill has come far too late to assist many whistleblowers who have been victimised under the yoke of this Government over the past 16 years. One only has to call to mind the experience of Mark Aarons to appreciate the inadequacies in the current legislation. His experiences confirm a general lack of transparency and accountability by the Government. A police investigation occurred only because a formal approach was made by the Leader of the Opposition to the then Commissioner of Police.

I also note the very sad case of Gillian Sneddon whose experiences also highlight the problems that have existed for a considerable period in relation to whistleblower legislation—problems that the Government has failed to rectify. Members will recall that Gillian Sneddon assisted police to put her former boss and the former member for Swansea, Milton Orkopoulos, in jail for child sex offences. However, in the end result, the New South Wales Deputy Ombudsman, Chris Wheeler, confirmed what Ms Sneddon already knew—that there was nowhere she could turn to obtain help about her treatment as a whistleblower under the current New South Wales Government. I have referred members to a letter from the Deputy Ombudsman which recognised the serious concerns Gillian Sneddon held in relation to the circumstances surrounding her case. The letter stated:

That in itself is a tragedy. Ms Sneddon certainly paid a very high price for her involvement. The reality is that no government agency, including the Ombudsman, could investigate how Ms Sneddon came to be locked out of Milton Orkopoulos's Swansea office at his request while he was being investigated by police because Ms Sneddon did not report directly to the Clerk of the Legislative Assembly, Russell Grove, as required under the Protected Disclosures Act. At that time the requirements of the Act meant that the New South Wales Police Force and the Independent Commission Against Corruption were unable to investigate any detrimental action taken against Ms Sneddon between October 2005, when she first raised child sex allegations with Milton Orkopoulos, and October 2006 when she was locked out of his office, a month before he was charged.

Frankly, the whole circumstances surrounding Ms Sneddon's case are a scandal. The purpose of the legislation is to deal with the circumstance of an incorrect public authority being notified. Perhaps the Parliamentary Secretary will elucidate during her reply. As I understand the bill, after it is passed, notification to the incorrect public authority will no longer be a basis upon which to reject protection of whistleblowers. I think that is a very good step forward. On 21 November 2009 Gillian Sneddon summed up her situation when she said:

At what point is someone going to take responsibility for what's happened to me?

It is important to reflect upon her question. As I understand it, while the bill will rectify a procedural problem for future whistleblowers, sadly that will not help Gillian Sneddon, who continues to be a casualty of the Government's cavalier treatment of whistleblowers.

When the bill was introduced, the member for Riverstone, the Hon. John Aquilina, stated that the bill "implements all of the major recommendations" in the report of the Committee on the Independent Commission Against Corruption. However, it must be noted that not all of the 32 recommendations in the report are legislative in nature; hence it is impossible to tell whether the Government has completely taken on board the recommendations made by the report. Furthermore, the handling of Tim Horan's revelations concerning the disgraced former member of the Legislative Assembly, Karyn Paluzzano, shows that the New South Wales Government has been less than willing to support the objectives of the Protected Disclosures Act, certainly when those interests are contrary to the interests of the Government. When this bill was introduced in the other place, recommendation 8 of the committee's report was not included. Recommendation 8 states:

Subsequently the Government accepted the Opposition's amendment and corrected that oversight. In that regard, I acknowledge the efforts of the member for Davidson, Mr Jonathan O'Dea. It should be noted that the Government's response in relation to this important issue has been slow and tortured over the past 16 years. The grim reality is that the Government has been brought kicking and screaming to the table to finally improve protection for whistleblowers in the shadow of the 2011 State election. Sadly that provides no comfort for whistleblowers such as Gillian Sneddon, who has been appallingly treated by this Government. However, it will improve protection for whistleblowers in the future and that, in turn, will enhance the accountability and transparency of government. Accordingly, I commend the bill to the House.

The Hon. CHRISTINE ROBERTSON [11.26 a.m.]: I support the Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010. Members now will be aware that the bill implements all of the major recommendations of the parliamentary Committee on the Independent Commission Against Corruption in its report, "Protection of public sector whistleblower employees". The Government is pleased to introduce this bill to support the recommendations of the report. On 26 June 2008, both Houses of Parliament referred an inquiry to the Committee on the Independent Commission Against Corruption to report on protected disclosure laws and procedures. The terms of reference for the inquiry were to "report on the effectiveness of current laws, practices and procedures in protecting whistleblower employees who make allegations against government officials and members of Parliament."

The legislation is all about protected disclosure laws and procedures. A lot of the things that have happened since I have been a member of Parliament have related to a lack of procedure and process in delivering on a protected disclosure. Every public servant I know and with whom I worked in my past life knew what the process was for protected disclosures. The process protected the person who needed to let people know what was going on in relation to some issue. In some cases, particularly in my previous line of work, very sensitive clinical issues were involved.

There could have been a debate on the clinical outcomes of a clinical decision that was inappropriate, but those who worked in the environment, including grassroots clinical practitioners, knew the process for invoking protected disclosure procedures. Since the clinical governance process has become so powerful in Health specifically, people really know the process. The protected disclosure does not involve ringing up a local politician who might score some political points by taking the story to a newspaper. That can happen—later on perhaps, after the process has been put in place and the people have placed themselves within the protected disclosure process. I recognise that this Government has protected those who have gone through that process in that amazing quasi-political way, but there is a specific process and it should be utilised. The committee received 64 submissions and took evidence from 34 witnesses over four days of hearings. Following that, the committee released its report on 26 November 2009.

It is important to note that all the recommendations in the committee's report were adopted unanimously by Government and non-Government members of the Independent Commission Against Corruption committee. It is also important to note that the recommendations were made by the committee after expressly considering further reforms—I have just realised that I should have let Reverend the Hon. Fred Nile speak first as he is a member of the Independent Commission Against Corruption committee—for example, reforms suggested by the Commonwealth House of Representatives Standing Committee on Legal and Constitutional Affairs and by the national research project led by researchers at Griffith University, the "Whistling While They Work" project. After carefully reviewing the situation in New South Wales, the Independent Commission Against Corruption committee chose not to recommend that all possible further reforms be implemented in New South Wales at this time. Instead, the committee noted that there was not enough evidence available to fully consider some of these suggestions with sufficient rigour at this time.

The committee also recognised the complexities involved in regulating this area of public policy. In light of this, the Independent Commission Against Corruption committee's key recommendation was that a new oversight system be established to gather evidence on the operation of the Act before considering whether any further reforms should be made. The committee considered that a long-term view should be taken on the future of the protected disclosures scheme. This means establishing mechanisms to assist with ongoing evaluation of the scheme and to enable the systematic collection of information over the long term. The bill achieves this; it implements the committee's main recommendation that an oversight system be established comprising the Ombudsman and the Public Interest Disclosures Steering Committee.

The bill puts beyond doubt that parliamentary staff who make disclosures about wrongdoing are eligible for protection—a position that is unclear in the current legislation. The bill also provides for injunctions to be sought to prevent or stop reprisal action. An investigating authority, or any other public authority with the approval of the Attorney General, may seek an injunction on behalf of a whistleblower to prevent or stop reprisal action. In making this recommendation, the Independent Commission Against Corruption committee referred to research that indicated that fear of reprisal is one of the main factors that can deter public officials from making disclosures about wrongdoing in the public sector. Enabling injunctions to be sought to prevent reprisal action may encourage whistleblowers to make disclosures in the public interest. The Government supports this approach. I repeat: the whole process is about the public interest, not some quasi-political aims from one side or another.

The Government recognises that there may be difficulties addressing reprisal action once it has occurred—for example, the stress and anxiety a whistleblower is likely to experience if their employment were to be terminated in reprisal for making a protected disclosure. In light of this, the Government considers it is important to support measures that may prevent reprisal action from occurring in the first place. By implementing all the major recommendations of the Independent Commission Against Corruption committee, the bill maintains the effectiveness of the protected disclosures regime now and ensures that evidence-based consideration will be given in the future to assess whether further reforms are necessary. The Government thanks the committee for its contribution to this important area of public policy. I commend the bill to the House.

Reverend the Hon. FRED NILE [11.33 a.m.]: On behalf of the Christian Democratic Party I am pleased to speak in support of the Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010. I was pleased to take part in the inquiry of the joint parliamentary Committee on the Independent Commission Against Corruption into the reference made by both Houses of Parliament to investigate the effectiveness of the Protected Disclosures Act 1994 and what changes, if any, should be made to it. The committee held hearings on four days and heard from many witnesses. However, as a previous speaker said, there was controversy in the committee about how to deal with Ms Gillian Sneddon as an individual and whether she should give evidence to the committee. The minority on the committee supported a motion that she should be invited to give evidence, but the majority on the committee—all the Government members—voted against the motion.

It is a pity that Ms Sneddon was not allowed to share her concerns, mainly to make the legislation more effective in clarifying the Act and ensuring that parliamentary and electorate office staff are protected. There was a grey area and some uncertainty. As we know, parliamentary and electorate office staff are in a special category as they are basically employed by the Clerks of the Parliament—the Clerks are their employer. Parliamentary and electorate office staff are not considered the same as staff working in other public service departments. So there was some uncertainty as to whether parliamentary and electorate office staff had the protections available under the Act. I am pleased that that situation has now been clarified, and that those staff know that if they wish to make a disclosure in the future they will be protected.

In conducting its hearings, it was unusual for the parliamentary Independent Commission Against Corruption committee to invite the Clerk of the Legislative Assembly to give evidence, which he did willingly. That was helpful to the inquiry. It is probably the first time the Clerk of the Legislative Assembly has been required to appear before a joint committee, but his evidence was valuable. Sometimes it is said that there's an elephant in the room. Gillian Sneddon was the elephant in the room. As I said, it would have been better if she had had the opportunity to share her concerns and suggestions, because I understand that she is still suffering a great deal of frustration at not being given that opportunity.

The report prepared by the Independent Commission Against Corruption committee, which was finally released on 26 November 2009, contained 31 recommendations for legislative and administrative reform. I am pleased that the Government, in this bill, has taken up all the committee's substantive recommendations that could be fixed with legislation. Other recommendations were more administrative, and they have also been adopted by the Government. So all the recommendations have been adopted and put in place. One important recommendation was that a whistleblower be given the right to claim compensation for unlawful reprisal action, and that a more rigorous oversight mechanism through the Ombudsman and the existing Protected Disclosures Steering Committee be set up.

As we examined the Act, we found a grey area in terms of who had responsibility for the Protected Disclosures Act 1994. When the Act was originally adopted by the Parliament it probably should have been made clear who had the monitoring role in that situation. The bill now makes it absolutely clear that there will be a rigorous oversight mechanism through the Ombudsman and the existing Protected Disclosures Steering Committee. The new oversight arrangements will allow more evidence to be collected on the operation of the Act before considering the possibility of more extensive reforms, and it proposes a further review of the Act in five years. While we were conducting the inquiry one limitation was collating background figures as to how many people had made disclosures, what had happened to them and which departments they had come from. No-one was actually collating that material. That will now happen. Obviously it will lead to greater efficiency in implementing the Protected Disclosures Act 1994 and will benefit all employees in the public sector, including those employed in the Parliament.

So I am pleased to support the bill. As I said, it will confer the oversight functions—including monitoring, auditing, education and reporting—on the Office of the NSW Ombudsman. That will put more pressure on the Office of the NSW Ombudsman, which is becoming a big empire, so to speak, as a number of functions have been added to the office this year.

The Ombudsman's office needs to be carefully monitored to ensure it has an adequate budget and staff to carry out all these extra responsibilities. The parliamentary committee will be required to review the Act and the new oversight arrangements after five years. Protection will be extended to independent contractors of public authorities providing that a public official will be eligible for protection so long as the disclosure is made with an honest belief on reasonable grounds that information shows or tends to show wrongdoing, rather than the current requirement that disclosure must show or tend to show wrongdoing.

Finally, the legislation will provide new remedies for whistleblowers, including enabling whistleblowers to seek civil damages compensation for any reprisal action taken. I am pleased to support the bill. It is frustrating when nothing happens to a report from a committee that has put in a lot of work. However, in this case I thank the Government for responding promptly and for accepting all the committee's recommendations because the members who served on that committee feel they have achieved something worthwhile.

Dr JOHN KAYE [11.40 a.m.]: On behalf of the Greens I join other members of the House in enthusiastically supporting the Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 that puts into effect the substantive recommendations in the report of the parliamentary Committee on the Independent Commission Against Corruption, entitled "Protection of public sector whistleblower employees". The legislation acknowledges the importance that whistleblowers play in exposing corrupt or incompetent behaviour by public officials. There is a long and honourable tradition of whistleblowing in Australia and around the world, from the brave engineers who blew the whistle on the inappropriate design of the space shuttle that led to the tragic death of seven astronauts through to police in New South Wales, Queensland and Victoria who had the courage to identify that their colleagues or superiors had been behaving in an adverse or corrupt fashion.

Reverend the Hon. Dr Gordon Moyes: Westgate Bridge.

Dr JOHN KAYE: Yes. I have to declare a connection in relation to that, to which I will refer later. Whether it is New South Wales, Australia or globally, whistleblowers play an important role in rectifying corruption and improving public administration. Think for a minute what life would be like if whistleblowers did not have protection that allows them to exercise their professional conscience and where our society would be, even with the current laws here and the still better laws in other jurisdictions. We must be awed and humbled by the courage of whistleblowers, who stand up to those around them—their managers and the organisations they work for—in the public interest. Andrew Wilkie, a famous whistleblower, has put to the Federal Parliament a number of key changes to Federal whistleblower legislation, including shield laws for journalists. Mr Wilkie argues both from the point of view of public interest and from the point of view of protecting the right of public servants and others to free speech—to speak out when they see wrongdoing. There can be no more fundamental right than the right to exercise one's conscience, which is certainly what whistleblower legislation enables.

This legislation is positive. It creates a better environment for public servants who wish to speak out against malfeasance or incompetence in their department. Perhaps the most important provision is that which changes the eligibility criteria for protection to being that the individual needs to hold "an honest belief on reasonable grounds" rather than the current requirement that the disclosure "must show or tend to show wrongdoing". By lowering the bar, as it were, regarding the sense of certainty that a whistleblower needs to demonstrate, we will inevitably create an environment in which more public servants feel they have the capacity to speak out. That can only be a good thing for New South Wales, and for Australia.

Other provisions include improved oversight functions, which are positive. Oversight is important to make sure that laws are working correctly and that there is appropriate auditing education and reporting. The bill clarifies that parliamentary electorate office staff are protected under the Act. We have previously debated in this Chamber the fact that those staff are employed under a different set of laws from the average public servant. There is no doubt that they have the opportunity to witness malfeasance and incompetence, and should have the opportunity to exercise their professional consciences in the same way that every other public sector employee can. The bill also seeks new remedies for whistleblowers—which is appropriate—including civil damages for compensation.

The Greens note that the bill immediately doubles the penalty for unlawful reprisal actions. The Legislation Review Committee raised concerns about the immediate doubling of the penalty, noting that there was an absence of evidence that the current penalty had been ineffective. I invite the Hon. Penny Sharpe, the Parliamentary Secretary, in responding to the debate to outline why the Government believes it is necessary to double the maximum penalty. The Greens recognise the seriousness of reprisal action taken against individuals who make disclosures that are deemed to be in the public interest, and we agree that it should attract tough penalties. However, like the Legislation Review Committee, we would like to see the evidence that increased penalties will achieve a desirable outcome.

Earlier I referred to Andrew Wilkie and to his excellent work in Canberra on whistleblower legislation, for which he has drawn partly on his own experience and that of other whistleblowers—I presume that if one is a high-profile whistleblower like Mr Wilkie one comes in contact with many whistleblowers, whose experience he has aggregated in legislation. One particular and important area that Mr Wilkie addresses is the shield laws for journalists. Such laws are very important as they would stop journalists being compelled to reveal their sources when doing so would put somebody at risk of reprisal. I note that the Hon. Trevor Khan expresses perhaps a degree of cynicism with respect to my comments. There is no question that providing journalists with appropriate shield laws to protect their sources—so long as there are appropriate checks and balances on those protections—creates a safer environment in which journalists can disclose wrongdoing and serious intent.

The other major advance in the area of whistleblower protection that has not been picked up in this legislation—and which the Greens urge the Government to examine closely—is the work of the Bligh Government in Queensland. It has made substantial advances in relation to the time frame for action when a whistleblower reports to the appropriate officer that something has gone wrong—perhaps there is incompetence, corruption or malfeasance. In New South Wales, and formerly in Queensland, if nothing happens the whistleblower has to wait six months before taking further action. The September 2010 amendments to the Queensland Public Interest Disclosures Act changed that situation. If the reasonable person who made the disclosure believes the agency has completed its inquiries and has decided not to act, he or she can go immediately to the media on the grounds of deemed refusal to act. There is no need to wait for six months; the waiting time is reduced to days, hours or even minutes after making the original disclosure if the circumstances are sufficiently urgent. The problem with the six-month waiting period is it creates an opportunity for the relevant inquiry to be stifled—it sits there for six months while evidence is buried and the issue goes off the boil, while damage continues to be done.

The Queensland legislation gives public servants the opportunity to make a disclosure and have an urgent issue rectified immediately by going to the media. Exposure in the media is an important way of making sure that public officials and politicians behave appropriately. While there have been many inappropriate exposures in the media, it is also true that, historically, Australian politics has benefited greatly from the media—groups of journalists—unstintingly failing to inquire and to expose wrongdoing. Assisting that inquiry and exposure through protected disclosure laws that allow public servants who are not achieving a remedy to go to the media is an appropriate step, and something we encourage the Government to pursue. That being said, the Greens support the legislation as it stands. We congratulate the Government on taking the next step, which we hope will create more opportunities for whistleblowers to exercise their professional conscience and, in so doing, improve the standard of public administration in New South Wales.

The Hon. MARIE FICARRA [11.51 a.m.]: I support the object of the Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 to amend the Protected Disclosures Act 1994, the principal Act, to implement recommendations of the report by the joint Committee on the Independent Commission Against Corruption, entitled "Protection of public sector whistleblower employees", published in November 2009. I note concerns that some whistleblowers who sought to give oral evidence to the inquiry were denied such right by Labor members. The bill amends the principal Act as follows: to provide that persons engaged under contract to provide services to or on behalf of a public authority are public officials for the purposes of the principal Act; and to provide that a disclosure is protected if the person making the disclosure honestly believes, on reasonable grounds, that the disclosure shows or tends to show that a public authority or another public official has engaged, is engaged or proposes to engage in corrupt conduct, maladministration, serious and substantial waste of public money or a contravention of government information laws.

For many years I have held grave concerns for whistleblowers in this State and how their complaints are being dealt with by New South Wales departments and agencies. I have raised in this place legitimate allegations and concerns about corrupt conduct and maladministration by officers from an array of departments and agencies across the State, and indeed from many councillors and officers of local government authorities. I have put on record the sad plight of many officers of the New South Wales WorkCover Authority, where systematic bullying and harassment by senior management has been rife—so much so that many officers have suffered severe psychological injury and, alarmingly, even contemplated suicide. I am delighted that, after years of raising these issues, together with my colleagues the Hon. Greg Pearce, the Hon. Charlie Lynn, the Hon. Matthew Mason-Cox and the Hon. David Clarke, an independent investigation has been announced by the Government into WorkCover New South Wales. In a question on notice No. 4595, I have asked the Minister for Finance, the Hon. Michael Daley, whether past protected disclosures submitted by WorkCover officers, both present and former, will be reviewed by the independent investigation, and I—and many others—await his response.

What concerns me is that a lack of resources stops authorities such as the Independent Commission Against Corruption and the NSW Ombudsman investigating all complaints of corrupt conduct and maladministration, be they protected disclosures or general complaints. On 11 August 2010 the NSW Ombudsman, Mr Bruce Barbour, wrote to me advising that:

Due to limited resources, we are unable to investigate each of the approximately 8,000 matters we receive each year.

In further correspondence, Mr Barbour advised:

· Identify systemic maladministration or wrong conduct for which there is no satisfactory alternative means of redress.

· If investigated, are likely to lead to recommendations resulting in practical and measurable changes.

I am also aware that the Independent Commission Against Corruption faces similar problems, and that less than 2 per cent of complaints are referred for investigation. I have sympathy for the Independent Commission Against Corruption commissioner, the NSW Ombudsman and their staff, who operate with such tight resources. Either the Government has to allocate more funding to these authorities or there must be reform to streamline investigative processes. I have studied models such as Hong Kong's Independent Commission Against Corruption, and I am impressed with how it has proactively introduced strategies and mechanisms for preventing, detecting and acting on corruption by public officials. I am also impressed with the number of complaints the commission investigates. I have put many questions on notice to the Premier and Ministers regarding the effectiveness of departmental investigation units in investigating allegations of corruption and maladministration, and the law governing their respective portfolios.

The questions were prompted mainly by the failure of agencies to investigate community concerns about various matters. Nearly every government department has an internal misconduct investigation unit or officers, and I believe this is an unnecessary duplication. Now we are seeing the appointment of internal ombudsmen in councils—some of whom are paid in excess of $100,000 a year and whose offices cost ratepayers more than $300,000 a year. I believe the Government should properly investigate and analyse merging those departmental and local government internal misconduct investigation units with the Independent Commission Against Corruption and the NSW Ombudsman, or combine authorities to ensure a centralised, efficient and effective investigatory body with proper resourcing.

Sadly, protected disclosure and the spirit of the legislation have been too easily manipulated by government departments, local governments and decision-makers for far too long. Recently I had occasion to submit a protected disclosure about the mayor and general manager of a council regarding alleged breaches of the New South Wales division of local government code of conduct for councillors and staff. Both men attacked and sought to harass me for raising in this place the allegations of whistleblower council staff that were too intimidated and in fear of retribution to take their complaints to the general manager of that council or the council's internal ombudsman. The internal ombudsman of the council, who reports directly to the general manager, ruled that my protected disclosure was not a protected disclosure. The NSW Ombudsman has confirmed that:

The agency that first receives a protected disclosure is required to make an initial assessment to determine whether or not the disclosure should be treated as a protected disclosure. Once this assessment has been made, the agency may go on to investigate the matters raised in the disclosure (either by using its own staff or engaging a consultant), or refer it to a more appropriate investigating authority or public official or public authority as provided in Part 4 of the Protected Disclosures Act.

The protection of whistleblowers is absolutely crucial and we need legislation to effect it. In 1994 the Coalition Government introduced the Protected Disclosures Act to provide protection for public officials who make disclosures concerning corrupt conduct, maladministration or waste of money in the public sector. The general description of a protected disclosure—I note that the bill will change the title of the principal Act to the "Public Interest Disclosures Act"—is provided by Near and Miceli in their article of 1985 entitled "Organisational Dissidence: The Case of Whistle-Blowing". They define it as a disclosure by organisation members, former or current, of illegal, immoral or illegitimate practices under the control of their employers to persons or organisations that may be able to effect action.

What concerns me greatly in this matter is how council staff and persons with inherent conflicts of interest can influence decision-making and the investigation of protected disclosures. The NSW Ombudsman, devoid of resources to investigate all matters, has also advised me that protected disclosures must tend to show serious maladministration and thus not all disclosures about maladministration will come within the terms of the Act. I can therefore understand why public servants and public officials are intimidated into not submitting protected disclosures when they can so easily be dismissed, often by people with inherent conflicts of interest and inconsistent approaches to what constitutes serious maladministration. In my mind, and in the minds of thousands of others, any maladministration should be reported and those that have the courage to do so should receive full protection.

Pursuant to sessional orders business interrupted at 12 noon for questions.

QUESTIONS WITHOUT NOTICE
__________

COURT OF CRIMINAL APPEAL RETRIAL APPLICATION

The Hon. MICHAEL GALLACHER: I direct my question to the Attorney General. Will he outline to the House the reasons he used his discretionary powers to reject an application by the families of three murdered Bowraville children who are seeking to have the Attorney General apply to the Court of Criminal Appeal for a retrial under section 100 of the Crimes (Appeal and Review) Act 2001? Given that in the eight months the Attorney General had been considering the application neither he nor his department spoke to the families, witnesses or even the police officer who was investigating the matter, how was this important determination made without consultation with the families of the children?

The Hon. JOHN HATZISTERGOS: I can confirm that I have issued a letter to the lawyers Allens Arthur Robinson, who act for the family and friends of the deceased, which confirms that on the basis of material that I have reviewed I am unable to apply to the Court of Criminal Appeal for the retrial of Mr Hart. While these deaths have been a terrible tragedy and I too am concerned that the person responsible for the deaths has not been brought to justice, decisions of this type need to be made objectively and on the basis of the available evidence. The Crown Advocate, the Director of Public Prosecutions and the Solicitor General have all had cause to consider this matter and are of the view that an application bears no reasonable prospect of success. Having reviewed the matter at some length and the evidence that has been tendered in a previous set of proceedings, I am of the view that in all the circumstances it would be inappropriate for me to determine otherwise.

The honourable member should acquaint himself with the provisions of the Crimes (Appeal and Review) Act, which deals with the double jeopardy situation and the requirements that are necessary in order to be able to bring an application before the Court of Criminal Appeal. Those conditions are set out in the Act. They do not amount to a capacity for me to just commence proceedings in the ordinary way without reference to fresh and compelling evidence.

STATE ACCOUNTS DATA

The Hon. LUKE FOLEY: I address my question to the Treasurer. Will he update the House on the latest State accounts data?

The Hon. ERIC ROOZENDAAL: I thank the honourable member for his question and his interest in this matter. Today in the other place, the Report on State Finances 2009-10 was tabled. This report has more good news. There was a strong recovery in the New South Wales budget position for 2009-10—a $2 billion turnaround in the New South Wales budget. That is a remarkable achievement for our State and another vote of confidence in the $400 billion New South Wales economy. That $2 billion turnaround in the budget comes at the tail end of the global financial crisis. Our State budget is strong and so is our solid gold, triple-A credit rating.

This is a strong result that again highlights the sustained recovery of the New South Wales economy from the global financial crisis, especially the strong recovery of the New South Wales housing sector. The New South Wales budget surplus for 2009-10 is $994 million, which is $1.984 billion higher than the original budget estimate released on 16 June 2009. At that time the forecast was for a $990 million deficit for 2009-10. We have seen stronger than expected economic activity in the aftermath of the global financial crisis. This report also shows, however, the volatility of our revenues, such as stamp duties and GST grants from the Commonwealth. Total State revenue was $3.375 billion higher than the original budget estimate. This is largely due to higher property transfer duties, at around $1 billion above budget. This reflects an earlier than expected recovery in the residential property market.

We also saw above-budget funding from the Commonwealth for vital services—$504 million above budget for Commonwealth national agreements and national partnership agreements. That is funding for new programs such as the Better TAFE Facilities program and the Training Infrastructure Investment for Tomorrow and Australian Technical Colleges programs. The budget papers clearly show that much of our revenue comes from the Commonwealth Government. That is how our system of government works. For 2010-11, 45.3 per cent of total revenue for New South Wales comes from the Commonwealth, or around $26.1 billion. However, the State accounts also show added investment in vital infrastructure projects. This includes an extra $350 million in additional funding for the south-west rail link. Work on this project is happening right now to improve Sydney's public transport infrastructure network.

I can advise the House that the general government sector net debt is 2.2 per cent of gross State product. Of course, that is a far cry from the level of debt the Coalition left the taxpayers of New South Wales—a net debt level of around 7.5 per cent of nominal gross State product—in 1995. This is yet further evidence of the green shoots of recovery in the New South Wales economy and the strength as we move forward out of the global financial crisis. Members who wish to view the full report can do so on the Treasury website.

DOYLES CREEK TRAINING MINE

The Hon. DUNCAN GAY: My question is directed to the Minister for Planning. Does the Minister recall that in his answer to my question about the Doyles Creek mine probity review during the last sitting, he said:

There has been an independent report and we have said we will implement all its recommendations. I will have a look at that report and take advice from the department.

Given it has been more than a month, has the Minister looked at the report and has he made any decision as to whether he will reject this mining licence? Is the Minister also aware that according to a recent Goldman Sachs report into NuCoal Resources, the company now has a target potential of 500 million to 600 million tonnes? Given that this was originally proposed as a training mine and given the previous recommendation from the Department of Primary Industries to reject the training mine proposal, what action will the Minister take?

The Hon. TONY KELLY: I thank the honourable member for his question. I can advise that as yet the department has not given me any advice or a report on that matter. I will seek further information.

SCOTTISH HOSPITAL DEVELOPMENT

Mr DAVID SHOEBRIDGE: My question is directed to the Minister for Planning. I refer to the Scottish Hospital development in Paddington that the Minister declared to be State significant under part 3A of the Environmental Planning and Assessment Act by reference to clause 6 of the 2005 Major Development State Environmental Planning Policy [SEPP]. The developer has now provided a quantity surveyor's certificate certifying in accordance with current Department of Planning guidelines that the capital investment value of the project is $93.8 million, and clearly under the $100 million threshold for State significance under the Act and SEPP. What steps will the Minister take to return the consent authority for this development to the local council, or at least the relevant joint regional planning panel?

The Hon. TONY KELLY: I thank the member for his question. Obviously, I am not aware whether the matters he raised are factual. I will take advice on the matter and see whether they are.

REVIEW OF CRIMINAL LAW ON DEATH OF UNBORN CHILDREN

The Hon. KAYEE GRIFFIN: I address my question to the Attorney General. What is the latest information on the review by Michael Campbell, QC, of laws surrounding criminal incidents involving the death of an unborn child?

The Hon. JOHN HATZISTERGOS: Losing a child during pregnancy is a devastating experience. There are not just feelings of sadness and distress but also an ongoing sense of loss that never goes away. We can only begin to imagine how much more painful those feelings of sadness and loss are when an expecting parent loses an unborn child due to the criminal actions of another person.

Members would be aware of the tragic case of Brodie Donegan and Nick Ball. Brodie was eight months pregnant when, on Christmas Day last year, she was allegedly struck by a motorist under the influence of drugs. Her baby, whom she and Nick had named Zoe, was stillborn following the accident. I met with Brodie and Nick soon after the case came to public attention. Understandably, they were distraught and they wanted to ensure that the laws we had in place surrounding criminal incidents involving the death of an unborn child were adequate. Members will recall also the tragic case of Renee Shields. She lost an unborn child, whom she had named Byron, in a road rage incident in 2001.

Ms Shields' case highlighted a deficiency in the law which led the then Attorney General, Bob Debus, to commission a retired judge, the Hon. Mervyn Finlay, to look at the distressing and difficult issues raised when a criminal act against the mother of an unborn child results in the death of that child. Mr Finlay's work, along with the landmark decision of the Court of Criminal Appeal in R v King, led to the passage in this place of the Crimes Amendment (Grievous Bodily Harm) Bill, which became known as Byron's Law. Recently I met also with members of the Shields family who continue to suffer from the trauma of losing Byron in such tragic circumstances. Like Brodie Donegan and Nick Ball, they want to ensure that the law is properly equipped to punish criminal offenders whose actions lead to the death of an unborn child. I, for one, am determined to see that our criminal laws operate justly, especially for victims and their families.

Given that it has now been a full five years since the introduction of Byron's Law, in May this year I asked the Hon. Michael Campbell, QC, to review the criminal law in this area. He was eminently qualified for the task, having served as a former justice of the Supreme Court and as a former judge of the Court of Criminal Appeal. He appeared also before the Privy Council as a barrister representing the victims of the drug thalidomide. I can advise the House that Mr Campbell has now completed his review, which has been publicly released on the website of the Department of Justice and Attorney General. The Campbell review makes two recommendations to which the Government has given in-principle support.

In reaching this position, I met again with Brodie Donegan and Nick Ball, who indicated to me their support for Mr Campbell's proposals. The first of these recommendations is that the Government consider amending the Victims Support and Rehabilitation Act to include the loss of a foetus. According to the review, the purpose of such a change would be to ensure that a woman who loses a foetus as a result of criminal conduct could receive victims compensation without the need to establish psychological injury or that domestic violence was involved. The second recommendation is that the Department of Justice and Attorney General, together with the Motor Accidents Authority, consider either a legislative or an administrative scheme to provide for the payment of the funeral costs of a stillborn child.

Mr Campbell suggests also that the Government undertake further consultation with several organisations prior to introducing the changes. The Government accepts and will act upon this further suggestion. The review also provides a thorough examination of current laws surrounding criminal incidents involving the death of an unborn child. Mr Campbell has assessed existing offences and penalties and provided detailed consideration as to whether there is a need for any new offences or changes to existing offences. In particular, he examines the effectiveness of the legal changes introduced by the Government in 2005, which allow a person to be charged with grievous bodily harm if his or her criminal action results in the death of an unborn child.

The Hon. KAYEE GRIFFIN: I ask a supplementary question. Could the Attorney General elucidate his answer?

The Hon. JOHN HATZISTERGOS: These changes, which became known as Byron's Law, mean that a person whose criminal actions result in the death of an unborn child can now face up to 25 years imprisonment if he or she is found guilty of causing grievous bodily harm with intent. In measuring this offence against alternative proposals Mr Campbell reaches this conclusion:

The current law does provide punishment for someone who culpably destroys a foetus albeit by way of an offence against the mother.

He then states:

... I do not recommend the introduction of ... any other specific offences for cases involving the death of an unborn child.

My office has spoken with members of Ms Shields' family about this finding and I understand that they are pleased with the confirmation that Byron's Law is working effectively. This is a difficult and complex area of the law but, as cases like that involving Brodie Donegan and Nick Ball show, it is an area in which we need to get things right. Subject to that further consultation which I noted earlier, the recommendations suggested by Mr Campbell should lead to improvements to the rights of victims in this area. I therefore thank Mr Campbell for his energy, dedication and hard work in undertaking this important review.

PEST AND FERAL ANIMALS

The Hon. ROBERT BROWN: My question is directed to the Minister for Transport, representing the Minister for Climate Change and the Environment. Why do the Department of Environment, Climate Change and Water and the New South Wales National Parks and Wildlife Service no longer provide adequate reporting information on their pest and feral animal programs in their annual reports? What is the total confirmed number of pest or feral animals by species that have been removed from each reserve or national park in New South Wales for each financial year since 2002? How does the New South Wales National Parks and Wildlife Service confirm these kills or their removal?

The Hon. JOHN ROBERTSON: As the Hon. Robert Brown asked a detailed question I will refer the matter to the Minister for Climate Change and the Environment and undertake to provide the member with an answer.

SUPERANNUATION LOSSES

The Hon. GREG PEARCE: I direct my question to the Treasurer. Can he explain the implications of the turnaround in superannuation for the 2009-10 year—from a projected gain of $2.092 billion in the 2010-11 budget estimate released in June, to a loss of $3.156 billion in today's State accounts—a negative turnaround of $5.248 billion? What are the impacts on the State's financial position and ratings?

The Hon. ERIC ROOZENDAAL: I give the Hon. Greg Pearce points for looking through these terrific budget papers which are a testimony to the strength of the New South Wales economy, and which show a massive turnaround in the State's budget result. Of course, Opposition members are doing what they do best: they have started looking through the budget papers. The Hon. Greg Pearce could not get us on revenue, on expenses or on operating results, so he had to dig through the budget papers. I believe he referred to page 112 of the budget papers. I admire his tenacity in digging that far through the budget papers. I am aware that superannuation unfunded liability is a bugbear for the Ken doll of the Liberal Party. This is one of his big issues. I suspect he probably wrote this question. However, I advise the House and the Hon. Greg Pearce—

The Hon. Greg Pearce: No, I did it on my own.

The Hon. ERIC ROOZENDAAL: The Hon. Greg Pearce said that he wrote this question on his own. He gets a star for trying. However, that is an indictment on the shadow Treasurer. The Hon. Greg Pearce has to do his own work because he knows that he cannot rely on the shadow Treasurer to do anything. Every time the shadow Treasurer makes an announcement it is usually wrong or he makes up the numbers. I feel for the Hon. Greg Pearce but I congratulate him on his independence. On a serious note, the member well knows that the Mercer triennial review confirmed that the New South Wales Government is on track to fully fund defined benefit superannuation liabilities by 2030. The document—and the Hon. Greg Pearce knows this—confirms that we are on track to have all our unfunded superannuation liabilities met by 2030.

CENTRAL COAST REGIONAL TRANSPORT STRATEGY

The Hon. PENNY SHARPE: My question is addressed to the Minister for Transport. Will the Minister inform the House about the Central Coast Regional Transport Strategy?

The Hon. JOHN ROBERTSON: I acknowledge the member's ongoing interest in this matter. The Central Coast is one of fastest growing regions in New South Wales. By 2036 the population on the Central Coast is forecast to grow by 120,000 people, with 45,000 new jobs predicted by 2031. With the growth that is expected over the coming years, an integrated and well-connected transport system is essential for the Central Coast. That is why this Government is investing in transport projects right across the region. I am pleased to inform the House that today the Government released the draft Central Coast Regional Transport Strategy. That document sets out the actions this Government will take to support the growing population on the Central Coast and provide a modern and efficient transport system for the region. The strategy includes investment in roads, commuter car parks, train stations, new buses and new trains.

This comprehensive plan recognises the importance of the Central Coast to New South Wales. In two weeks time one of the first actions to arise out of the regional transport strategy will be put into place: 41 brand new buses will be delivered to Central Coast bus operators Busways and Redbus to deliver a huge increase in services. These buses are in addition to the 16 new vehicles delivered last financial year to boost service on the coast. From 8 November, in less than two weeks, more than 1,500 extra bus services a week will operate on the Central Coast. These services include new late-night buses, more frequent services during peak periods, and better connections between towns and suburbs on the coast and at our major train stations and transport interchanges.

These buses will unlock new opportunities for young people, pensioners, workers and their families to access employment and education. Those on the other side would never deliver these sorts of changes. The Government is extremely proud of this achievement. Residents in Budgewoi, Bateau Bay, Norah Head, Berkeley Vale, Umina, Wamberal, Forresters Beach, Lake Munmorah, Kariong, Somersby, Wyoming, Toukley and Morisset, to name just a few, will benefit from these new services, which are the direct result of the tireless advocacy of the local members on the Central Coast—David Harris, Marie Andrews, Grant McBride and Robert Coombs.

The Regional Transport Strategy and this major investment in bus services build on the Government's transport achievements, such as new commuter car parks at Ourimbah, Tuggerah and Morisset; new OSCar trains with CCTV, air conditioning, toilet access for disabled passengers, on-board passenger information screens, and comfortable seats with graffiti and fire-resistant coverings; 16 new wheelchair-accessible, air-conditioned buses; and a $195 million upgrade of the rail tracks between Gosford and Newcastle.

Under the draft Central Coast Regional Transport Plan, the New South Wales Government will deliver new commuter car parks at Wyong, Woy Woy and Gosford; a major Tuggerah railway station upgrade; more outer suburban rail carriages for the Central Coast; and several roads projects under the $300 million commitment to Central Coast roads from 2007 to 2011. These include Avoca Drive, Sun Valley Road to Bayside Drive; Central Coast Highway, Carlton Road to Matcham Road; Central Coast Highway, Woy Woy Road intersection upgrade; and Terrigal Drive improvements, with further upgrades continuing beyond 2012. Following wide consultation, the draft strategy is now on public display for further community feedback until 26 November 2010. I encourage anyone with an interest to take a look at www.nsw.gov.au/shapeyourstate. [Time expired.]

PEST AND FERAL ANIMALS

The Hon. ROBERT BORSAK: My question without notice is directed to the Minister for Transport, representing the Minister for Climate Change and the Environment. What was the statewide total cost in support and administration resources required in staffing and expenditure, travel and accommodation and all other costs associated with staff involved in projects for each financial year since 1 July 2002 for the New South Wales National Parks and Wildlife Service in respect to the removal and monitoring of pest and feral animals in each reserve or national park?

The Hon. JOHN ROBERTSON: I will refer that question to the Minister for Climate Change and the Environment and undertake to obtain an answer for the member.

ELECTRONIC INTEGRATED TICKETING

The Hon. JOHN AJAKA: My question without notice is directed to the Minister for Transport. Does the Minister recall his predecessor, then Minister David Campbell, announcing in May this year that electronic integrated ticketing would be up and running in 2012? Following an answer to a question taken on notice during the budget estimates hearing, will the Minister now acknowledge to the House that a complete rollout of electronic integrated ticketing will not take place until 2014? Can the Minister explain to the House the discrepancy between the announcement of his predecessor and the information he has provided most recently?

The Hon. JOHN ROBERTSON: We are implementing electronic ticketing. We have signed a contract with a consortium that contains the organisations that rolled out the world-famous Oyster card. We are confident that this rollout will occur because this is tried and tested technology that will be implemented progressively across our transport network commencing from 2012.

The Hon. Charlie Lynn: We know it is a struggle, but carry on.

The Hon. JOHN ROBERTSON: It is a struggle listening to rubbish coming from you, Charlie. This consortium delivered the world-famous Oyster card. This project is on time and meeting the appropriate milestones. This Government is delivering on electronic ticketing.

The Hon. Duncan Gay: That is what the last Minister said. It is the same comment as your predecessor.

The Hon. JOHN ROBERTSON: I love how Opposition members ask the question but then just keep talking and take no real interest in it. We are delivering. The rollout will commence in 2012. We will progressively roll them out across the rest of our public transport network.

SHOWGROUND UPGRADES

The Hon. CHRISTINE ROBERTSON: I address my question to the Minister for Lands. Can the Minister advise the House on government assistance provided for the upgrading of showgrounds in New South Wales?

The Hon. TONY KELLY: I thank the member for her question and continued interest in the importance of showgrounds to rural New South Wales. So far this year, three-quarters of a million dollars has been budgeted for the improvement of showgrounds. Grants and interest-free loans drawing from this budget are made under the Public Reserves Management Fund, which is managed by the Land and Property Management Authority. These funds will help drive the development, maintenance and upgrading of Crown land showgrounds. Showgrounds play a key role in the social, sporting and economic life of many communities across country New South Wales. They provide an avenue and a venue for agricultural shows, markets, concerts, rodeos and festivals, as well as a base for many local sporting clubs and social groups.

So far, I have approved grants and loans totalling more than $478,000 for 15 showgrounds across rural and regional New South Wales, including in Collarenebri, which the Hon. Christine Robertson would be pleased to note. Other showgrounds receiving funding include those in Kangaroo Valley, Cobargo, Pambula, Moruya, Bribbaree, which is a fantastic little showground, Mullumbimby, Kyogle, Bellingen, Bangalow, Grafton, Kempsey, Kendall, Dungog and Maitland.

The Hon. Matthew Mason-Cox: You have been everywhere.

The Hon. TONY KELLY: I have been to most of them.

Reverend the Hon. Dr Gordon Moyes: Are you charging them more on leases?

The Hon. TONY KELLY: I acknowledge the interjection. These showgrounds are run by showground trusts. There is no lease or lease payment. Maitland Showground is home to Australia's most successful regional markets, the Maitland markets. Maitland Showground also hosts the annual Groovin the Moo music festival, which is regularly headlined by popular international music performers. Maitland showground will receive $90,000 towards building an amenities block. Showgrounds in the State's south will receive $68,000 this year, and that includes the showgrounds in Pambula, Cobargo and Moruya. These funds will finance the construction of equestrian areas for the Pony Club at Pambula Showground, upgrade the gates of the rodeo yards at Moruya Showground, and electrical repairs at Cobargo Showground. Kyogle Showground, which provides camping and caravanning facilities for tourists, as well as being the home of the annual Kyogle Show, will receive $49,000. This will help fund the refurbishment of the caretaker's cottage.

Whether large or small, each showground grant and interest-free loan helps support the social and economic life of our regional communities. Every year hundreds of thousands of dollars in funding is distributed to regional showgrounds throughout the State to ensure their continued improvement for the people of New South Wales to enjoy. Residents can be assured that the Government is looking after the present and future needs of these showgrounds that are so important to our communities. This follows through our State Plan commitment to ensure Crown reserves, parks, playgrounds and showgrounds are maintained and improved for the benefit of the people of New South Wales.

FLYING FOX CONTROL

The Hon. IAN COHEN: I direct my question to the Treasurer, and Minister for State and Regional Development. Has the Minister recently withdrawn the proposed funding support to net orchards in the Sydney Basin against the predation of grey-headed flying foxes? Is this because these bats, which are endemic to the Sydney Basin, temporarily flew to Batlow and Orange? Given that the flying foxes will return to Sydney orchards, does the Minister agree that, to assist farmers to net their orchards and remove the licensing scheme, a far better solution is to shoot the bats?

The Hon. ERIC ROOZENDAAL: I am advised that the Government has been working with commercial fruit orchard owners and other affected growers to develop an economic assistance package for the rollout of full exclusion netting to protect against damage from flying foxes. The Government initiated an independent review of the licensing system that produced a report in 2009. At that time, all stakeholders agreed that exclusion netting is the most effective strategy for minimising damage to crops as well as protecting the welfare of flying foxes. The department recently completed its consultation with stakeholders on the specifics of an industry assistance package to facilitate the netting of crops and put that proposal to the Government for consideration. Further questions on this matter should be directed to the Minister for Climate Change and the Environment.

AMBULANCE HELICOPTER PERFORMANCE

The Hon. JENNIFER GARDINER: In directing my question to the Treasurer, I point out that EC145 rescue helicopters are based in Bankstown and Orange, and I ask: Does the Treasurer recall the question I asked last February following an incident in which one of the helicopters could not take off at the Orange Base Hospital when it was fully loaded because the engines were not powerful enough for a vertical lift-off? Does he recall responding to my question by saying that he was going through the budget process, and that the budget process would be undertaken "in the best interests of the people of New South Wales"? Since his Government did not allocate in the budget any additional funds to fix the issues plaguing these helicopters, is he aware that paramedics are now refusing to fly in the helicopters until the problems are fixed? Is that in the "best interests" of the people of New South Wales? Will the Treasurer now ensure that the funds required to fix the helicopters are allocated?

The Hon. ERIC ROOZENDAAL: I thank the member for her question. I will pass it on to the Minister for Health to provide an appropriate response.

WESTERN EXPRESS AND CITY RELIEF LINE PROJECT

The Hon. IAN WEST: My question is addressed to the Minister for Transport. Will he inform the House of the latest news on the New South Wales Government's Western Express and City Relief Line project?

The Hon. JOHN ROBERTSON: I thank the member for his question. One of the most important projects as part of the New South Wales Government's 10-year fully funded Metropolitan Transport Plan is the $4.5 billion Western Express and City Relief Line project. This project will deliver significant improvements for rail services from western Sydney and it will have flow-on benefits for commuters right across the CityRail network. It will increase the number of seats available for western Sydney commuters by approximately 6,000 per hour during the morning peak. It will also provide faster and more frequent services from western Sydney to the city. That will be achieved by running longer trains from western Sydney and extending platforms at key stations to accommodate the extra length of the trains. That will increase capacity to enable new express train services to operate for people who live in the Blue Mountains, Richmond, Penrith, Blacktown and Parramatta.

Just as importantly, the Western Express and City Relief Line will enable us to maximise the benefits of every other major infrastructure investment across the CityRail network. We cannot have new rail links to the growing centres of Sydney without the capacity to include additional trains that travel into the central business district. That is exactly what the Western Express and City Relief Line will deliver. Construction of the City Relief Line, which will run underground from Redfern through to Wynyard and with new platforms at Redfern, Central, Town Hall and Wynyard, will provide direct connections to Barangaroo.

The City Relief Line will deliver additional capacity directly into the heart of the city. That will enable the introduction of express services that will slash travel times for commuters who travel from the western suburbs of Sydney. Western line trains will be diverted via the central business district Relief Line, thereby releasing capacity for additional services from other lines into the central business district. With additional rolling stock funded as part of the Metropolitan Transport Plan, the Western Express and City Relief Line will provide capacity for more services into the city on the Bankstown line, the Main South line, the Illawarra line for trains travelling from Hurstville to the central business district via Sydenham, the Inner West local services, and the main Northern line via Strathfield into the city.

The Western Express and City Relief Line is the foundation for growth of our railway network and a critical piece of the Metropolitan Transport Plan. Right now we are concentrating on delivering the Western Express and City Relief Line and delivering benefits for commuters as part of the Government's 10-year fully funded Metropolitan Transport Plan. It is important that large-scale transport infrastructure projects are undertaken with the long-term transport needs of Sydney in mind. It is clear that the Western Express and City Relief Line will benefit nearly every line on the CityRail network. It will improve services for hundreds of thousands of commuters every day. One would think the Opposition would be all over this. One would think that a project that will improve services for so many commuters would be a no-brainer. However, members of the Opposition have consistently refused to support this $4.5 billion project.

The Government is committed to a project that will deliver thousands of new seats on public transport vehicles for western Sydney commuters every peak hour. That will free up significant amounts of transportation capacity right into the heart of the city. What is the Opposition putting forward when it comes to passenger transportation? Nothing! The Opposition will not back the Western Express and City Relief Line and will not back the Parramatta to Epping rail link. This is $7 billion in public transport infrastructure that the Opposition will not back because it thinks that it is not what commuters need. Commuters deserve to know what the Opposition's transport plans are.

Talk about "Starting the Change"! The first change should be an actual transport strategy from the Opposition, or some support for the infrastructure that the people of New South Wales want and that the people of New South Wales deserve. That is being delivered right now by the New South Wales Government.

BUS PASSENGER SAFETY

Ms CATE FAEHRMANN: My question is directed to the Minister for Transport. Is it the case that the new bendy buses that have been purchased for the red Metrobus routes contain fewer seats than do the previous blue bendy buses? What is the maximum speed at which the buses can operate with standing passengers? Is it a fact that passenger safety is more at risk by increasing the ratio of standing to seated passengers in the new buses?

The Hon. JOHN ROBERTSON: The State Transit Authority takes passenger safety on buses extremely seriously. I am advised that before Metrobuses were introduced to the Sydney bus network, State Transit undertook a comprehensive trial and evaluated all safety aspects of the new Metrobuses in the knowledge that the buses would be safe and comfortable for passengers while providing a range of new travel benefits previously not seen, including a huge increase in capacity, frequency and improved service times. Following concerns expressed by the union about three-door articulated buses, or bendy buses, an independent safety assessment of the new buses also was carried out.

All the recommendations of the independent assessor were adopted by the State Transit Authority, including the inclusion of additional handrails, hand straps, the installation of extra cameras as well as more signage. Bus travel is the safest form of transport around the city—safer than private car transport. In evaluating safety for the Metrobus trial, State Transit considered a number of different independent studies that all confirmed that bus transport was the safest mode of transport.

The claim made in the stories that have been published—that two passengers a day are injured on State Transit buses—is completely wrong. The fact is that over a period of two years, since Metrobuses were introduced in 2008, two passengers on articulated Metrobuses were injured as a result of falls and neither required medical treatment. More than five million people have used Metrobuses in that time. The Government will continue to roll out those buses.

JUVENILES ON REMAND

The Hon. DAVID CLARKE: My question is directed to the Attorney General. Is he aware that the report by the Bureau of Crime Statistics and Research, which was released yesterday, confirms that innocent people are being held on remand and in detention centres in the State? Most significantly, as more than 11 per cent of 205 juveniles who were refused bail last year ultimately were found not guilty, or had their charges dismissed, does the Attorney General and his Government still maintain that section 22A of the Bail Act is appropriately dealing with juveniles and should remain in force?

The Hon. JOHN HATZISTERGOS: I thank the member for this question. The issue of section 22A has been debated in this House on a number of occasions. I remind the member of what the Opposition said when the bill was first introduced in 2007 as part of debate on the Bail Act Amendment Bill. Not only did the Opposition support the bill but also the shadow Attorney General stated:

The aim of the bill, generally, is to restrict magistrate or judge shopping—and there is no doubt that that occurs, I have seen it.

That is what he said. The Hon. John Ajaka, who is now sitting next to the Hon. David Clarke, the member who asked the question, said this:

He also stated that the Opposition does not oppose an accused making only one application before a magistrate. I just wonder what has changed to make the Opposition now completely disregard the interests of victims and give the green light to the insidious practice of judge shopping. The member would know that we made an amendment following a Bureau of Crime Statistics and Research review that revealed two issues were contributing to the increase. One of them, which was not actually a contribution, was the issue of section 22A.

At the same time as police activity on bail enforcement increased, changes were made to section 22A. As I said, there was a correlation between the numbers rising and increased policy activity. The connection was temporal, not causative. Nevertheless, the Government changed the legislation following the Bureau of Crime Statistics and Research review—and again it was supported by all the parties. That legislation enables a person to make an application to the court, including the Children's Court, for bail at any time, but the onus is on the court ultimately to determine whether on a subsequent occasion there is either a change of representative or, alternatively, new material. Is the Hon. David Clarke suggesting that a victim—

The Hon. Michael Gallacher: He's not suggesting anything; he is asking you a question.

The PRESIDENT: Order! I place the Leader of the Opposition on a call to order.

The Hon. JOHN HATZISTERGOS: Is the honourable member suggesting that a person should be able to make multiple bail applications based on exactly the same material, hoping that there might be a change of judicial officer who might be more inclined to grant bail than not? By the way, the statistics show decreases in the number of juveniles who have been put on remand, not increases as the honourable member said. I can get statistics for the honourable member to demonstrate that. So that is what has happened. The honourable member would be well advised also to read a recent study by the Bureau of Crime Statistics and Research into presumptions in the Bail Act and the characteristics of offenders who are refused bail.

Overwhelmingly, the study shows that the factors that contribute to people being refused bail are their antecedents and their commission of offences or breach of bail history. Is the honourable member suggesting that we should junk all that, put it aside and not take it into account? The honourable member needs to reflect on that. I know there is a sharp division of opinion in the Opposition about what should be happening in the criminal justice system. We have already had the Opposition staking a claim that a Coalition government would basically open jail doors and release criminals. Members opposite have said many times that there are too many people in jail. Then we have the latest rhetoric— [Time expired.]

MONARO RESPITE SERVICES

The Hon. HELEN WESTWOOD: My question is addressed to the Minister for Disability Services. Will the Minister outline what the New South Wales Government is doing to provide respite and other vital services in the Monaro area?

The Hon. PETER PRIMROSE: The Keneally Government understands the importance of respite for people who care for a person with a disability and their families. The Keneally Government's 10-year plan for disability services, Stronger Together, provides for greater assistance for people with a disability and their families. It will deliver $1.3 billion in extra funding over the period from 2006 to 2011. These funds are making a real difference for people with a disability, their families and their carers. This can be seen in the significant increase in respite places across the State. We are committed to expanding respite opportunities, and we have the runs on the board to back up that commitment.

In 2009-10 the Disability Respite Program supported an estimated 10,000 families in centre-based, respite, in-home and other types of service provision at a total cost of $121 million. In 2010-11 the disability respite budget has increased to $126 million. Through Stronger Together, an additional $69 million will be provided over the first five years to provide more respite places. A perfect example of this expansion of respite services can be seen in the Monaro electorate. The New South Wales Government provided capital funding of $1 million to Life Without Barriers to purchase a four-bedroom home for the provision of respite services. Life Without Barriers purchased a property in Queanbeyan for the development of the Moudji Centre, which I had the pleasure of officially opening on 24 September this year with the member for Monaro, Steve Whan.

In addition to the capital funds, recurrent funding of $448,000 has also been provided for the ongoing operation of the respite facility. Each year the Moudji Centre will provide 51 respite places for 22 children between the ages of 7 and 12 years and 29 adults between the ages of 18 and 64 years. Respite services will be offered for up to four individuals at a time for a period of four to seven days, including weekends and school holidays. A further recurrent amount of $123,000 through the Ageing Parent Carer Initiative has also been provided, and that will increase the capacity of the respite facility by the equivalent of one extra bed. The Moudji Centre will provide respite to support families and carers in their ongoing caring roles, and provide children, young people or adults with a disability with meaningful social, recreational and developmental opportunities.

In addition to this, the Government continues to provide a wide range of services in the Monaro area that have a respite effect, such as post-school programs and day programs, including the recent Active Ageing and Life Choices initiatives. During June and July this year I hosted a series of 13 consultations across the State in both metropolitan and rural areas, including the Monaro area. These consultations were a great opportunity to receive feedback from people with a disability, their families and their carers, disability service providers, peak organisations and interested community members. The member for Monaro also attended the consultation in Queanbeyan.

These face-to-face consultations across New South Wales allowed Ageing, Disability and Home Care to develop themes for the second phase of Stronger Together. I welcomed the opportunity to meet with clients, families, members of the community at large and representatives from the disability sector, and to hear how we can continue to improve disability services in New South Wales. As with the first stage of Stronger Together, stakeholder consultations are critical in making sure we get the next five years right.

BUDGET ERRORS

Dr JOHN KAYE: My question is addressed to the Treasurer. Is the Treasurer aware of the Auditor-General's report released this morning which identified billions of dollars of errors in the budget? What steps has the Treasurer taken to minimise the number of errors in the budget? What steps will he take to avoid a repetition of this particularly embarrassing set of errors?

The Hon. ERIC ROOZENDAAL: The member is being a bit unfair about the Auditor-General's report. The Auditor-General raised some issues in relation to several agencies, and that is appropriate. However, it is important to consider those issues in the context of the whole document. I recommend to everyone the report on the State Finances 2009-2010, which goes into that in detail. Obviously the Government takes seriously the recommendations of the Auditor-General. Indeed, in October the Public Accounts Committee made recommendations to improve the quality and timeliness of financial reporting. The Government is considering those recommendations. We continue to work to make these documents as accurate as possible and to accurately reflect the State position. That is one reason we have been able to maintain and protect our triple-A credit rating. Also, we have the respect of many other parts of the world because of our solid reporting and the solid results we have achieved in both the budget and the New South Wales economy.

KENDALL BAY MARINA

The Hon. DON HARWIN: My question without notice is directed to the Minister for Planning. Is the Minister aware that the Department of Planning has allowed only eight weeks, until 30 November, for the lodgement of objections to the Kendall Bay Marina? Is he aware that the environmental assessment runs over 1,500 pages split among 10 volumes? Does he consider eight weeks sufficient time for members of the public to read, understand and commission legal and technical advice on a project of this size? Will he extend the exhibition period to allow the community to give genuine feedback?

The Hon. TONY KELLY: The normal time given by councils and the department with regards to exhibitions and the calling for submissions is generally about 30 days. On occasions that period is extended. The Hon. Don Harwin has advised that the period has been extended to eight weeks, and that sounds reasonable.

COMMUNITY-BASED CRIME PREVENTION PROJECTS

The Hon. TONY CATANZARITI: My question is addressed to the Attorney General. What is the latest information on community-based crime prevention projects?

The Hon. JOHN HATZISTERGOS: The Government does not pull any punches in the fight against crime. In its last quarterly report the Bureau of Crime Statistics and Research found that all major crime categories either have been stable or have fallen over the past two years. We also need to examine the causes of crime and to prevent crime from happening in the first place. That is why we are committed to further reducing crime rates through innovative crime prevention programs and a number of other projects such as the Designing Out Crime Research Centre at the University of Technology, the Patron Safe Strategy in The Rocks, the Retail Security Project and the Steal from Motor Vehicle Project.

In 2010-11 the Keneally Government will help local communities tackle crime in their neighbourhoods by providing more than $2.6 million to fund local crime prevention projects. This includes $1.61 million in funding to local councils for their crime prevention plans and $1 million in funding to local councils or local organisations to deal with graffiti in graffiti hot-spot areas. Through the Crime Prevention Program, the Government provides expert advice to assist councils across New South Wales in developing crime prevention plans, plans that are assessed by the Department of Justice and Attorney General with input from the Police Force and the Department of Community Services and plans that, once approved, can attract funding so that they can be implemented.

The Crime Prevention Program is led by the Department of Justice and Attorney General, which develops evidence-based policies and programs and is committed to achieving the following goals identified in the State Plan: reduced rates of crime, particularly violent crime; reduced re-offending; and reduced levels of antisocial behaviour. The Government believes that by working in partnership with communities, councils, businesses and other service providers it can radically and collaboratively change the way it deals with crime and its prevention at all levels.

To give members some examples, in 2009-10 the following grants were awarded by the Government for crime prevention projects: in Ashfield, for malicious damage and graffiti, $50,000; in Burwood, for the Watch Out Campaign, robbery and steal from person, $44,400; in Canterbury, for Operation Car Safe, car theft steal from motor vehicle, $50,000; in Cessnock, for malicious damage, $6,000; in Coffs Harbour, for alcohol-related assault, $50,000; in the Great Lakes, for malicious damage and graffiti, $10,310; in Kogarah, for steal from motor vehicle, $14,375; in Liverpool, for steal from motor vehicle, $44,462; in Nambucca, for malicious damage and graffiti, $12,710; in Orange, for malicious damage, $25,000; in Parramatta, for steal from person and robbery, $50,000; in Shellharbour, for malicious damage and graffiti, $15,628; and in Strathfield, for break and enter dwelling, $50,000. In this 2010-11 financial year a total of $3,060,000 will be spent on crime prevention projects. I point out that so far we have seen no Opposition policy or plans on crime prevention. The fact remains we await to see a single policy from the Opposition to deal with the causes of crime.

PRESTONS RECYCLING DUST HAZARD

Reverend the Hon. Dr GORDON MOYES: My question is addressed to Minister for Transport, on behalf of the Minister for Climate Change and the Environment. Is the Minister aware that NACE Civil Engineering Pty Ltd on Yarrawa Road, Prestons actively grinds used road materials and then stores them in large piles outdoors for recycling? Is the Minister aware that Liverpool councillors have argued with NACE engineering that the dust caused by this process is picked up by the wind and blown throughout the Prestons area, including residential areas? Is the Minister aware that some of the substances, including silica, are breathed in daily in micro particles and can cause respiratory illnesses similar to asbestosis? Will the Minister indicate why NACE engineering is not covering its outdoor recycled goods to prevent airborne pollution? Has NACE engineering been fined for environmental breaches?

The Hon. JOHN ROBERTSON: That was quite a detailed question about specific matters. While I am aware of the effects of silica and of the company I am not aware of the details in relation to the matters raised. I will refer the question to the Minister for Climate Change and the Environment and will undertake to provide the member with an answer.

COURT TRANSCRIPT COSTS

The Hon. TREVOR KHAN: My question is directed to the Attorney General. Is the cost of obtaining a copy of a court transcript for matters under three months old currently $9.30 per page and $10.60 per page for matters older than three months? What is the Attorney General doing to reduce the costs of transcripts so that they are not so expensive for members of the public of New South Wales?

The Hon. JOHN HATZISTERGOS: I understand the member's interest in this matter having been a long-term practitioner but I must say it has been a while since I have actually had to pay for a transcript. I am not familiar with the relevant cost basis of the process. We are doing a lot in this regard to ensure that we continue to provide a cost-effective, prompt and high-quality service. I will take the question on notice.

LOCAL ENVIRONMENTAL PLANS

The Hon. LYNDA VOLTZ: My question is addressed to the Minister for Planning. Will the Minister update the House on Government improvements to local environmental plans?

The Hon. TONY KELLY: While local environmental plans should reflect local conditions in the 30 years since they were introduced, many contain different ways of achieving the same outcome. This can be confusing and costly. The standard instrument is a way of standardising common content while allowing local environmental plans to contain clauses that deal with truly local conditions. For example there is now one definition for "extractive industry" instead of the previous 16 different definitions, and one definition for "gross floor area" instead of the previous 10. Prior to the local environmental plan reform program there were 5,500 local environmental plans, 3,100 different zones and 1,700 different definitions across New South Wales.

Let me stress this is not a one-size-fits-all local environmental plan. We recognise that each council is different and their constituents can have considerably different needs from those of constituents in the nearest council. That is why we have undertaken extensive consultation with the individual council officers to determine local priorities. This allows us to build an individual council's local environmental plan from the basic template we have set out There is ample opportunity for councils to outline their local needs and planning goals, and for them to be accommodated in their local environmental plans. And I think the results show that.

In August 2009 the Ministers for Planning and Local Government announced a priority program for the delivery of standard instrument local environmental plans. A total of 67 local environmental plans were targeted for completion by the end of June 2011. The department has been working closely with these priority councils to deliver local environmental plans within this timeframe. I advise the House that 25 standard instrument local environmental plans have now been finalised introducing modern planning controls for a diverse range of metropolitan, regional and coastal councils. More than 50 section 65 certificates have been issued to allow exhibition of draft local environmental plans.

To further assist councils with implementation of the standard instrument local environmental plan, a suite of measures was announced in the Government's 2011-2012 budget, as part of a $44 million Comprehensive Housing Supply Strategy, including funding of $10 million over a two year period for alocal environmental plans acceleration fund to assist councils to deliver standard instrument local environmental plans, with priority for Sydney, the Lower Hunter and the Illawarra; and an allocation of $2.9 million to the Department of Planning to assist councils to deliver standard instrument local environmental plans, to accelerate spot rezonings and to review existing planning controls to identify and remove inappropriate housing restrictions.

This funding is intended to supplement the work already undertaken by councils and the department in the preparation of local environmental plans and will assist councils to complete the technical studies required to underpin plans, resolve local environmental plan policy and drafting issues and complete the necessary mapping. As a result of this additional funding, the department is revising its target to deliver significantly more than 67 local environmental plans by June 2011 and all 152 by June 2012. The success of this process refutes suggestions that we cannot work with local councils to provide for all the different local government areas. The New South Wales Government will continue to work with councils with a view to having their standard instrument local environmental plans in place as soon as practicable.

The Hon. JOHN HATZISTERGOS: Tragically, question time has come to an end. I suggest that if members have further questions, they place them on notice.

JUVENILES ON REMAND

The Hon. JOHN HATZISTERGOS: Further to the question asked of me earlier by the Hon. David Clarke, I provide the following additional information. I am advised that the latest figures from the Department of Juvenile Justice show that in the financial year 2009-10 there was an 8 per cent reduction in the average daily number of young people remanded in custody awaiting the finalisation of court proceedings, down from 227 in 2008-09 to 208 in 2009-10, and the average length of time in custody on remand fell from 13.2 days in 2008-09 to 10.5 days in 2009-10.

Questions without notice concluded.

[The President left the chair at 1.03 p.m. The House resumed at 2.30 p.m.]

ASSENT TO BILLS

Assent to the following bills reported:

BUSINESS OF THE HOUSE

Postponement of Business

Committee Reports Order of the Day No. 1 postponed on motion by the Hon. Michael Veitch.

SELECT COMMITTEE ON THE NSW TAXI INDUSTRY

Report: Inquiry into the NSW Taxi Industry

Debate resumed from 20 October 2010.

The Hon. JOHN AJAKA [2.31 p.m.], in reply: When this matter was last debated I was concluding my remarks, so I will be brief. I was saying that, as all 59 recommendations are clearly relevant and vital in the opinion of the committee, it is imperative in my opinion—and I believe that of the committee—that the Government give immediate attention to those recommendations and commence implementing them as soon as possible. If one had to select the two most important recommendations—as difficult as that would be—those relating to wheelchair accessible taxis are vital and should be implemented immediately for the benefit of people who require the services of those taxis. I will not repeat the recommendations.

The second area, which I had not mentioned, relates to the 10 per cent surcharge imposed by Cabcharge. The 10 per cent surcharge cannot be justified in any circumstances whatsoever under any possible commercial or fair trading scenario. When one looks at the average charges by facilities of a similar nature, one sees that a 10 per cent surcharge is clearly, and in my opinion grossly, excessive. It is a matter that the State Government must examine carefully, with a view to providing whatever assistance it can. The residents of New South Wales should not have to face that scenario. We are not talking about a small amount of money; we are ultimately talking about tens of millions of dollars. To use a colloquialism, passengers are being slugged. That is the only way to put it. This is a vital area that must be examined by the Government and the department, and appropriate action should be taken as soon as possible.

Finally, I again thank the staff of the secretariat for their fabulous assistance. It was an extensive inquiry during which almost every possible contingency occurred. The secretariat director, Rachel Simpson, Cathryn Cummins, Donna Hogan and Shu-fang Wei were sensational, as usual, in the assistance they provided. I also thank the Clerk and the Clerk's Office for the assistance they provided in an at times very difficult situation. I commend the report to the House.

Question—That the House take note of the report—put and resolved in the affirmative.

Motion agreed to.

JOINT STANDING COMMITTEE ON ELECTORAL MATTERS

Report: 2008 Local Government Elections

Debate resumed from 1 June 2010.

The Hon. MICHAEL VEITCH (Parliamentary Secretary) [2.35 p.m.]: I am pleased to contribute to the debate on the Joint Standing Committee on Electoral Matters report on the 2008 local government elections. This report was the outcome of an inquiry referred to the committee in March 2009, asking that the committee investigate all matters relating to the administration and conduct of local government elections, including in relation to the costs of the elections. This was the first time that the New South Wales Electoral Commissioner had taken full responsibility for running these elections, and it was the first occasion for parliamentary examination of the elections. The committee recognised the significant role that local government plays in our communities, and therefore the importance of a robust, transparent and independent election process. There were 4,620 candidates for the 2008 local government election in New South Wales, which was more than five times the number of people who contested the 2007 New South Wales State election.

The committee received 72 submissions from a range of stakeholders, including councils, political parties registered to run in local government elections and those registered to run in both State and local government elections, elected councillors, candidates, interested individuals, advocacy groups, the Local Government and Shires Associations, and the New South Wales Electoral Commission and Election Funding Authority. The committee also conducted public hearings, which provided councils, registered political parties and other stakeholders with the opportunity to express their views on the conduct of the elections. The committee made a great effort to hear evidence from councils from across the State, and 13 of the 23 councils that participated in the hearings were from outside the Sydney metropolitan area. The committee also heard from the Riverina and Murray Regional Organisation of Councils and the Local Government and Shires Associations. Disability advocacy groups, political parties, individuals and the New South Wales Electoral Commission also gave evidence to the committee during public hearings.

During previous elections the councils and shires have provided some election services in kind, an arrangement that had been negotiated between the New South Wales Electoral Commission and councils on an individual basis. This was the first time that the Electoral Commission had taken full responsibility for the elections and implemented a full cost-recovery model for the recovery of costs from councils for the Electoral Commission's work. In the course of the inquiry a number of councils across the State expressed concern about various aspects of the conduct of the elections. One key issue identified throughout the inquiry was the increase in costs to councils for the running of the elections. Many councils felt that the model used by the Electoral Commission for apportioning costs was an attempt to shift the fixed costs of maintaining the Electoral Commission onto local government.

The committee understood that the New South Wales Electoral Commission conducted and recovered the costs of the 2008 local government elections based on the legislative and policy framework introduced by the State Government in the lead-up to the 2008 elections. Under this framework the New South Wales Electoral Commission administered a full cost-recovery model in line with the New South Wales Government requirement that full cost recovery be undertaken for the conduct of local government elections. The committee wanted to explore further the concerns of councils regarding the cost of the elections and resolved to engage a recognised accounting firm to conduct an independent review. The firm of PKF Chartered Accountants conducted the review of costs and cost-recovery methodology used by the New South Wales Electoral Commission for the 2008 local government election. The report identified areas where cost calculations could be clarified, and concluded:

... that nothing has come to our attention that causes us to believe that the costs passed on to Local Councils in relation to the 2008 Local Government Elections are unreasonable.

The committee's report makes 16 key recommendations, which should assist in the conduct of future local government elections. For example, recommendation No. 7 suggests that the New South Wales Electoral Commission consider formulating a service charter for local government modelled on the Commonwealth Government Service Charter for departments and agencies dealing with the public.

Another recommendation was to amend the Local Government Act 1993 to allow councils to opt to use universal postal voting as the method of election. However, while the committee has identified a number of areas in which improvements can be made in the management of services by the Electoral Commission, the committee was not critical of the conduct of the elections overall. In fact, the committee acknowledged that the conduct by the Electoral Commission of the 2008 local government elections provided a comprehensive, transparent and impartial service to councils. Further, the committee accepted that to ensure the integrity of council elections the Electoral Commission should continue to conduct all elections.

This inquiry has been useful in enabling councils to highlight concerns about the conduct of local government elections, and the committee was able to recommend some practical steps to facilitate better communication between the Electoral Commissioner and councils at the next local government election. I acknowledge and thank the councils, disability advocacy groups, political parties and other stakeholders who made submissions and participated in the public hearings. In conclusion, I thank my fellow committee members for their contributions to the inquiry. I also extend my appreciation and thanks to committee staff members who assisted us throughout this inquiry and, of course, I thank Hansard staff. I commend this committee report to the House.

The Hon. DON HARWIN [2.41 p.m.]: On 9 April 2008, during my remarks on the Local Government Amendment (Elections) Bill 2008, I urged the Government to give the Joint Standing Committee on Electoral Matters a reference to inquire into the conduct of the local government elections after they had taken place later that year, and for it to take submissions on the matter as part of that inquiry. Some five months after the local government elections were held I am pleased that the Government proceeded with my suggestion. The former Premier referred the matter to the chair of the committee in early March 2009, with submissions taken the following month. Public hearings were conducted over two days—in late August and then again for one day in late October. The final report was published on 1 June this year—15 months after the referral of the inquiry from the Premier.

The committee process relating to State elections has been healthy, and it has been useful and constructive for the conduct of the 2008 local government elections to be subject to the same process, especially since they were held under the auspices of the New South Wales Electoral Commission for the first time. During the inquiry a wide range of issues were examined by the committee, including polling booth staffing levels, postal voting, absentee voting, the vote tabulation computer software, the central vote count priority list, the regional returning officer model, advertising of the election date and the polling localities, and the costs associated with recounts—a particular interest of mine.

The last issue, for example, was raised in relation to ward three of Shoalhaven City Council, where the final councillor's position—the fourth councillor elected in that ward of four—was decided by just two votes. There was no automatic entitlement to a recount because the ward was subject to a central data entry count rather than a local manual count. The candidate placed fifth was asked to pay in excess of $8,000 for a recount—almost twice the declared expenditure on her campaign. The report suggests that the fact that there were only two recounts versus 12 recounts in the 2004 elections clearly demonstrates that the poll was conducted successfully. However, I would argue that the drop in the number of recounts points to an unintended negative consequence of the cost-recovery model adopted by the New South Wales Electoral Commission, which deters candidates from challenging close results.

The principal issue for the inquiry, however, was the cost of running the elections, which is the subject of chapter 3 of the report. Councils expressed a variety of concerns about the full cost-recovery model of the Electoral Commission and argued that the process shifted fixed costs relating to maintaining the Electoral Commission onto local government, and that the attempt to reveal all costs and prevent councils from having to incur costs was flawed. Specifically, councils asserted that the cost for each elector quoted by the New South Wales Electoral Commission did not reflect the true cost of the election for many councils because it failed to include some transportation, labour and staffing costs, particularly with regard to pre-polling and advertising.

Several councils noted also that the New South Wales Electoral Commission was a monopoly service provider and that value for money had not been obtained in certain areas as a result of overservicing and inflexible centralised control, which prohibited the use of cheaper local services. The Hon. Mick Veitch and I remember hearing evidence from many councillors to that effect. The result was a massive increase in the cost burden shouldered by councils in 2008 compared with the previous round of elections. Randwick City Council, for example—a council that I know well—footed a bill for $450,752 for the 2008 local government elections, an 80 per cent increase, it claims, on the $251,000 cost that the council incurred for the previous ballot four years earlier.

Similarly, the 2008 poll cost Shoalhaven City Council—the local government area where I am a resident and a ratepayer—almost $400,000, which is practically double the cost of the 2004 elections. Significant concerns were expressed by so many councils that the committee, I think sensibly, engaged an external accounting firm to conduct an independent review of the costs and charges to councils for that election. PKF Chartered Accountants, the firm that was chosen, identified areas where cost calculations could be clarified, but its report concluded:

Nothing has come to our attention that causes us to believe that the costs passed onto local councils in relation to the 2008 Local Government Elections are unreasonable.

That finding has not been accepted easily by councils. Some staff and resource costs associated with the 2004 elections were absorbed by the councils. However, these hidden costs alone cannot explain the massive disparity between the expenses incurred by councils at the 2004 and the 2008 polls. Nevertheless, we heard extensive evidence from the Electoral Commissioner, which is in the transcript, that explains some of the disparity. While the committee found the Electoral Commission's overall handling of the poll to be "comprehensive, transparent and impartial", a number of areas were identified where there was scope for improvement in the management of services.

The committee suggested that the New South Wales Electoral Commission consider formulating a service charter for local government modelled on the Commonwealth Government Service Charter for departments and agencies dealing with the public, and that the Local Government Act 1993 be amended to require the Electoral Commissioner to provide a report to the appropriate Minister on each set of local government elections within nine months of the election. The committee was also of the view that the joint standing committee should hold an inquiry into the 2012 local government elections and that a higher proportion of the New South Wales Government's advertising budget ought to be spent advertising the next local government election in the fortnight preceding polling day.

Responding specifically to the concerns raised by councils about the 2008 local government elections, the committee proposed an external review of the operation of the full cost-recovery model for the 2012 local government elections. The committee recommended also that the New South Wales Electoral Commissioner provide detailed information about the budgeted and actual costs for the 2012 local government elections to all council general managers, including explanations as to what each line item covered and how it had been calculated and allocated.

Hopefully, that will allay some of the future concerns of councils. The inquiry proved to be useful and reaffirms the value to the Parliament of the Joint Standing Committee on Electoral Matters, a committee on which I have been pleased to serve since it was established—in fact, I called for its establishment in my maiden speech. It is appropriate that the committee examine the next local government elections, and I hope it is given a reference for such an inquiry shortly after the poll is held. I commend the report to members.

Mr DAVID SHOEBRIDGE [2.50 p.m.]: Report No. 3/54 of the Joint Standing Committee on Electoral Matters addresses in some detail the processes and many of the cost issues from the 2008 election. My experience at Woollahra council tells me that the 2008 local government election costs were exorbitant and not reasonably related to the services provided to residents during the election. I commend those aspects of the report. But the report fails to address some substantive issues that go to the fundamentals of local democracy. In this regard, I note particularly that it fails to address the undemocratic outcome of two-councillor ward systems. During the most recent budget estimates hearings I asked the Minister for Local Government about the recommendation regarding the forced amalgamation of Armidale Dumaresq Council with Guyra and Uralla shire councils, and the report's recommendation that a two-councillor ward system be instituted. The Minister's response to this important and vital issue for local democracy for those residents in regional New South Wales was simply that no final decision had been made yet.

The Minister's response is not good enough. The inquiry into the dismissal of Shellharbour City Council noted clearly the deleterious effect on the democratic and representative processes of two-councillor wards, and how that system played a part in the breakdown in process and accountability that ultimately led to the council's dismissal. While it may have suited the interests of Australian Labor Party councillors in Wollongong, Shellharbour and Botany over past decades, it is interesting to note that of the councils currently under administration, two of them—Wollongong and Shellharbour—had councillors elected by this most unrepresentative and undemocratic means. Perhaps it is not unreasonable to observe that this is not a coincidence. The failure of the committee to address this matter in its final report is a substantial lacuna; it ought to have been addressed.

Equally disquieting is that the non-resident voting issue has also not been addressed in the committee's final report. Non-resident voting should have departed with the end of the nineteenth century. Indeed, as we heard from Mr Foley's adjournment speech last week, for more than 100 years it has been part of Labor Party policy and, indeed, has been a substantial part of the reform agenda of small "l" liberals since at least the nineteenth century. Yet more than a century later we still have a property vote in local council elections. Perhaps Government and Opposition members could explain to the people of Marrickville why their mayor of the past two years—not the current one—does not live in Marrickville, why the Mayor of Burwood and Liberal candidate for Drummoyne does not live in Burwood, and why the Mayor of Strathfield has lived in Baulkham Hills these past two years? Perhaps these non-resident councillors could let people in their electorates in on this secret and tell them when standing for election that they do not live in the area. It is a travesty of local democracy that they do not because they are not required to do so.

Clearly, it is undemocratic to give people more than one vote, yet this situation is allowed to continue when someone is of property. The property vote continues to discriminate in favour of the relatively well-off; it should be opposed by all those who proclaim to be supporters of democracy. Finally—and to end on a positive note—I am glad that at least a couple of items in the Greens' submission were picked up in the final report, particularly recommendation 14, which suggests that greater priority be given to disability access to polling places. I had practical, on-the-ground experience at Woollahra, where the pre-poll booth was three flights of steps from the street. This is an important matter, and members might care about the indignity that people in wheelchairs suffer when they go to vote at that pre-poll booth. People in wheelchairs or with a substantial mobility condition are forced to wait on New South Head Road, Edgecliff, while a booth worker goes upstairs to drag down someone from the Electoral Commission and then either physically assist them up the stairs or get them to cast their vote in the street. The procedure is undignified, unseemly, inappropriate and discriminatory. It should never happen to anyone, and it ought not happen in the next local council election.

The Greens will watch closely how this recommendation is put in place by the next Government. Serious action must be taken to improve access to all polling stations across New South Wales. If schools are used as polling booths, an accessible classroom should be prioritised for the purpose. Polling booths should be situated in buildings that are not accessible only as a last resort. People with access issues must be able to exercise their right to vote in the same way and with the same dignity as their fellow citizens. Access is a basic right; it should never be an afterthought. It must be at the forefront when ensuring that our citizens can exercise their fundamental right of voting in their local democracies.

Dr JOHN KAYE [2.56 p.m.]: I follow Mr Shoebridge's important contribution regarding the undemocratic two-councillor ward system, and the issues of the non-resident roll and access for people with disabilities. I shall pick up on another issue upon which the committee failed to make a recommendation: the unfair voting system for popularly elected mayors. At present, the popularly elected mayor is elected separately, and not from amongst councillors. For example, in the case of the City of Sydney the Clover Moore group secured approximately 40 per cent of the vote, so it had four councillors from a total of nine. However, when the group won the mayoral vote its numbers effectively increased to five. This is because the mayor has the casting vote, and thus control over decision-making.

The current election system creates the opportunity for the mayor and his/her group to control councils without receiving a majority vote. The Greens recommended to the Joint Standing Committee on Electoral Matters that the procedure for electing a popularly elected mayor be changed so that the mayor is elected from among those councillors elected normally. That would stop double-dipping in the form of the mayoral vote and stop the flow-on of votes. Hence, it would mean a far more democratic and proportionately elected council. Just as the two councillor per ward system can lead to a breakdown in proportional representation, the quality of local government is reduced when there is a popularly elected mayor. Local government works best using its strongest asset: its closeness to the people. By breaking the nexus between those who are elected and proportional representation, a council's ability to represent the people who vote for it—the people it serves—is reduced.

Another good outcome from the joint standing committee's recommendations is the how-to-vote cards and shared polling booths. Complexity is created when a polling booth covers either two wards or two council areas. Of course, in that instance it is sensible to hand out how-to-vote cards showing the vote recommended in both wards polling at that booth. For reasons that are difficult to understand the New South Wales Electoral Commission in the 2008 election refused to register joint electorate how-to-vote cards, which means two or more electorates or wards on one card. The joint standing committee recognised that this was a disadvantage to voters, that it caused confusion, and that it probably would lead to an increase in the number of informal votes. Recommendation 13 states that joint how-to-vote cards should be allowed in future elections.

I now discuss absentee voting. One of the problems with local government elections is the number of ballot papers that it would be necessary to maintain to cover all possible absentee combinations. The Greens recognise that as we are now in the first decade of the twenty-first century it is possible to have print on demand for ballot papers and to accommodate individuals who wish to cast an absentee vote. We should recognise that Saturdays are busy times for many people. People are often away from home for most of their Saturdays, and their Saturday agendas generally are crowded. It is often very difficult for them to get to a polling booth within the 8.00 a.m. to 6.00 p.m. time span in which to cast a vote in their own electorate or their own ward. It would make perfect sense to have ballot papers stored on a computer for all of the electorates and wards and to create the opportunity for people to cast an absentee vote. That is not a difficult task and it would improve the capacity of people to vote when they are away from their ward or electorate.

I will briefly discuss the issue of spending more time and money on training electoral staff, particularly in relation to options that are available to voters. A great deal of anecdotal feedback from the 2008 local government election suggested that voters were receiving inconsistent and in some cases inaccurate advice from polling booth staff. The only way to overcome that is to ensure that all polling booth staff are adequately trained and are given specific training in relation to voting options. Because in effect we have three different voting systems at Federal, State and local levels, voters who attend polling booths often are confused about the options that are available to them. It becomes even more confusing for them when they receive inconsistent or incoherent advice from polling booth staff. The time has come for the State Government to allocate time and money to ensure that polling booth staff are properly trained, particularly in relation to voting options.

In conclusion, I will discuss briefly notification of the election—which is a good news story. In the past the New South Wales Government has not spent much of its advertising budget on informing people when the next local government election will proceed. Recommendation 5 of the joint standing committee points out that it is important for people to be notified about forthcoming elections. The standing committee recommended that a higher proportion of the New South Wales Government's advertising budget should be spent in that crucial fortnight prior to an election on alerting people to their responsibility to vote. It is fundamental to the quality of local government to decrease the number of people who do not vote as well as the number of people who miss out on voting. The Government should implement that important recommendation.

The Hon. JENNIFER GARDINER [3.03 p.m.]: Since 1993 The New South Wales Electoral Commission has been faced with an increasing requirement under statutes to conduct local government elections, and that has increased the need for the budget of the Electoral Commission to be boosted. The Local Government Act 1993 confers upon councils the responsibility to meet costs incurred by the New South Wales Electoral Commission in connection with conducting an election. As is the case with New South Wales general elections for this Parliament, there has been an increasing centralisation of power and responsibility for the conduct of elections in the Electoral Commissioner.

Legislative changes have given the Electoral Commissioner ultimate responsibility for the conduct of elections by making returning officers responsible to the commissioner and by making the commissioner all powerful. Moreover, the duty of conducting elections has been invested solely in the electoral commissioner. The inquiry that was undertaken by the committee was generated by a provision that requires local councils to meet costs incurred by the Electoral Commission. That issue caused a great deal of controversy right across the State in both metropolitan and regional areas. Some regional councils were extremely angry at what they saw as the manner in which the Electoral Commission prepared for the 2008 local government elections and what they alleged to be cost shifting.

The outcome of this inquiry is that, in future, local government elections will be improved by better communications in the lead-up to the next round of elections and there will be a better understanding of the processes involved in calculating the costings and organising what needs to be shared among local councils. It has been suggested that already existing resources of local government might be better used by the Electoral Commission and vice versa. It is probably not generally understood that in New South Wales the conduct of a local government election is a much bigger deal for the Electoral Commission than is the conduct of a State election. As the report points out, 4,620 candidates contested the local government elections in 2008, and that is more than five times the number of candidates for the State election. Local government elections are an extraordinarily large undertaking by the Electoral Commission. Nevertheless, the issue of cost shifting was the one that generated the inquiry and led to the committee's report. Representations were made to the Government and indeed to the Opposition by bodies such as the Local Government and Shires Associations as well as individual councils throughout the State.

The terms of reference of the inquiry, although broad, highlighted that the inquiry related to the costs associated with the conduct of the 2008 local government elections. While many issues were canvassed by the committee relating to the most recent local government elections, it was the costings by the Electoral Commission that were the substance of most of the submissions. Some of the recommendations of the committee will be useful, if implemented, in making sure that the next round of local government elections are less controversial in relation to cost shifting and other matters. As other members have pointed out during this debate, one of the recommendations is that the Electoral Commission formulate a service charter for local government elections in consultation with councils and other stakeholders, and that the service charter should be modelled on Commonwealth and State Government service charters for departments and agencies that deal with the public.

A further recommendation is that the role of the regional returning officers be given further consideration by the Electoral Commission in the lead-up to the next elections and include accessibility of regional returning officers to the stakeholders, such as residents, candidates and staff of councils, who are not hosting a particular returning officer; visits to councils in outlying regions in the run-up to the election period; and more access to technology to ensure that communications are improved. The committee recommended that there be an increased advertising budget to better appraise people of upcoming local government elections and to prepare people to deal with a large-scale election, that is, local government elections.

The committee further recommended that there be an external review of the operation of the full cost recovery model to be applied in the 2012 local government elections. The committee was of the view that if the review findings indicated that it was necessary, the commission should consider the necessity for engaging consultants to conduct any subsequent external reviews of the model. Before the hearings there was quite a bit of discussion about universal postal voting. The committee recommended that the Act be amended to allow elections with universal postal voting for councils that wanted to use that election method, that provisions be put in place to enable councils to adopt universal postal voting at the next round of elections, that the Government undertake consultation on the best method for councils to use to opt into such a system if they so wished and that there be transparency between the New South Wales Electoral Commission and the general managers of respective local councils interested in universal postal voting as to the costs involved so that they are not taken by surprise if they opt for such a methodology.

Quite a bit of discussion was had about the availability and supply of ballot papers and other logistical shortcomings in some parts of the State. The committee recommended that the methodology used to calculate the projected voting figures and the allocation of ballot papers for polling booths be reviewed. Some matters highlighted in the committee's recommendations will ensure that the next elections are less controversial in terms of the cost burdens that councils felt they were shouldering unfairly in many instances and in terms of more logistical matters. I am sure the Electoral Commission will give assiduous attention to those recommendations. I agree with other speakers that the Joint Standing Committee on Electoral Matters has a positive role to play in conducting a review into the next elections so that, as with State general elections, there is an oversight body and a public forum where disaffected stakeholders can put their cases and have them examined fairly and squarely, and in order that recommendations can be made, on which the government of the day must act. This important inquiry was another example of the Legislative Council committee system responding to public demands. [Time expired.]

The Hon. MICHAEL VEITCH (Parliamentary Secretary) [3.13 p.m.], in reply: I thank honourable members for their contributions to the debate. Local government certainly evokes passion among all people. There are a number of former local government representatives in this place and in the other place; indeed, there are a number of current local government representatives in this place and in the other place. Some would say that that is good; some might say it is not so good. Local government rightly deserves to have a forum in which councils can examine what happened in a local government election, which have a large number of candidates. As the Hon. Jennifer Gardiner said, significant logistics are required to run local government elections. This report highlights a number of issues raised in the inquiry, which provided an opportunity for people to vent their concerns about the conduct of the 2008 local government elections. I commend the report to the House.

Question—That the House take note of the report—put and resolved in the affirmative.

Motion agreed to.

JOINT STANDING COMMITTEE ON THE OFFICE OF THE VALUER GENERAL

Report: Report on the Sixth General Meeting with the Valuer General

Debate resumed from 1 June 2010.

The Hon. KAYEE GRIFFIN [3.15 p.m.]: It is with pleasure that I speak on the report of the Joint Committee on the Office of the Valuer General on the Sixth General Meeting with the Valuer General. This is the second general meeting the committee has held with the Valuer General during this Parliament. General meetings are an important part of the committee's role in monitoring and reviewing the functions of the Valuer General as they provide the committee with an opportunity to obtain comprehensive information on recent developments in relation to land valuations in New South Wales and the operations of the Office of the Valuer General. The Sixth General Meeting provided the committee with an opportunity to follow-up on issues raised at the Fifth General Meeting and to consider a number of issues that had been raised by the Royal Institution of Chartered Surveyors in relation to the current tender documentation for valuation work.

A number of key issues were carried over from the Fifth General Meeting that the committee considered required monitoring and further examination, including the process of dealing with objections to land valuations, workforce capability and the training and education of valuers, the use of valuation data by various agencies for a range of purposes, and the need for a national licensing scheme. Issues surrounding the timely management of objections to land valuations have been a concern of the committee for a number of years. The committee has previously reported on improvements to the objections management system, and that has resulted in objections being processed in a more timely manner. These improvements have included the introduction of an online objection facility, better use of resources and more efficient processes, and clearing the backlog from previous years. The average time for the completion of objections has fallen from 169 days in 2006-07 to 106 in 2008-09.

A number of other factors have contributed to this improvement in turnaround times. Firstly, objections have decreased in recent years, and that indicates improvements with the valuation process at large. Secondly, the Valuer General has implemented a new system for counting the number of days that it takes for an objection to be considered to provide a more accurate measure of the number of days it takes to process an objection. Since early 2010 the first day of the objection process commences when an objection that is complete and meets all requirements is lodged. Under the previous system, the first day of the objection process commenced on the day an objection was lodged even if the objection was incomplete and further information was required before it could be processed. The committee agreed with the Valuer General that this new system provides a more accurate measure of how many days it takes to deal with an objection.

Workforce capability has been another issue of concern to the committee for a number of years. The committee recognises that there has been a clear acknowledgement from the Valuer General that strategies are required to address the current and future demand for qualified valuers. The Valuer General has pursued a number of strategies, including expanding the statewide panel of valuers that can be utilised to review objections. Since the beginning of 2009 the valuation panel has included representatives from 82 firms, compared with 71 in 2007. A tender to further expand the panel was advertised in early October 2009. The Valuer General informed the committee that this has resulted in about 20 additional panel contractors being available to review objections in 2010.

The second strategy that has been pursued is the trainee and graduate program implemented within Land and Property Information Services, which undertakes land valuations on behalf of the Valuer General. This program first commenced in November 2007. To date, 14 trainees have been recruited and a further four are planned for 2010. The Valuer General informed the committee that the program provides continuity of specialist rating and taxing valuation knowledge and will partly address the loss of experienced valuation expertise as long-term employees reach retirement over the next few years.

The Valuer General advised the committee that further initiatives are planned for 2010, including spreading the work related to objection reviews across a longer period by requiring objections to be lodged within 60 days after the issue of a valuation. Valuations are issued four times a year, and previously people were given one last day each year to lodge an objection to a valuation regardless of when the valuation had been issued. This better matching of last dates for the lodgement of objections to the dates of issue of notices of valuation should lead to earlier commencements of objection reviews and spread the peak load over a longer period. Other initiatives include utilising valuation contractor performance data that has been gathered over the last two years to support the better allocation of objection requests to those contractors most suited to their prompt and accurate resolution, and improving workload prediction tools.

An issue closely related to workforce capability is the training and education of valuers. The committee acknowledges that the Valuer General has been proactive in improving the rating and taxing component in valuation courses at universities and TAFE in New South Wales. Prior to the Sixth General Meeting the Valuer General advised the committee that, in conjunction with the Australian Property Institute, he had been involved in discussions about improving the rating and taxing aspects of accredited education courses in New South Wales. Two institutions that have improved their course content following discussions with the Valuer General are the University of Western Sydney, which has introduced an updated statutory valuation component, and the Sydney Institute of Technology, which is improving the course on statutory valuations and is considering including guest lecturers from the Office of the Valuer General or Land and Property Information as part of the course content.

The committee notes that considerable work has been done in relation to improving the rating and taxing component of valuation courses in New South Wales and commends the Valuer General for his involvement in improving course content. The committee considers that the Government could provide some assistance to the Valuer General in relation to this and has recommended that the Government actively support the Valuer General in enhancing course content, improving accreditation and gaining access to universities as required. Another issue that the committee considered needed follow-up related to the pricing regime for valuation services, particularly the use of valuation data by other agencies, some of which pay a fee for the use of this data and some of which do not.

Because the valuation system has become more accurate and consistent it is now being used by a number of agencies for purposes for which it was never intended. Such uses include assisting in the allocation of Commonwealth grants between States and Territories, in calculating rents and leases by NSW Maritime, and calculating rents on some Crown Land. The Valuer General informed the committee that he will be undertaking an independent analysis of the benefits that such agencies were receiving. This analysis should provide the Valuer General with a clear understanding of the value of the services provided to such agencies and he will then be in a position to discuss an appropriate fee for those services.

It is important to note that some agencies receive information already generated. However, other agencies such as the Commonwealth Grants Commission receive data that has been adjusted so that valuations across Australia can be compared. This service is provided free to the Commonwealth Grants Commission. The committee considers that all agencies and other users of valuation data should pay an appropriate fee to reflect the resource costs and expertise utilised to prepare these valuations and has made a recommendation to this effect.

Another issue that was followed-up by the committee at the Sixth General Meeting was the proposed national licensing scheme. A national licensing system for valuers and conveyancers is planned to commence as soon as possible after July 2013. The committee recommended in its report on the Fifth General Meeting that the New South Wales Government press for the adoption of a national licensing model similar to the full registration regime for valuers currently available in New South Wales. Given that the adoption of a national licensing system for valuers and conveyancers is a couple of years away, the committee is still of the view that the New South Wales Government should be pressing for the adoption of a national model similar to the full registration regime for valuers in New South Wales and, accordingly, has made this recommendation again.

The Sixth General Meeting also provided the committee with an opportunity to consider concerns that had been expressed by the Royal Institution of Chartered Surveyors that the current tenders for valuation work restricted the work to valuers who were members of the Australian Property Institute. The Valuer General told the committee that there is some restriction to Royal Institution of Chartered Surveyors members in relation to general valuation work, as the current contracts for statewide real estate valuation services require Australian Property Institute membership. However, the Valuer General noted that this requirement is currently being reviewed. The committee hopes that the Royal Institution of Chartered Surveyors communicates its concerns to the Valuer General so that they can be considered during the review process.

In relation to tenders for rating and taxing valuation services, the committee was informed that there is no requirement for Australian Property Institute membership, although there is a requirement for compliance with Australian Property Institute standards. The Royal Institution of Chartered Surveyors argued that because Australian Property Institute standards are comparable to Royal Institution of Chartered Surveyors standards the tender documentation for rating and taxing work should require compliance with Australian Property Institute or Royal Institution of Chartered Surveyors standards. The Valuer General does not support this view because the Australian Property Institute standards reflect the statutory and regulatory environment in New South Wales. The committee accepts the Valuer General's position and considers if the two standards are comparable that Royal Institution of Chartered Surveyors members should be able to comply with Australian Property Institute standards.

The committee appreciates the good work the Valuer General has done in recent years to improve the valuation system in New South Wales. The general meetings provide a mechanism for ensuring that the good work continues and that up-to-date information is given by the Valuer General to the oversight committee. I also thank other members of the oversight committee, particularly my colleague in this Chamber the Hon. Matthew Mason-Cox for his input and support. I commend the report to the House.

The Hon. MATTHEW MASON-COX [3.26 p.m.]: It is my pleasure to join with the Hon. Kayee Griffin to reflect on a sterling and very worthy report by the Joint Standing Committee on the Office of the Valuer General into the Sixth General Meeting with the Valuer General, which was held on 12 March 2010. As noted by the Hon. Kayee Griffin, the purpose of this meeting was to examine issues that were raised during the Fifth General Meeting with the Valuer General as part of the committee's ongoing role in monitoring the Office of the Valuer General. Indeed, I will outline a range of issues that were canvassed at the Fifth General Meeting.

The six key issues were objections management, workforce capability and the training and education of valuers, the pricing regime for valuation services, the service level agreement between the Office of the Valuer General and Land and Property Information Services, the need for a national licensing scheme and customer service surveys. I will highlight three of those key issues. First, in relation to workforce capability and the training and education of valuers, for a number of years the Valuer General has argued that it is important to ensure that there are sufficient valuers to meet current and future demands by enhancing tertiary and diploma courses with respect to rating and taxing valuation. Indeed, the Valuer General has been very active in discussions with tertiary institutions about improving the rating and taxing valuation component of accredited education courses in New South Wales.

I note the committee recommended in its Fifth General Meeting report that the Government provide assistance to the Valuer General in improving workforce capability and in gaining access to universities as required. The committee re-stated this recommendation in this report. Again we call on the Government to actively support the Valuer General in enhancing course content and improving accreditation and gaining access to universities as required. It is about time the Government took some real action in that regard. Secondly, I refer to the pricing regime for valuation services. Members would be aware that, as the primary customers of the valuation system, local government councils and the Office of State Revenue fund the valuation services in a 40:60 split. However, there are a number of secondary users of this system, to which the Hon. Kayee Griffin referred, including other State government agencies, the Commonwealth Grants Commission and private property information brokers.

The committee was concerned to understand the demand for those services and whether a fair price could be charged by the Valuer General for access to information for those services. At the moment secondary users are either not charged at all or are charged the marginal or incremental cost of providing the valuation services that they require. After some consideration, the committee recommended that the Valuer General set appropriate fees for users of valuation information and services. That certainly would vary from case to case, but during discussion it became clear that the committee was, for example, very keen to see the Commonwealth Grants Commission and other Federal bodies pay a substantial fee for the use of services provided by the New South Wales Valuer General, and over time we hope that such arrangements come to fruition.

Thirdly, I wish to deal with the national licensing scheme. In its report on the Fifth General Meeting with the Valuer General the committee recommended that the New South Wales Government press for the adoption of a national licensing model similar to the full registration regime for valuers currently available in New South Wales. I am sad to report that no change has occurred since the recommendation, although it is worth noting that a national licensing system for valuers and conveyancers is planned to commence as soon as possible after July 2013, which is still some time away. Again I call on the Government to press for the adoption of a national licensing model similar to the full registration regime for valuers in New South Wales. The Government should take real action on the committee recommendation as soon as possible to fulfil the needs of the industry in this regard.

I turn now to the issues that arose at the Sixth General Meeting with the Valuer General earlier this year. In particular, concerns were raised by the Royal Institution of Chartered Surveyors that the current tender documents restricted work to valuers who were members of the Australian Property Institute only. The Valuer General spent some time traversing this issue, as well as representatives from the Royal Institution of Chartered Surveyors, who advised the committee of the problem. The committee certainly listened to their views; however, I could not help but feel that there was perhaps a demarcation dispute of some nature in relation to this matter and that if there were better communication between the parties and clear communication in relation to the tender documentation most of the problems identified could be overcome.

Similarly, there were discussions in relation to the impact of rural wind farms on property values. I note that in August 2009 the New South Wales Government made a submission to a Legislative Council inquiry into rural wind farms, which advised that the Valuer General had engaged a consultant to undertake a preliminary study on the impact of wind farms on surrounding land values in Australia. The Valuer General advised the committee that the main finding from this study was that wind farms do not appear to have negatively affected property values. However, the Valuer General indicated that further work is required to assess the impact of wind farms on property values. To this end, the committee will pursue the issue at future general meetings with the Valuer General.

As members would be aware, I come from the beautiful town of Queanbeyan. There is a large wind farm at Bungendore, which is on farming land that may not have many alternative uses, but the impact on properties close to the wind farm is something that should be considered by Government—indeed the impact on the property on which the wind farm is constructed should also be considered. The revenue flow from wind farms is quite significant, although that is an improved capital accretion to the land and it would be worthwhile to analyse in a bit more detail the impact of wind farms in rural areas more generally.
Finally, I thank the other members of the committee for their contribution to the inquiry, in particular, the Hon. Kayee Griffin whose depth of experience brought many issues to light. I note in particular the forensic contribution of my colleague Michael Richardson, the member for Castle Hill, who will be a great loss to this Parliament when he leaves in March 2011. I wish to thank the secretariat for their assistance in the inquiry and for the production of such a stellar report, which I indeed commend to the House.

Question—That the House take note of the report—put and resolved in the affirmative.

Motion agreed to.

COMMITTEE ON THE HEALTH CARE COMPLAINTS COMMISSION

Report: Operation of the Health Care Complaints Act 1993: Final Report

Debate resumed from 3 June 2010.

The Hon. HELEN WESTWOOD [3.35 p.m.]: I am pleased to speak to the report of the Committee on the Health Care Complaints Commission, "Operation of the Health Care Complaints Act 1993". The report was tabled in both Houses on 3 June 2010. It is the seventh report of the committee in this Parliament and it is further evidence of the commitment committee members have to properly exercising their important oversight responsibilities. In the commission, New South Wales has a highly professional body, which works closely with the various registration authorities and relevant government agencies to investigate serious complaints relating to health services and health service providers under the provisions of the Health Care Complaints Act 1993. The Act expressly mandates the commission to undertake this role, protecting the health and safety of the public being its paramount concern.

As I noted in my foreword to the report, the genesis of this inquiry was the committee's disquiet that the New South Wales healthcare complaints system was overburdened by complexity, which in turn led to fractured lines of communication and avoidable errors. Having regard to this, the committee resolved to examine the operation of the Health Care Complaints Act 1993 with particular reference to: the identification and removal of any unnecessary complexities in the New South Wales healthcare complaints system; the appropriateness of the current assessment and investigative powers of the Health Care Complaints Commission; the effectiveness of information-sharing between the Health Care Complaints Commission, area health services and registration authorities in New South Wales; and report to Parliament on any matters connected with the committee's statutory functions. With respect to the key issue of communication, committee members acknowledge that effective communication is essential to the proper functioning of a first-class modern healthcare system. To quote from an editorial in the International Journal of Medical Informatics:

Communication systems are a crucial component of the information infrastructure of any health care organisation, not just as pipes through which information flows, but as the systems where humans share, discuss and eventually decide upon clinical actions.

Nonetheless, the committee did not confine itself to considering issues of communication, but has borne in mind all those suggestions from stakeholders that arose from its first call for submissions and then in supplementary submissions made in response to its discussion paper and in evidence to the committee at its public hearing. When the committee first resolved to undertake this inquiry in September 2008, the proposed national registration scheme for healthcare professionals was still in its infancy and it was on the basis of the considerable change which the scheme would entail that the committee delayed the conduct of its own inquiry. In June 2009 it was announced that New South Wales had negotiated with the other Australian jurisdictions to maintain the Health Care Complaints Commission as an integral part of a co-regulatory structure. Given this, the committee felt that it was important to highlight the issues raised in submissions received for its inquiry into the operation of the Act and, on 24 September 2009, tabled a discussion paper containing 29 issues for discussion. With respect to retaining the Health Care Complaints Commission, I am particularly pleased to note the following evidence of Mr Peter Dodd of the Public Interest Advocacy Centre at the committee's public hearing on 4 March 2010:

We also note the maintenance of the HCCC as an independent assessment and investigation and prosecution body under the national regulation scheme for health professionals ... and I acknowledge the role of this Committee in relation to getting a good outcome for the consumers of New South Wales in terms of maintaining the commission in that role.

Following the publication of its discussion paper, the committee called for another round of submissions and 22 additional submissions were received. The committee then held a public hearing on 4 March 2010 at which 17 witnesses gave evidence. While the committee does not have the remit to examine the operations of a national authority, the national scheme I mentioned earlier will undoubtedly have both immediate and long-term effects on the investigation of healthcare complaints in New South Wales. Accordingly, committee members felt that it would be a somewhat incomplete inquiry were they not cognisant of these changes at the national level, and the committee sought the evidence of witnesses as to their expectations of the likely impact of the national law in their area of expertise. I note that more recently the Health Practitioner Regulation Act 2009 and the Health Practitioner Regulation Amendment Act 2010 have established the framework for the New South Wales healthcare complaints system and that the National Registration Scheme for Health Practitioners started on 1 July 2010.

I turn now to some of the key issues in the committee's report. As I noted in the House on 17 March 2010, the committee concluded that the optimal way to ensure the protection of the health and safety of the public in New South Wales is a healthcare complaints system governed by the following principles: accountability, transparency, fairness, effectiveness, efficiency and flexibility. In its report, the committee recognises that these principles are not always in harmony; rather they are, at times, competing aims which need to be held in an appropriate balance. Thus the theme of achieving this balance underlaid the committee's deliberations throughout the inquiry process. Indeed, it was suggested to the committee that the very success of the New South Wales co-regulatory system in balancing competing interests was a key reason for widespread support for retaining the commission in any national scheme. In this regard, I quote the evidence of Leanne O'Shannessy, Director, Legal and Legislation, of the NSW Department of Health:

I note that section 3A of the Health Care Complaints Act provides an outline of the commission's role in relation to government agencies with functions connected with the healthcare system. However, section 3A (6) of the Act provides that section 3 is explanatory only and does not affect any other provision in this or any other Act, or any instrument made under this or any other Act. Accordingly, committee members considered that amending section 3A of the Act to include the principles that I noted earlier would send a powerful message to the relevant government agencies, practitioners and healthcare consumers about the principles governing the healthcare complaints system in New South Wales and recommended that the amendment be made.

A number of submissions to the inquiry referred to the need for better liaison between officers of the commission and practitioners. It was suggested that some of the problems associated with the healthcare complaints system—as well as the perception of those problems within the wider community—stem from a lack of adequate communication about how the system and the processes work. In its supplementary submission to the inquiry, the commission noted that it had already "extensively reviewed" its process for advising practitioners that their conduct is under investigation, and that it provides detailed information on its website about its investigative processes. The committee accepts that there has been considerable improvement in the commission's communication with practitioners who are the subject of complaints. That being said, the committee is of the view that it is important that the commission keep itself informed of any failures in this regard, particularly if doing so may expose any pattern of communication breakdown, whether it be, for example, by profession or locality.

Accordingly, the committee considers it is vital for the commission to be constantly monitoring the timeliness and efficiency of its communication with practitioners. To this end, the committee's report recommends that the Health Care Complaints Commission continue to monitor the effectiveness of its communication with persons who are the subject of complaint, seeking the input of agencies such as registration authorities, the area health services, the Department of Health and Avant.

In its 2009 discussion paper, the committee noted that concerns with respect to smaller registration authorities arise from the potential for both practitioners and healthcare consumers to suffer from a lack of accountability, transparency and efficiency. The committee considered that one means of overcoming this would be for effective oversight of those bodies by a parliamentary committee. Initially it was thought that this might be achieved either by the establishment of a new committee or by ensuring that the annual report of each registration board is examined by the Public Bodies Review Committee However, in supplementary submissions—and in evidence at the public hearing—it became apparent that stakeholders preferred that the committee itself be given oversight responsibility for all registration authorities, or health professional councils as they have become. It was the opinion of Avant that:

... public scrutiny of the functions and operation of the co-regulatory system, through open hearings of the Parliamentary Committee, is an important aspect of open, responsible and accountable Government, and provides an appropriate mechanism for change.

For its part, the commission proposed that, as New South Wales will continue to have a co-regulatory model, the appropriate course would be to expand the remit of the committee so that the committee can also review the exercise of the functions of the health professional councils. Having given careful consideration to this important issue the committee recommends that its remit be expanded to monitoring and reviewing the exercise of the functions of the New South Wales health professional councils. In conclusion, I quote again from the foreword to the committee's report:

Balance has … characterised the approach which the Committee has consistently taken in weighing up evidence and drafting its responses in the preparation of this Report; and it will continue to characterise the manner in which the Committee exercises its oversight functions under Part 4 of the Health Care Complaints Act.

I have brought to members' attention a number of important issues covered in the committee's report. However, I urge members to familiarise themselves with what is a thorough report with strong, evidence-based recommendations. I thank particularly the committee secretariat, Mr Mel Keenan, who has been seconded to another position, and Mr Jonathan Elliott, who is now fulfilling the role of committee manager, and of course all the staff of the secretariat who are very competent and do a great job resourcing committee members. I particularly thank the other members of the committee: the Deputy Chair and member for Hornsby, Ms Judy Hopwood, Reverend the Hon. Fred Nile, the Hon. David Clarke, Mr Kerry Hickey, the member for Cessnock, Mr Matt Brown, the member for Kiama, and Mr Nathan Rees, the member for Toongabbie.

I thank the commission and all those organisations and professional bodies that were willing to make submissions to the committee and who were willing also to attend hearings and to give evidence. If they had not been willing to do so it would have made our job much more difficult. All those organisations worked with the committee and with the commission, which resulted in a sound report that makes important recommendations. I commend that report to the House.

Reverend the Hon. FRED NILE [3.50 p.m.]: I am pleased to speak in the take-note debate on report No. 7/54 of the Committee on the Health Care Complaints Commission dated June 2010 entitled "Operation of the Health Care Complaints Act 1993." The Hon. Helen Westwood, Chair of the committee, gave us an informative and effective background briefing relating to that report, which I support. One issue that the committee dealt with during its inquiries and its public hearings related to the induction of a national registration and accreditation scheme for the health professions. Initially, when that scheme was announced, it was thought that it would lead to a disbanding of the New South Wales Health Care Complaints Commission. The committee believed it was important to retain that State body as all the evidence indicated that it was the most effective commission not only in New South Wales but also in Australia and that if it were replaced by a national scheme we would be going backwards.

A lot of debate went on behind the scenes relating to that matter. However, as a result of the efforts of Minister John Della Bosca, the then Minister for Health, the Government succeeded in getting other States and various jurisdictions to agree to let New South Wales maintain its Health Care Complaints Commission as an integral part of this co-regulatory structure—one of this committee's great achievements. Obviously I was pleased to be able to support that proposal in every way. If our Health Care Complaints Commission had been disbanded we certainly would have been going backwards. I believe that our system is working like a well oiled machine—a system that cares about people and that is much more effective than it was in its early years.

Committee members will recall events involving former practitioner Graeme Reeves and the terrible things he did to a number of female patients. When complaints were made by a number of women there was a lack of response from the Health Care Complaints Commission and it did not deal promptly with those complaints. However, because of the way in which the commission is now structured, and because of the committee's recommendations, that will never happen again. The committee conducted an interesting hearing into the operations of the Health Care Complaints Act 1993. Warren Henry Anderson, one of the witnesses that we were pleased was able to give evidence at our committee hearings, has been active in representing consumers. Members would be aware of the tragic case relating to his daughter, Vanessa Anderson, who was hit by a golf ball and who tragically died.

Warren Anderson was angry about what appeared to be a breakdown in the care of his daughter at Royal North Shore Hospital. He gave evidence to our committee and also at another committee inquiry into the Royal North Shore Hospital that I chaired. Anyone attempting to bring a case to the notice of the public with a view to improving the system who believes that he or she is being blocked certainly will be frustrated. I believe Warren Anderson was greatly helped by the committee as a result of his appearance before it when it conducted its public hearings. A great deal of correspondence that he had received was also included in evidence. The committee dealt with a number of matters, some of which were referred to earlier by the Hon. Helen Westwood. She referred to 11 important recommendations that were adopted by the committee and that are now being considered by the Government. Some of those recommendations involve further legislation and amendments to that legislation. Recommendation 4 states:

Health Care Complaints Act 1993

That important recommendation means that the commission would not have to wait; it could act on its own motion or on its own authority to initiate investigations. I believe that is what we, as members of Parliament, expect of the commission. Most members probably would have been surprised to find that the commission did not have that power. The committee recommended that it be given such authority. Recommendation 6 states:

Health Care Complaints Act 1993

Recommendation 7 is as follows:

Health Care Complaints Act 1993

Those recommendations are all important. Recommendation 9 states:

Health Care Complaints Act 1993

The Commission must give notice of the making of a complaint to the current employer of the person against whom the complaint has been made if the Commission considers on reasonable grounds that the giving of the notice is necessary to investigate the matter effectively or it is otherwise in the public interest to do so.

The commission must be able to act once it has received a complaint and it becomes aware of a serious problem. If it does not have such authority it cannot give notice to current employers relating to employees. Obviously employers can then take some action relating to employees—either to suspend them or to remove them from an area in which they have been engaged if there is some question about their action in carrying out their role. Finally, recommendation 11 states:

Health Care Commission Act 1993

These recommendations will ensure that there is no breakdown in communication and no loopholes in this important area of the health and safety of the people of New South Wales. I am pleased to support the report and commend it to the House.

Question—That the House take note of the report—put and resolved in the affirmative.

Motion agreed to.

STANDING COMMITTEE ON LAW AND JUSTICE

Report: Spent Convictions for Juvenile Offenders

Debate resumed from 31 August 2010.

The Hon. CHRISTINE ROBERTSON [4.00 p.m.]: I am pleased to commence debate on the forty-second report of the Standing Committee on Law and Justice, entitled "Spent Convictions for Juvenile Offenders". The report was tabled on 6 July 2010. All committee members know that most of the committee's reports have been released in the past four years.

Pursuant to standing orders business interrupted and set down as an order of the day for a future day.

Pursuant to sessional orders debate on the budget estimates proceeded with.

BUDGET ESTIMATES AND RELATED PAPERS

Financial Year 2010-2011

Debate called on, and adjourned on motion by the Hon. Don Harwin.

PROTECTED DISCLOSURES AMENDMENT (PUBLIC INTEREST DISCLOSURES) BILL 2010

Second Reading

Debate resumed from an earlier hour.

The Hon. MARIE FICARRA [4.01 p.m.]: In my mind and in the minds of thousands of others, any maladministration should be reported, and those who have the courage to do so should receive full protection. This aspect of the legislation needs to be amended to prevent reprisals against courageous whistleblowers. The council general manager who was the subject of my complaint appointed a person to investigate the matter. That investigator never contacted me to discuss my complaint or to seek any clarification or further evidence. Last week I received an email from the council's internal ombudsman advising that, apart from being dismissed as a protected disclosure, my complaint was dismissed due to lack of evidence. The incidents that I reported were sound recorded, but it appears that the investigator failed to listen to the council's recordings. I believe the investigator has failed to properly perform the role as an investigator or has acted at the behest of others to ensure a particular outcome.

I wrote to the council's internal ombudsman asking for reasons for the decision, to which I am entitled pursuant to administrative law and procedural fairness requirements. He responded, advising that I had to write to the investigator. To date, I have not received a reply from the investigator. This demonstrates to me not just maladministration, but the hoops and deliberate obstruction that whistleblowers face in order to receive justice, which is often denied. This saga highlights to me that protected disclosures should not be investigated by a person appointed by the very person complained about. Wide-ranging reform is needed as to how protected disclosures are investigated and who investigates them. New procedures should be implemented to ensure that protected disclosures are investigated only by the Independent Commission Against Corruption, the NSW Ombudsman or an investigator approved by those bodies, with the proper qualifications and investigative and administrative law experience to investigate such serious matters.

An issue raised with me by union representatives and public officials is that a clear process is not outlined anywhere as to how a person who has submitted a protected disclosure and is subject to reprisals can commence proceedings to remedy those reprisals. I have been unable to find a policy document or procedure on how this is done. A clear and concise procedure needs to be articulated so that all those courageous whistleblowers know the avenues and representation in this regard. I sincerely hope that the Government takes into consideration the issues I have raised, which reflect the concerns of many whistleblowers who have come to me. Reform is desperately needed to ensure that ethical standards amongst public officials are upheld and that whistleblowers are not subject to some of the disgraceful behaviour we have witnessed, and continue to witness, in this State.

The Hon. TREVOR KHAN [4.05 p.m.]: In speaking to the Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010, it is worth referring to the old saying that goes along the lines of, "Success has many fathers and failure is an orphan." The bill is a success of sorts and has many fathers, but it also has at least one mother. This bill owes much of its existence to the situation surrounding what could best be described as the persecution of Gillian Sneddon and the robust representations on her behalf by Hon. Robyn Parker, who relentlessly pursued the failure of the State Labor Government to protect the interests of Ms Sneddon, who was so poorly treated following her assistance to the police in respect of the former Minister for Aboriginal Affairs in New South Wales, Milton Orkopoulos.

If it were not for the robust and continuous representations made by the Hon. Robyn Parker on behalf of Gillian Sneddon, no doubt the New South Wales Labor Party would have been able to sweep the matter under the carpet and this legislation would never have seen the light of day. If it were not for people such as the Hon. Robyn Parker, who was prepared to take up the cudgels on behalf of someone like Ms Gillian Sneddon, the citizens of New South Wales would be poorly represented. In many ways, the Hon. Robyn Parker is a true soldier in the interests of the people of New South Wales. She is an admirable and moral person, who seeks to put the interests of the citizens of New South Wales well and truly above her own.

The report of the Committee on the Independent Commission Against Corruption entitled "Protection of Public Sector Whistleblower Employees" shows that, as well as the constant efforts by the Hon. Robyn Parker to press forward with this matter, a number of attempts were made in this place to force an inquiry into the case of Ms Gillian Sneddon and other whistleblowers who needed greater protection. In June 2008 a series of motions were moved seeking to have the matter referred for inquiry. The motions were moved by me, but only following constant and repeated representations and pressure applied by the Hon. Robyn Parker in her efforts to assist a resident of the Hunter Valley. My attempts were constantly frustrated by Government members, who, at every turn, used procedural motions and various technicalities to stop the matter being referred for inquiry. It is fair and reasonable to say that, through the involvement of Reverend the Hon. Fred Nile, the motion was amended and the matter was referred for consideration by the Committee on the Independent Commission Against Corruption.

At that time, I believe—and I do not think there is any doubt about it, judging by the speeches that have been made both in this House and in the other place—that the expectation when the matter was referred to the Committee on the Independent Commission Against Corruption was that there would be ample opportunity to look closely at the matter of Gillian Sneddon and the manner in which she was treated by the Australian Labor Party as well as by individual members of the Government. Sadly, we saw repeated efforts—which in the end were successful based on the numbers—to frustrate the provision of any opportunity for individual whistleblowers to appear before the committee to explain what had happened to them in their dealings with the State Labor Government.

I will take the time to refer to the minutes of various deliberative meetings that occurred along the way during the committee process. From the minutes, one will see the mechanism by which various members of the committee frustrated the implementation of a full and proper inquiry. For example, the minutes of proceedings of the committee for 29 September 2008 show at point four on pages 206 to 207 that at that meeting a very lengthy motion was proposed by the chair of the committee seeking to identify agencies et cetera that would be called to give evidence before the committee and persons who would not be called. That approach was different from so many other committees. This was not a spontaneous action; it was plain that it was well planned and designed to limit as much as possible any embarrassment to the New South Wales branch of the Labor Party.

One can see that the chair, the member for Maitland, Frank Terenzini, proposed to call a whole series of government agencies but not to call various whistleblowers who had been harmed. Among those who had been harmed but who would not be called were such people as Gillian Sneddon and Ben Blackburn, who had received great support from the Hon. Robyn Parker. It was plain that the member for Maitland, as chair of the committee, was doing all he could to frustrate the possibility of those people being called to give evidence. At the bottom of page 207, the minutes show that when members sought to call Gillian Sneddon, who had made a very relevant submission, a vote was taken on whether she should give evidence. A division occurred, and what do we find? Messrs Khan, O'Dea, Smith and Stokes sought to call Gillian Sneddon and Mr Ivan Patrick, but Ms Beamer and Messrs Donnelly, Harris, Khoshaba and Terenzini—all the Labor members—voted as a bloc to prevent that from occurring. The vote was tied, so what did we then see? We see that the member for Maitland, as chair of the committee, used his casting vote to prevent Ms Sneddon from being called to give evidence.

The minutes of the 28 September 2008 meeting also show that a motion was moved that individuals who made submissions to the inquiry should be called to give evidence. I moved that motion and it was seconded by Mr O'Dea. The committee divided on the motion. Again, Reverend the Hon. Fred Nile and Messrs Khan, O'Dea, Stokes and Smith voted in favour of the motion, but the Labor members of the committee voted against it. The member for Maitland—who no doubt was doing the bidding of his masters—again used his casting vote to frustrate the committee's desire to give individuals the opportunity to be called to give evidence.

The Hon. Robyn Parker: Shabby behaviour!

The Hon. TREVOR KHAN: As the Hon. Robyn Parker rightly says in this Chamber, that is just shabby behaviour. It is worth noting that when the list of people to give evidence before the committee was drawn up, half of them had not put in a submission. Gillian Sneddon, Ben Blackburn and various other whistleblowers who had put in submissions pursuant to the invitation were not called, but a whole group of government agencies that had not bothered to make a submission were included on a list of witnesses that was drawn up by the member for Maitland, and were called—notwithstanding their complete silence in relation to the matter.

DEPUTY-PRESIDENT (The Hon. Christine Robertson): Order! I ask the Hon. Trevor Khan whether the document he is referring to is a public document or an internal document of the committee?

The Hon. TREVOR KHAN: It is part of the motion on page 206 of the committee minutes. It is in the minutes; I am referring only to the minutes.

DEPUTY-PRESIDENT (The Hon. Christine Robertson): I thank the Hon. Trevor Khan for that.

The Hon. TREVOR KHAN: Thank you very much. That sent my heart aflutter. I ask the House to note that it was not just at one meeting that that approach was used by the member for Maitland and the other Labor members of the committee to frustrate the committee in its desire to conduct a full and fair inquiry. At a further meeting, lengthy motions were again put by the chair. For example, requests were made by motion to delay consideration of those lengthy motions until committee members had seen legal advice that apparently had been received by the secretariat and seen by the chair, and had been used to limit the scope of the inquiry. One would have thought the Committee on the Independent Commission Against Corruption, comprising a number of legally qualified people—including the chair, who is a former Crown prosecutor; the shadow Attorney General, Mr Greg Smith, who we all know is a former Deputy Director of Public Prosecutions; Mr Rob Stokes whom we know has a PhD; and, perish the thought, a mere country lawyer, me—would be entitled to see the legal advice that the member for Maitland was using to frustrate the conduct of a full and robust inquiry. But what did we see? Again, the member for Maitland used Labor's numbers on the committee to frustrate the opportunity for other members even to see the advice. It was a shameless and scurrilous attempt to shut down the inquiry, and it was a shameless and scurrilous attempt to prevent whistleblowers such as Gillian Sneddon from giving evidence before the inquiry.

We all have to accept that parliamentary inquiries achieve a number of things. They give us an opportunity to gather evidence. They enable us to obtain a full and reasonable interpretation of what is going on. Labor members of the committee wished us to gain an understanding of the deficiencies of the Protected Disclosures Act by speaking only to government agencies. That is rather similar to determining how effective is the jail system in New South Wales by speaking only to the jailers, not the prisoners. Based on how Labor wanted to run the inquiry, we were getting a one-sided approach. Through the minutes of the various meetings that took place, it is obvious that Labor consistently used its numbers to frustrate any attempt to call Gillian Sneddon, Ben Blackburn and other whistleblowers who had been harmed by the limited scope of the legislation applying at that time. In my respectful submission, that is a shameful use of a committee and of the numbers by the Labor Party to prevent people from having the opportunity to explain what had happened to them.

In light of the Hon. Penny Sharpe's comments about how well the Labor Party has done in terms of bringing this legislation forth, it is worth noting that not only was this inquiry a consequence of robust efforts by the likes of the Hon. Robyn Parker, but it was also set against a background in which the protected disclosures legislation had previously been the subject of consideration by the Independent Commission Against Corruption committee. A report from November 2006 highlighted the deficiencies of the legislation. The sad part of this whole exercise is that, in many ways, this 244-page report mirrors the recommendations contained in the November 2006 report. The submissions and evidence given to the committee by the Leader of the Opposition, Mr Barry O'Farrell, were similar to the evidence and submissions he made to the Independent Commission Against Corruption committee previously, which were adopted, in part, in the November 2006 report.

For years the New South Wales Liberal-Nationals had been calling for amendments to the protected disclosures legislation; it was obvious to all that there were deficiencies. However, this State Labor Government, under various Premiers, ignored the previous recommendations and evidence, and it ignored what had happened to the likes of Gillian Sneddon until it was dragged, kicking and screaming, to establish an inquiry and a further report was made. In my submission, it is shameful that it has taken until the absolute dying days of this Government for something to be done to improve this legislation. Indeed, it is sad that this legislation is before the House because Gillian Sneddon failed to receive proper protection and the warm embrace of a party she once loved; instead, she was essentially thrown on the scrap heap because she dared to go to the police, to be concerned for other individuals and to tell the truth. This legislation should not be called the Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010; it should be called Gillian Sneddon's law.

The Hon. PENNY SHARPE (Parliamentary Secretary) [4.22 p.m.], in reply: I thank honourable members for their contributions to this debate. The purpose of the Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 is to implement all the major recommendations of the parliamentary Committee on the Independent Commission Against Corruption in its report entitled "Protection of Public Sector Whistleblower Employees". The bill was amended in the other place and contains provisions that were requested by the Speaker or the Clerk of the Legislative Assembly. In particular, the bill contains a provision requested by the Speaker in relation to the Ombudsman's powers. As recommended by the Independent Commission Against Corruption committee, the bill confers on the Ombudsman new oversight functions, including auditing the exercise of functions by public authorities under, and in compliance with, the Protected Disclosures Act. For the purpose of these audits, the bill gives the Ombudsman the power to require public authorities to produce information or documents.

The Ombudsman, however, will not have powers of compulsion in respect of parliamentary administration. This was requested by the Speaker in order to protect the principle of independence of the parliamentary administration. This is consistent with the general exclusion of Parliament from the Ombudsman's jurisdiction. The Parliament will, of course, have the discretion to provide information to the Ombudsman when it may assist him to perform his auditing functions under the legislation. As recommended by the Independent Commission Against Corruption committee, the bill also provides that members of Parliament are public officials about whom a protected disclosure can be made. The committee, however, did not recommend that members of Parliament should be able to make protected disclosures themselves. In light of this, the bill contains a provision requested by the Clerk of the Legislative Assembly that clarifies that members of Parliament do not fall within the definition of "public officials" who can make a protected disclosure. The rights of members of Parliament to complain to the Independent Commission Against Corruption and other watchdog bodies in the usual way about public sector misconduct are unaffected by the bill.

The bill also contains provisions requested by the Clerk in relation to disclosures by parliamentary staff, including electorate office staff. Under the Protected Disclosures Act, protected disclosures may be made to the principal officer of a public authority. The bill clarifies that each of the three parliamentary departments is a public authority within the meaning of the Act. The bill also provides that the Speaker, the President, the relevant Clerk and the Executive Manager of the Department of Parliamentary Services are principal officers to whom protected disclosures may be made. In effect, the bill ensures that parliamentary and electorate office staff can make protected disclosures about members of Parliament or other staff in the parliamentary administration to the Clerks, the Executive Manager, the Speaker or the President. These amendments will assist employees of the Parliament to make protected disclosures in the most administratively convenient way.

I will respond to two issues raised during the debate. The Hon. Matthew Mason-Cox asked whether all the recommendations of the parliamentary committee are being implemented. As I said, the bill implements all the major recommendations. Only a few minor procedural recommendations have not been supported by the Government. For example, the committee recommended that the Ombudsman publish in his new audit reports a report by the steering committee on its activities and any recommendations it made during the period covered by the audit report. Following consultation with the Ombudsman, the bill does not implement this recommendation directly. Instead, as suggested by the Ombudsman, the bill requires the Ombudsman, as chair of the steering committee, to provide an annual report on the activities and recommendations of the committee. The bill requires the annual report to be provided to the Premier in her capacity as the responsible Minister. As the responsible Minister, the Premier is required to table the annual report in Parliament.

It appears that the parliamentary Committee on the Independent Commission Against Corruption recommended that the steering committee's reports be included in the Ombudsman's audit reports to ensure that there is regular publication of the steering committee's activities and recommendations. The approach taken in the bill is consistent with that recommendation. Dr John Kaye asked why the penalty was being doubled. The simple response is that that is what the committee recommended. New South Wales has had comprehensive legislation in place to protect whistleblowers for many years. The bill will ensure that the protected disclosures regime in New South Wales remains effective now, and paves the way for further considered reforms in the future. I commend the bill to the House.

Question—That this bill be now read a second time—put and resolved in the affirmative.

Motion agreed to.

Bill read a second time.

Leave granted to proceed to the third reading of the bill forthwith.

Third Reading

Motion by the Hon. Penny Sharpe agreed to:

That this bill be now read a third time.

Bill read a third time and returned to the Legislative Assembly without amendment.

BUSINESS OF THE HOUSE

Postponement of Business

Government Business Orders of the Day Nos 4 to 7 postponed on motion by the Hon. Penny Sharpe.

COURTS AND CRIMES LEGISLATION AMENDMENT BILL 2010

Second Reading

Debate resumed from 20 October 2010.

The Hon. DAVID CLARKE [4.30 p.m.]: The Opposition does not oppose the Courts and Crimes Legislation Amendment Bill 2010, the purpose of which is to make amendments to some five Acts that relate to courts and crime-related matters. The first Act to be amended is the Child Protection (Offenders Registration) Act 2010 for the purpose of making new Commonwealth offences relating to child sex tourism registrable offences under that Act. Specifically the bill amends the definition of a class 1 offence and a class 2 offence to reflect the transferral from the Commonwealth's Crimes Act 1914 to the Criminal Code of the Commonwealth of provisions relating to offences involving child sex tourism. The amendments also insert into the Act new sex offences dealt with by the Criminal Code of the Commonwealth as a consequence of which reporting obligations provided for by the Act will apply to a person sentenced in respect of such an offence. Henceforth offenders convicted of Commonwealth child sex tourism offences are registrable under the Child Protection Register of New South Wales.

The bill amends the Criminal Procedure Act 1986 for the purpose of extending the circumstances in which an alleged victim of an offence involving violence is not required to attend committal hearings. The definition of "offence involving violence" is extended so that it includes an offence the elements of which include the commission of or intention to commit any offence that is already defined as an offence involving violence. As a consequence, an alleged victim of such an offence will not be required to attend a committal hearing unless the court is satisfied that there are special reasons why the alleged victim should attend to give oral evidence. The Attorney General states that the practical effect of offences being included in the definition is that it allows magistrates the discretion not to direct the attendance of the alleged victims at committal hearings unless there are special reasons.

The Attorney General has advised that the Office of the Director of Public Prosecutions has requested that the offences of aggravated break and enter, and commit serious indictable offence, contained in section 112 (2) of the Crimes Act 1900, be included in the definition of "offence involving violence" under section 94 of the Criminal Procedure Act 1986. The Attorney General informs us that the advice given to him is that it is often the case that the serious indictable offence contained in section 112 (2) of the Crimes Act 1900 is robbery or reckless wounding—offences that, on their own, involve violence as defined by section 94 of the Criminal Procedure Act 1986.

The Attorney General advises that if the activity is prosecuted under section 112, notwithstanding the violence involved, a problem arises as the activity falls outside the existing definition and victims of section 112 (2) offences receive less protection in relation to attending to give oral evidence at committals than do other victims of violence. Possibly an offence involving a combination of elements may equally not be adequately covered by the section 94 definition. Consequently, section 94 is amended to provide that an offence the elements of which include the commission of, or an intention to commit an offence under paragraphs section 94 (a) to (f), is an offence involving violence for the purposes of sections 91 and 93.

The third piece of legislation amended by the bill is the District Court Act 1973, and that is for the purpose of providing that a person who is or has been an associate judge of the Supreme Court of New South Wales may be appointed as an acting judge of the District Court even if that person has reached the age of 72 years, but only if the age of 75 years has not yet been reached. This amends the present situation where a current or retired associate judge of the Supreme Court is precluded from being appointed as an acting judge of the District Court.

The fourth piece of legislation to be amended by the bill is the Solicitor General Act 1969, for the purpose of ensuring that the Attorney General may delegate his or her power to intervene in proceedings to the Solicitor General, regardless of whether the power is conferred on the Attorney General in his or her capacity as Attorney General or as a Minister administering an Act. Currently under the Act the Attorney General can delegate the Attorney General's powers and functions to the Solicitor General but, according to advice received by the Attorney General, this delegation is limited to the delegation of powers and functions that the Attorney General has in his capacity as Attorney General, and not to the power to intervene in proceedings before a court or tribunal where an Act confers this power on the Minister responsible for that particular Act, and the Attorney General is the Minister responsible for that Act. The Solicitor General Act 1969 will be amended to ensure that the Attorney General may delegate his or her power to intervene in proceedings to the Solicitor General, regardless of whether the power is conferred on the Attorney General in his or her capacity as Attorney General or as a Minister administering an Act.

The final purpose of the Courts and Crimes Legislation Amendment Bill 2010 is to amend the Trustee Act 1925 to allow the regulations made under that Act to prescribe a class of insurers that may insure the repayment of a loan to a trustee for the purposes of that Act. This amendment will clarify that it is not necessary to prescribe an individual insurer for the purposes of a definition of "prescribed insurer" in the Trustee Act 1925 but rather a class of insurers can be prescribed. A prescribed insurer is an insurer who can insure a loan repayment to a trustee under the provisions of the Act that specify the maximum ratio of the amount of the loan to the value of the property that secures the loan.

In summary, this bill should assist in the better working of our criminal law code and the New South Wales court system. Amongst other things it will ensure that offenders convicted of Commonwealth child sex tourism offences are registrable under the New South Wales Child Protection Register. It will permit the use of retired or ex-associate Supreme Court justices on the District Court bench and it will assist the Office of the Director of Public Prosecutions in its prosecutions and achieve consistency for victims of crime. As I indicated earlier, the Opposition does not oppose the bill.

Reverend the Hon. Dr GORDON MOYES [4.36 p.m.]: I will not speak for any lengthy period to the Courts and Crimes Legislation Amendment Bill 2010 because the amendments, while important, are basically minor in nature. However, as the parliamentary leader of the Family First Party, I am interested to discuss an amendment that relates to the Child Protection (Offenders Registration) Act 2000, the intention of which is to make new Commonwealth offences relating to child sex tourism registrable offences under that Act. The other issues have been adequately covered by the Hon. David Clarke. The object of the bill is to amend the Child Protection (Offenders Registration) Act 2000 whereby the Act will include offences such as sexual intercourse with a child outside of Australia and other offences relating to preparing or planning these primary offences. This will ensure that child sex offenders do not escape the Child Protection Register because of changes to Commonwealth legislation where some offences have been shifted between various parts of the legislation.

Sex offender registration systems operate in Canada, United Kingdom, the United States of America and Australia. They are designed to allow government authorities to keep track of the residence and activities of sex offenders, including those who have completed their criminal sentences, and to protect and alert the public about the dangers of sex offenders particularly in relation to sexual offences against children. In some jurisdictions, especially in the United States, information in the registry is made available to the general public via a website or other means. In many jurisdictions registered sex offenders are subject to additional restrictions, including restrictions related to their being in the presence of minors, living in proximity to a school or day care centre, owning toys or other items of interest to minors, or using the Internet to groom children.

The shape, coverage and maintenance of registers reflects the range of Australian and overseas regimes with regard to offences that encompass penetration, the grooming of minors, the possession of child pornography and consensual activity by people under the age of 21; different compliance periods, information provision requirements and penalties; and different access conditions in theory and practice. For example, police and other officials in some jurisdictions have discretionary authorisation to release information from non-public databases.

Australian constitutional arrangements mean that the different States, Territories and national governments each maintain offender registers, although this sort of bill represents a step towards creating some standardisation across the nation, consistency and greater information sharing. This is tremendously important in days when many offenders will move from State to State, hoping that they will then escape detection and allowing them to continue in their particular behavioural patterns. In Australia, regimes involve non-public registers that have evolved from existing criminal conviction or other databases and contain a range of information, such as the offender's name, residential address, employment address, car registration and fingerprints, and the nature of offence. At the Federal level, a national sex offender system is centred on the CrimTrac agency, which is the custodian of the national fingerprint and DNA databases and inheritor of the Federal sex offender registers developed by the Australian Bureau of Criminal Intelligence and the Australian Federal Police over the years 1995 to 1997.

The system encompasses sharing of information across State and Territory borders and features the Australian National Child Offender Register. In 2002 the then Federal Minister for Justice and Customs, Senator Ellison, called on all governments to establish sex offender registers with consistent legislation. That information would extend existing Federal data. State and territory governments will remain responsible for monitoring movement of individual offenders within their jurisdiction. Sharing via CrimTrac will assist surveillance of offenders who move interstate and facilitate assistance being provided to overseas agencies. It was envisaged that the registration system would be vetted by the Federal and State privacy commissioners and be underpinned by passage of consistent legislation in each jurisdiction, addressing, for example, suggestions that the national register should include both suspected and convicted child sex offenders.

Enhancement of information-sharing arrangements and legislation over 2004-05 saw the establishment of registers in New South Wales, Queensland, Victoria, Western Australia and the Northern Territory. It was reflected in an announcement in mid-2005 that details of intended overseas travel by convicted paedophiles had been provided to the Thai and Indonesian governments, which refused entry of those individuals. CrimTrac more broadly provides information to accredited entities under the national criminal history record checking program. Those entities include the Australian police forces, national government agencies such as the Australian Customs Service, Australia Post, the Australian Taxation Office, the Australian Sports Commission, the Child Support Agency, and State and Territory agencies such as the New South Wales Department of Health, the New South Wales Ministry of Transport, the Victorian Institute of Teaching, the Victorian Department of Justice and so on, and a limited number of non-government bodies that are largely involved in child care, such as Anglicare, the Uniting Church in Australia, the Monash Volunteer Resource Centre and the Victorian YMCA.

The model State and Territory register of child sex offenders—the New South Wales Child Protection Register—was established under Child Protection (Offenders Registration) Act 2000. The New South Wales legislation was strengthened in December 2007 with, for example, a requirement that anyone on the register provides a DNA sample to the police. The New South Wales legislation that we are discussing will be strengthened to a greater degree with the introduction of this amendment whereby child sex tourism offences and those related offences will ensure that child sex offenders do not escape the child protection register because of changes to the Commonwealth legislation. I am quite sure that this bill will be supported by all members and I commend it to the House.

The Hon. LUKE FOLEY [4.44 p.m.]: I support the Courts and Crimes Legislation Amendment Bill 2010. I would like to address a number of the miscellaneous provisions that the proposed legislation covers. First, I will discuss why the Child Protection (Offenders Registration) Act 2000 is being amended. The Commonwealth Government has recently repealed its child sex tourism offences that were contained in the Commonwealth Crimes Act 1914 and placed them in the Commonwealth Criminal Code. The amendments to the Child Protection (Offenders Registration) Act 2000 update this Act with the new provisions. These changes will ensure that offenders convicted of these offences are registrable on the New South Wales Child Protection Register.

Second, I will look at why the Criminal Procedure Act 1986 is being amended. The Office of the Director of Public Prosecutions wrote to the Attorney General regarding the offences covered by the section 94 definition of "offence involving violence". The Office of the Director of Public Prosecutions advised that the existing definition excluded aggravated break and enter and commit serious indictable offence matters. The Office of the Director of Public Prosecutions advised that it is often the case that the serious indictable offence in these matters is robbery or reckless wounding. On their own, robbery and reckless wounding are defined as offences involving violence under section 94. If, however, the activity is prosecuted under section 112, notwithstanding the violence involved, it falls outside the existing definition. The result of this is that victims of aggravated break and enter and commit serious indictable offence matters are afforded less protection in relation to attending to give oral evidence at committals than are other victims of violence. The amendment will address this anomaly and provide more protection to victims of violence, and promote consistency in this area.

The amendments to the District Court Act 1973 also deserve further explanation. Currently the District Court Act 1973 provides for a retired judge of the Supreme Court, who is more than 72 years but not more than 75 years of age, to be appointed to act on the District Court bench. However, the statutory definition of a judge under the Supreme Court Act 1970 precludes a retired associate judge of the Supreme Court who is likewise between 72 and 75 years of age from being appointed to act in the District Court because an associate judge is not deemed to be a judge. The amendment contained in schedule 3 will specifically provide for a current or retired associate judge of the Supreme Court, who is more than 72 years but not more than 75 years of age, to be appointed to act on the District Court bench.

Finally, I will further explain the amendments to the Solicitor General Act 1969. The Solicitor General's office was established in New South Wales in 1824. The Solicitor General Act 1969 provides that the Governor may appoint a legal practitioner of at least seven years standing to be Solicitor General. It also provides that the Solicitor General shall not be a Minister of the Crown and that he or she may "act as Counsel for Her Majesty" and perform such other duties and functions of Counsel as the Attorney General directs. The Solicitor General Act 1969 also provides that the Solicitor General may exercise the powers and functions of the Attorney General when the office of Attorney General is vacant or the Attorney General is not in the State or is unable to exercise his powers because of illness. The Act also provides that the Solicitor General exercises the powers delegated to him or her by the Attorney General under the Act.

In New South Wales the main role of the Solicitor General is to appear on behalf of the State Government in judicial proceedings and to provide written and oral advice to the Government on legal matters. However, the Solicitor General also exercises the powers of the Attorney General in the absence of the Attorney General and exercises powers delegated by the Attorney General. The powers of the Attorney General presently delegated to the Solicitor General include matters involving charities and charitable trusts, venues of trials and the Surveillance Devices Act 2007. It may also be desirable for the Attorney General to delegate specific powers and functions to the Solicitor General where, for example, the Attorney General may have a potential conflict of interest in, say, intervening in particular court or tribunal proceedings, because of another statutory role that the Attorney General has.

However, the wording of section 4 of the Solicitor General Act 1969 appears to limit the power of the Attorney to delegate his powers and functions to the Solicitor General to those powers and functions that he has in his capacity as Attorney General. This may not, therefore, include the power to intervene in proceedings before a court or tribunal where an Act simply confers this power on "the Minister" who is responsible for that particular Act, and the Attorney General is the Minister responsible for that Act. The bill therefore amends the Solicitor General Act 1969 to clarify that the Attorney General's ability to delegate powers and functions to the Solicitor General extends to any power or function to intervene in court or tribunal proceedings, including a power or function conferred on the Attorney General as the Minister administering an Act. This will allow the Attorney General to delegate his power to intervene in proceedings to the Solicitor General in appropriate cases, regardless of how that power is conferred on the Attorney General. I commend the bill to the House.

Mr DAVID SHOEBRIDGE [4.53 p.m.]: I speak on behalf of the Greens to support the Courts and Crimes Legislation Amendment Bill 2010. The bill contains a number of provisions, and members who have spoken went into some detail in relation to each of them. I propose to deal with each of the schedules separately in the course of my speech. Schedule 1 amends the definitions of a class 1 offence and a class 2 offence to reflect the fact that under Commonwealth legislation provisions relating to child sex tourism have been transferred from the Commonwealth Crimes Act 1914 to the Commonwealth Criminal Code 1995. As a consequence, amendments are required to insert reference to those new offences dealt with by the Criminal Code. As a consequence of the amendments, the reporting obligations provided for by the Act will continue to apply to a person sentenced in respect of each such offence. The amendments will also ensure that offenders who are convicted of a Commonwealth child sex tourism offence shall remain registrable under the New South Wales Child Protection Register.

The Greens support this provision because it provides a necessary measure of protection for children in New South Wales from the potentially predatory behaviour of persons who have been convicted of these offences. Recognising that child sex tourism offences often occur in jurisdictions where there is little policing of them, one can only hope that having these provisions in this Act will not only go some way to protecting children in New South Wales at risk of such behaviour by providing an ongoing deterrent to persons who may potentially commit these offences in foreign jurisdictions, but also will go some modest way to providing a measure of protection for vulnerable children in other jurisdictions. The Greens support the amendments and note that necessary provisions are being inserted to allow regulations to deal with the transitional provisions.

Schedule 2 to the bill extends the definition of an offence involving violence so that it includes an offence the elements of which include the commission of or intention to commit any offence that is already defined as an offence involving violence. If a defendant is alleged to have broken into a house and then committed an act of violence and that act of itself would be defined as an offence involving violence, those combined elements make another offence that is defined as an offence involving violence. This is a rational and sensible amendment that makes for consistent application of the laws in New South Wales. The Greens support this amendment but note that any changes in criminal procedure, particularly those that apply at committal hearings, need to be under close scrutiny by this Parliament.

Often committal proceedings provide defendants with their first right to test and challenge the prosecution case that is brought against them. Against that, it is necessary to put in place measures so that people who have been the victims of an act of violence are not subjected to what can often be two instances of harrowing cross-examination by a defendant. There needs to be a balance in the law and this measure provides that balance because where a defendant can convince a magistrate that there are special reasons the alleged victim should attend to give oral evidence in the committal proceedings, the magistrate has the discretion to allow that to happen. On balance, the Greens believe this measure sufficiently protects defendants while also protecting victims from what can be a quite harrowing experience of being cross-examined on two separate occasions. I note that they can often be cross-examined by two counsels and sometimes in relation to two quite divergent elements arising from what has already been a traumatic event for them.

The amendment to the District Court Act in schedule 3 extends the kinds of qualified persons who may be appointed as acting judges of the District Court to include an associate judge of the Supreme Court of New South Wales. The Greens share the views expressed by the Government, Opposition and crossbench members that a person of the stature sufficient to be an associate judge, although not formally a judge of the Supreme Court, is someone of sufficient knowledge and standing to serve on the District Court bench as an acting judge. Of course, the reason this amendment is being brought forward is that there are not enough full-time District Court judges. The Government has found it increasingly difficult to get sufficient numbers of judges to fill the vacancies in the District Court, either by reason of lack of funding for judges or because of the quite difficult, constant and demanding work such judges face, often in fairly second-class facilities and working late into the night and on weekends. Again, the Greens support the amendment.

Schedule 4 to the bill allows the Attorney General to delegate his or her capacity to enter into proceedings to the Solicitor General. I hope that sensible provision enables the effective and timely administration of justice in New South Wales. The Greens support that amendment. Amendments extending the power to delegate will require constant review. I hope that a close eye is kept on them in those instances when the Solicitor General intervenes in circumstances where someone of the stature of the Attorney General would represent the interests of this State.

The Greens note, lastly, the amendment to the Trustee Act 1925. That amendment clarifies that it is not necessary to prescribe an individual insurer for the purposes prescribed in the Trustee Act 1925; rather, a class of insurers can be prescribed. That simple and commonsense provision will ensure that, rather than going through the somewhat tedious process of naming individual insurers, the essential elements that make for a sufficient insurer can be identified in the schedule. On balance, and clearly on merit, the Greens support this bill. We are happy to see such sensible and tidying-up legislation. It seems proper for the Government to introduce compendium bills at this time of the year and it is good to see that legislation is being clarified. The Government has introduced legislation to protect children and to provide a balance between victims' rights and the rights of defendants.

The Government introduced legislation that will enable eminently qualified members of the legal profession to appear as acting judges in the District Court. A modest reservation of the Greens is that not enough substantive judges with tenure are available in the District Court. However, putting that to one side, the Government introduced legislation to enable associate justices to act as District Court justices. I wish associate justices the best of luck in what obviously will be a difficult task for them in the District Court. The Government introduced sensible legislation that will allow for the delegation of the Attorney General's powers to intervene to the Solicitor General. If the Government keeps a close eye on that legislation it, too, will be supported, as are the amendments to the Trustee Act 1925. I commend the bill to the House.

The PRESIDENT: Order! I remind members that the Hon. Sophie Cotsis is about to make her inaugural speech and I ask that the usual courtesies be extended to her.

The Hon. SOPHIE COTSIS [5.03 p.m.] (Inaugural Speech): I support the Courts and Crimes Legislation Amendment Bill 2010. I begin by acknowledging the traditional custodians of the land on which we are gathered today and I pay my respects to Aboriginal elders, past and present. It is an extraordinary privilege to speak as a member of Australia's oldest Parliament. It is with humility, enthusiasm and complete resolve that I commit myself to the service of this Parliament and to serve the people of New South Wales. I thank the men and women of the Australian Labor Party for the opportunity to make a contribution to improve the lives of the people of this State. I acknowledge also the Hon. John Della Bosca, my predecessor, who throughout his time in this place remained true to his strong Labor values and commitment to social justice.

Entering Parliament requires a commitment not just by a new member but by those closest to him or to her. That is why this is a proud moment not just for me but for my family. I acknowledge and thank my loving husband, Arthur, for his wise counsel, his understanding and his loyalty. He is a dedicated and doting father to our children. Our son and daughter, George and Cassandra, remain a source of constant inspiration and strength to us both. Like all working parents with young kids, my children help to ensure that I retain a sense of perspective and a healthy dose of reality. Above all, George and Cassandra are constant reminders to me of why the work of this Parliament is so important. As members we are all striving to build a better New South Wales, not just for today but for future generations.

This evening I will share the values that will motivate my service to the people of New South Wales. Above all, I believe in equality. I believe every member of the New South Wales community deserves and is entitled to equal access—equal access to opportunity, to fairness, to public services and to social justice. As someone who has been fortunate in life to have enjoyed opportunities, a good education, family support and a strong community, I believe those opportunities should be available to all people in our great State. That is why I will pursue those values throughout my time in this Parliament. The provision of services, however, is never enough. The strongest communities are always built on strong partnerships between governments and people. That is why I will devote my time in this place to supporting what I believe to be the most important role of any Parliament—to be the catalyst for real, lasting and effective partnerships between community and government.

My story and that of my family began in Greece during a terrible period after World War II, followed by the Greek Civil War and a severe famine in the 1950s. It was a period of great turmoil. At this point I pay tribute to the many courageous Australian soldiers who selflessly gave their lives to defend the home of my ancestors during the Second World War in mainland Greece and on the island of Crete, where they will never be forgotten. In marking the spirit of valour it would be remiss of me not to mention the seventieth anniversary of Oxi Day—No to Fascism. Greek National Day will be celebrated around the world tomorrow, 28 October. In subsequent years the devastating effect of conflict and misfortune severely limited opportunities for education, jobs, and investment.

It was during the famine that a 37-year-old mother of five lost her battle to live. In an instant life was turned upside down for her children. This woman was my maternal grandmother, Cassandra. Devastated and facing an epic struggle to care for his five children alone, my grandfather withdrew his nine-year-old daughter from school to help to care for her siblings. That young girl was and is my mother—a strong, driven and compassionate woman, who took on massive responsibility from such an early age. This tragic event deprived my mother not just of her childhood but also of an education and of the opportunities that should have followed. Like so many migrants, my mother's desire to build a better life and future brought her to this wonderful country and to New South Wales.

This State has provided stability and much more to so many new Australians—access to jobs, decent education and opportunities for a stable and prosperous life for their children. It has allowed many to give back and make a valued contribution to this country and this State. My father's childhood in Greece was as challenging as my mother's, and he too came to Sydney to seek out a better life. My parents met and married in inner city Sydney and later settled in the St George district, where my brother and I grew up. The area remains one of Sydney's major economic, social and cultural hubs, enriched by a diverse community and the hopes and potential of its families and young people. My parents and the values that they instilled in my brother and me from an early age will always be a great source of inspiration. They taught us the value of hard work and self-reliance, resourcefulness and self-discipline, a strong sense of community, and they taught us to help others who were less fortunate. They worked difficult jobs, but they performed them with dignity and pride, always with an eye on the future and determined to provide a secure upbringing for their children. As mum often would remind us, we have no safety net; we must build one.

My mother performed a range of unskilled jobs while my father was a painter who worked on sites all over Sydney. Their limited English meant limited opportunities and little protection from workplaces that did not offer decent conditions and entitlements. Over time, through strong campaigns, the union movement fought for better conditions and eventually helped many decent, hardworking Australians, like my parents, enjoy a sense of dignity in the workplace. However, I can only begin to imagine what my parents and many of their generation endured in those early years. I will always admire their dedication to building a better life for their children and for continuing to enrich my life and that of my kids.

Watching my parents overcome these challenges taught me from an early age the true value of education, not just as a great enabler, but also for its fundamental role in any society truly committed to social justice. I was lucky to enjoy a great education at Canterbury South Public School and at Kingsgrove High School. Kingsgrove High School placed a high value on helping students to reach their full potential and contribute to society through community service. A school is nothing without its teachers, and I had many who were excellent. But there is one in particular who inspired my passion for history and politics. My history teacher from year 7 to year 12, Mr Graham—sorry, Allan Graham—who is here tonight in the gallery, led us in debates. He challenged us to think outside the square, explore new ideas, contest those ideas and encouraged us to always be inquisitive—fundamentals that later guided my undergraduate studies at Macquarie University. We enjoyed lively discussions about Australian and world history and politics. I thank him and my lifelong friends from Kingsgrove High School.

At Macquarie University I learnt for the first time the power of genuine community engagement through a number of campus groups and on later becoming a member of the Macquarie University Hellenic Studies Foundation. Our vision was to raise adequate funds to establish a permanent program preserving the perpetuity of the Greek language and Hellenic heritage at Macquarie University, so we launched the campaign. Our efforts paid off and we secured course options for the wider university student population who wanted to study Hellenic history, literature, culture and the Greek language. Above all, the experience taught me that genuine community engagement always will be the key to securing a win for the greater good. I value the long-lasting friendships forged during that campaign. I acknowledge the committee members who are in the gallery tonight: thank you.

From the earliest stages of my working life I have confronted the challenges of striving for fairness, equality and balance in the workplace. For nearly four years I was a hospitality shift worker at Sydney airport. During that time I had the privilege of being part of a diverse workforce that kept the international gateway to Australia working around the clock, 365 days per year. Hours were long, schedules were demanding for everyone from cleaners, security guards, airline staff, storemen, mechanics, retail staff, transport workers, bus drivers to electricians. The roles were diverse, but it was a workforce united by commitment to jobs and, for many, the drive to provide a better future for their families.

There is no better example of this than the 5.00 a.m. start of the Christmas Day shift when often you would find workers sharing a joke and light-hearted banter, despite having left their families at home on one of the true family occasions of the year to report for work. It was while working at the airport that I became a member of the Liquor and Hospitality Division of the Liquor, Hospitality Miscellaneous Union [LHMU]. My experiences as a shift worker and a union member helping work colleagues further shaped my values for fairness and equality across the community. I applied these values to later roles with other unions—the Labor Council, now Unions NSW, and the Liquor and Hospitality Division of the Liquor, Hospitality Miscellaneous Union—where I was privileged to represent many decent Australian hospitality workers who faced difficult conditions and circumstances.

Hospitality is tough work, often at very busy venues from pubs and clubs to restaurants and in the catering industry—even the hot dog stands at the footy—involving late nights, long days, public holidays and Christmas Day. I will never forget one place that will always highlight for me the need to ensure that all workers enjoy equity, fairness and the right to union representation regardless of where they work. At one workplace I represented a group of long-term, casual female employees who had notched up many years' service. Whenever any of them took maternity leave they were forced to resign with a promise of reinstatement upon return. This meant losing long service leave entitlements and job security, despite their years of service. This was blatantly unfair, morally wrong and illegal. I remain inspired to this day by the courage of these women. They risked their jobs to fight for what was right. This group of women would have had no recourse had it not been for the intervention of the union.

The union movement's values of access to opportunity, social justice, fairness and equality are deeply shared by the Australian Labor Party. That is why I joined the Australian Labor Party many years ago. Labor also has a proud history of bold leaders, who have vision and the courage to take this country and its people with them as they implement reforms. My decision to join the Australian Labor Party in 1993 was partly inspired by one leader in particular. I refer, of course, to that mild-mannered Bankstown boy, Paul Keating. I was inspired by his vision and reform for building a better Australia. In particular, reforms like compulsory superannuation went to the very heart of Labor's core beliefs. That year I joined the local Kingsgrove branch of the Australian Labor Party and proudly remain a member. My fellow members are the lifeblood of the community and come from a range of backgrounds. Many also are volunteers who contribute to other organisations through community service and bring those experiences to our branch. I take this opportunity to thank my fellow branch members for their support, effort and dedication to the Australian Labor Party. I acknowledge those Kingsgrove branch members who are in the gallery this evening: thank you.

I have seen from within how a Labor Government can bring real change to the people of this State. As an adviser in the Carr-Iemma Labor governments in the office of Michael Costa, a former member of this place, I was privileged to be given the opportunity to contribute to policies that helped people access better services. Earlier I talked about the impact of partnerships between governments and the communities. One such partnership that highlights the very heart of Labor's philosophy of access to better services and captures the values of equity, social justice and fairness was the extension of the $2.50 pensioner excursion ticket. This extension for the first time gave all senior citizens across the metropolitan area affordable all-day access to public transport. It has since been expanded to regional centres to benefit pensioners who live outside the metropolitan area. I am passionate about this change because this policy has improved mobility for pensioners and provided affordable daily travel for them to go shopping, visit friends and family, and do the things many of us take for granted.

I acknowledge the role played by the New South Wales business community as a driver of economic growth and employment. A strong relationship between government, business, the workforce, unions and the community is critical if we are to build a sustainable future for this State.

Infrastructure is far more than bricks and mortar, a motorway or a rail line: it is the backbone of our community. It drives economic activity, creates and supports jobs, links our people to services, and is the foundation for future prosperity. The provision of sufficient infrastructure requires all partners to work together to ensure we meet the challenges that lie ahead. That partnership must ensure we have the right skills, resources, materials, financing and capacity to do the job. Prior to being elected to Parliament, I spent a period working for the infrastructure builder Parsons Brinckerhoff Australia. That experience gave me a deeper understanding of infrastructure development, relationship building with all sectors, and how vital infrastructure is for local communities and economic growth.

I am very lucky to live and raise my young family in this great State of New South Wales. Everything I have been a part of so far has given me every reason to be optimistic and positive about our immediate future and that of future generations. Throughout this wonderful journey there has been nothing more important to me than the strong foundation provided by my family. I thank Arthur, George and Cassandra, my mum and dad, Maria and Angelo, and my parents-in-law, George and Maria, for their unconditional love and support and for their many words of encouragement.

I thank also my godparents, Anna and Steve, for their support and spiritual guidance. I send a thank you to my extended family as well. I thank my brother, Billy, my old sparring partner—a decent person with a great spirit of adventure. I acknowledge my friends for coming to Parliament House tonight. I look up at you and thank you very much for your love and support. I have been fortunate to have worked with and been supported by many people and many organisations over many years. I thank each and every one of you and I pledge I will do all I can to uphold the values that we share.

While it is impossible to thank everyone by name, I will make special mention of a number of friends and colleagues: the Premier, Kristina Keneally; Sam Dastyari, General Secretary of the New South Wales Branch of the Australian Labor Party, party officers and staff; Bernie Riordan, President of the New South Wales Branch of the Australian Labor Party; Tara Moriarty, Secretary of the Liquor and Hospitality Division of the Liquor, Hospitality and Miscellaneous Union; and my former colleagues at the union who continue their valuable work with complete dedication; Mark Lennon, Secretary of Unions NSW; officials, past and present; and the hardworking men and women of the union movement.

I have been lucky over the years to count many local supporters as my friends. I apologise for not naming all of you, but I thank you. I thank also my friend the member for Kogarah, Cherie Burton; my friend the Federal member for Watson, Tony Burke; my friend the former member for Hurstville and Lakemba, Morris Iemma, for his commitment to the Kingsgrove branch and to serving the local community; my State and Federal colleagues from the wider St George area; my friends from the St George Labor councillors; my friends from the Young Labor Executive, past and present; my friends from the St George Hospital's Lamrock Committee—thank you for coming; my parliamentary colleagues and the staff who work for them; Michael Costa and the talented and hardworking staff I worked with in his office; Mark Dimmock for the opportunity to work with visionaries and wonderful people at Parsons Brinckerhoff; and Chris Taylor from the New South Wales Business Chamber.

I extend my personal thanks to my Greek Orthodox parish at Redfern, the Greek Australian Community in New South Wales, in particular the Mytilinean association, which has been a source of educational and social comfort for my parents and my family for many years; Helen Sarantopoulos, Bill Kritharas, Harry Faros, Angela Koutoulas—we all started out together. I thank also my many friends who have provided guidance and advice: Eamonn Fitzpatrick, Courtney Roche and Jeremy Spinak. I thank my very good friends Ellen Hart, Colleen Symington and the staff of the New South Wales Parliament.

As a member of Parliament I will always champion the value of education. I have learnt firsthand its transformative effect in generations of my family. As a member of Parliament I will stand for equity in the workplace because I have seen how unequal treatment of women has placed unfair burdens on our communities. As a member of Parliament I will support legislation that translates into tangible practical improvement to daily lives because I have seen how a simple thing like extending access to pensioners has brought new opportunities for engagement in our communities. I will pursue the values of equality, access to opportunity, fairness and social justice during my term as a member of Parliament, for the good people of New South Wales. I thank you all.

The PRESIDENT: Order! I remind members that they should not converse with people in the public gallery.

Reverend the Hon. FRED NILE [5.29 p.m.]: On behalf of the Christian Democratic Party I am pleased to support the Courts and Crimes Legislation Amendment Bill 2010, which makes miscellaneous amendments to laws affecting the operations of courts and to criminal laws. Indeed, the bill amends five Acts of Parliament. First, it amends the Child Protection (Offenders Registration) Act 2000 to make Commonwealth offences relating to child sex tourism, recently the subject of legislative reform at the Federal level, registrable offences under the Act. This will also include offences such as sexual intercourse with a child outside Australia and other offences relating to preparing for or planning these primary offences. This will ensure that child sex offenders do not escape the Child Protection Register because of changes to Commonwealth legislation that have shifted some offences to different parts of the legislation.

These amendments are important because, sadly, child sex tourism activity is not decreasing but increasing. This legislation will also include those who have sexual intercourse with a child outside Australia, as well as other offences. I am concerned about what happens in Thailand and the Philippines, in particular, when Australians visit those countries deliberately to exploit children and to engage in sexual activities with children. I am also concerned that there often seems to be a lack of action in pursuing these offenders. We read about them, we even see them on the television, but in my opinion not enough is being done to stamp out this evil trade, this evil activity.

I support the amendments to the Criminal Procedure Act 1986 to expand the powers of a court to make an order that a victim of an offence involving violence is not required to attend committal hearings. Obviously following the committal hearing and after the decision has been made to proceed with the actual court case with witnesses, the victim would then play a role. But this amendment will reduce the trauma a victim experiences if they are forced to endure, first, committal proceedings and then the court case itself. Court appearances are unavoidable under our system, but I believe this change will be of great benefit to victims.

The Solicitor General Act 1969 is amended to ensure that the Attorney General may delegate to the Solicitor General his or her power to intervene in proceedings. It amends the Trustee Act 1925 to allow a regulation to prescribe a class of insurers that may insure the repayment of a loan to a trustee for the purposes of that Act. Finally, the bill amends the District Court Act 1973 to allow an Associate Justice of the Supreme Court to be appointed as an Acting Judge of the District Court. I fully support the amendments relating to the Child Protection Register, but as members know I have introduced a bill to give the public access to the names on that register. Such access is widely enforced in the United States of America and I believe it should be enforced in New South Wales. I know there is still resistance to that idea, but I believe it is something we should consider, and hopefully agree to in due course. I support the bill.

The Hon. JOHN HATZISTERGOS (Attorney General, Minister for Citizenship, Minister for Regulatory Reform, and Vice-President of the Executive Council) [5.34 p.m.], in reply: I thank honourable members for their contributions to the debate. The Courts and Crimes Legislation Amendment Bill 2010, in a number of respects, tidies up issues arising out of the administration of courts and the criminal law. I am particularly pleased with the positive comments made by many honourable members about the provisions contained in the legislation, particularly those that expand the capacity to protect children through amendments that incorporate Federal offenders on the Child Protection Register.

Some criticism was made, particularly by Mr David Shoebridge, that cannot pass without some comment. I refer particularly to the amendments to the District Court Act. Let me make clear what this proposal does: It will enable an associate Judge of the Supreme Court, or a person who has retired as an associate Judge of the Supreme Court, to be eligible to be appointed as an acting District Court judge. It happens to be the case that, since the High Court decision in Forge v Australian Securities and Investments Commission, the Government has gradually stopped—it has now stopped completely—using legal practitioners as acting judges. In other words, the only person appointed as a matter of practice as an Acting Judge is a retired judicial officer. This has reduced—not increased—the pool of eligible people who can be appointed as acting judges in our courts.

The effect on the District Court has been to reduce significantly the number of persons who have been appointed as acting judges. The comment was made that somehow we are using acting judges as a means of avoiding making permanent appointments. I make a passing observation about that particular criticism. It is interesting that earlier this year when there was an issue about a retired judge of the Land and Environment Court being appointed to replace a permanent Judge of the Supreme Court, while that vacancy existed Ms Sylvia Hale argued that I should have appointed an Acting Judge—in that case, Justice Lloyd—to replace a permanent judge.

At the time I indicated, in answer to a question in the House, that it is not my practice to use acting judges as a replacement for a permanent judge. But now we have the Greens putting the case that somehow I have been using acting judges to replace the need for permanent judges—in other words, the reverse of the argument put by Ms Sylvia Hale. All I will say to that particularly unfounded and offensive criticism is that Mr David Shoebridge should reflect on what was said recently, on 15 September 2010, by the New South Wales Court of Appeal in the case of Downey v Acting District Court Judge Boulton. I will quote the relevant extracts. In that case Justice Basten said:

Those comments were made in the Court of Appeal. They were ultimately adopted by the other two judges of the court. I believe they adequately rebut the criticism that was made by Mr David Shoebridge that somehow acting judges are used as a substitute for a permanent replacement. I remind the House that the District Court is not only the leading jurisdiction in Australia in terms of case disposition at that level but also the court, as I understand it, that meets the national standards in terms of case disposition. That is due in no short measure to the capacity of the court to be able to utilise the services of acting judges, particularly to deal with issues such as persons on leave, illness and other short-term absences. Because the pool of people has been diminished by reason of the decision of the High Court in Forge in order to adopt best practice, we need to look at ways of accessing acting judges from other sources. It seems to me eminently reasonable that a retired associate Judge of the Supreme Court be eligible and able to serve on the District Court as an Acting Judge, and that is what this amendment will facilitate.

Question—That this bill be now read a second time—put and resolved in the affirmative.

Motion agreed to.

Bill read a second time.

Leave granted to proceed to the third reading of the bill forthwith.

Third Reading

Motion by the Hon. John Hatzistergos agreed to:

That this bill be now read a third time.

Bill read a third time and transmitted to the Legislative Assembly with a message seeking its concurrence in the bill.

ELECTRICITY SUPPLY AMENDMENT (SOLAR BONUS SCHEME) BILL 2010

Bill received from the Legislative Assembly, and read a first time and ordered to be printed on motion by the Hon. John Hatzistergos, on behalf of the Hon. John Robertson.

Motion by the Hon. John Hatzistergos agreed to:

That standing orders be suspended to allow the passing of the bill through all its remaining stages during the present or any one sitting of the House.

Second reading set down as an order of the day for a later hour.

SURROGACY BILL 2010

Second Reading

Debate resumed from 21 October 2010.

Reverend the Hon. Dr GORDON MOYES [5.43 p.m.]: The Surrogacy Bill 2010 deals with an issue that concerns a large number of people in the community and that has received a great deal of attention from persons who want their values and beliefs known and presented to this Parliament. At the recent launch of his autobiography, John Howard stated, "Politics is the debate about issues and beliefs." That is exactly why I will speak about my values and the beliefs of the Family First Party in regard to the Surrogacy Bill 2010. The objects of this bill are: to make all surrogacy arrangements unenforceable, except to the extent that they provide for the payment of a birth mother's costs; to prohibit commercial surrogacy arrangements; to prohibit the advertising of surrogacy arrangements; to provide for the recognition of surrogacy arrangements, in certain circumstances, by allowing the parentage of a child of a surrogacy arrangement to be transferred to another person; to protect the privacy of surrogacy arrangements; and to enable a person whose parentage is transferred as a result of a surrogacy arrangement, and other affected parties, to access birth information in relation to the person, similar to the arrangements for access to information that apply when a person is adopted.

On the face of it, I commend the Attorney General for what he has done: many of those points are reasonable and sensible and will benefit the community. But the bill has some unintended consequences, and I will address them. For those who are not cognisant of all the details, surrogacy is—put simply—an agreement in which a woman agrees to become pregnant and deliver a child for another party who cannot, or chooses not to, have the child themselves. However, surrogacy is not simple—in fact, it involves a number of contentious issues that will no doubt be investigated today by many members of the House. This is not a debate about allowing or disallowing surrogacy agreements, as surrogacy agreements have been in place for many years without legislation. It is a bill that aims to address the difficulty of gaining legal parentage of one's surrogate child, and recognising parental rights to a surrogate child as being in the best interests of a child.

First and foremost, I believe it is important to note the legality of surrogacy in Australia. Commercial surrogacy is illegal in all States and Territories of Australia, and is envisaged to remain that way. What is called "altruistic surrogacy"—when a person becomes pregnant in order to benefit another family without any commercial transaction—is legal in Queensland, the Australian Capital Territory, Western Australia and Victoria. In South Australia it is illegal for same-sex couples or singles, but legal for heterosexual married or de facto couples. In Tasmania altruistic surrogacy is illegal even though it is legal in other parts of the nation. In the Northern Territory there is no legislation relating to surrogacy. In New South Wales there are no laws relating specifically to altruistic surrogacy, hence the introduction of the bill.

Queensland, the Australian Capital Territory, Western Australia and Victoria recognise all non-genetic parents at birth, whereas New South Wales, the Northern Territory and Tasmania recognise only female couples, not male couples. South Australia does not recognise either. In-vitro fertilisation and artificial insemination is legal for female same-sex couples in all States and Territories, except South Australia. In-vitro fertilisation and artificial insemination for surrogates of male couples is legal in Queensland, the Australian Capital Territory, Western Australia and Victoria, but illegal in New South Wales, Northern Territory, Tasmania and South Australia. I believe a number of contentious issues necessitate a thorough discussion to ascertain whether the bill is in the best interests of the child, although it is obvious from my remarks that we need national legislation to cover those issues and to develop some consensus of opinion across the nation in relation to all the various areas.

Issues of concern include how a surrogacy agreement affects the child, the surrogate mother and the commissioning parents—that is, those who require the baby to be born of a surrogate mother. It is about not only the immediate impact but also the impact that may be caused in the future. One may argue that a surrogacy agreement encourages the birth of a child into undesirable circumstances, and that such arrangements are really contracts for the purchase of a child, even when money is not involved. The Life, Marriage and Family Centre states:

We have a similar problem in the case of surrogacy, but a difference in the new legislation from those issues concerning living organ donors. I appreciate that surrogacy arrangements occur with or without legislation protecting them and that this bill is a perceived solution to the custody disputes that may result from such agreements, which in turn can seriously prejudice a child's welfare.

Psychologists have long proven that the treatment of a child in their first year is the model for the rest of their life. The possible lack of bonding between a surrogate and her child could lead to emotional and other problems in the child in later years, as many psychologists would point out, especially if after birth the commissioning couple decline the child and the surrogate is left to care for a child she did not intend to keep and may not even have wanted. There is also the possibility of anxiety or psychological despair caused to the child who finds out later in life that they are the result of a surrogacy agreement, particularly if it involves donor sperm and donor ovum, and surrogate and commissioning parents. That is a total of five persons who may be involved in one child's life.

Again, I come to discuss the issues of same-sex couples and single persons rearing a child, and again I state that no person has an inherent right to a child. It is not in the best interests of the child to deliberately commission a child without the beneficial traits that come from having both a mother and a father involved in that child's life. Studies have shown and proven that a mother and a father have very different but complementary traits and, when in a loving and committed relationship, form the best environment for a child, both in childhood and in later years. There are unique strengths that men and women bring to nurturing a child and distinct benefits that a child receives from being mothered and fathered.

It is also of paramount importance that children have a right to their biological and cultural heritage. The bill aims to formally amend a child's birth certificate to include only the commissioning parents. An original birth certificate may be kept on file at the Registry of Births, Deaths and Marriages and is accessible to the child once they have turned 18 years of age, but what happens when commissioning parents choose never to inform their child that they are the product of a surrogacy arrangement? How would they know that they were anything but the product of their parents' love and commitment to each other unless they found out that they had been commissioned by their parents and costs had been paid? I am sure a child would question this if their parents are the same sex, as it is physically impossible for them to procreate, but if the child's parents are heterosexual then there is no cause to alert them. Elizabeth Marquardt in her publication called the Revolution of Parenthood states:

I believe it is the right of every child to know their natural parents and, as far as possible, to be raised by them. Apparently the House must pass the Surrogacy Bill 2010 tonight. It is imperative that a child knows who their natural parents are, as well as their surrogate mother and the commissioning parents, and to have them identified as such on their original birth certificate. The New York Times reported:

From a child's point of view, according to a growing body of social science research, the most supportive household is one with biological parents in a low-conflict marriage.

The United Nations Convention on the Rights of the Child clearly states:

The creators of this declaration understood key features necessary for human identity, security and flourishing—having a name, being a citizen of a nation whose laws protect you and, whenever possible, being raised by the two people who physically made you. How can the House just ignore these facts? I have noticed that the bill states that the Supreme Court may grant a parentage order if satisfied that:

There is a medical or social need for the surrogacy. Where there is a female intended parent, she must demonstrate that she is unlikely to be able to conceive or safely give birth, or is likely to conceive a child affected by a genetic condition or disorder. Male singles or male same sex couples will automatically meet the definition of "medical or social need" as they are unable to give birth.

I ask the House: Is it really necessary for me to explain why a single male or a male couple cannot produce a child? I do not think so. Is it then necessary to explain why a single woman or a female couple cannot produce a child? Again, I think not. Then why is it that this bill legislates that single women, single men and same-sex couples are all entitled to surrogacy through the concept of "medical or social need"? Why not just omit the phrase to include everyone in the manner intended? Perhaps the Attorney General could answer that question when he replies to the debate. Diverting to another issue, I believe it is important to consider the risks to a surrogate mother. A surrogate mother is expected to carry her child to term, therefore restricting her lifestyle in many ways. The Life, Marriage and Family Centre states:

It is highly questionable whether a surrogate mother can ever be sufficiently free and informed of her potential physical, emotional and psychological state at the end of nine months of pregnancy, to give legitimate consent to any surrogacy arrangement. Emotional coercion, however subtle, is a particularly serious possibility when the potential surrogate mother is a relative or close friend of the commissioning couple. In view of these inherent difficulties, there should be extensive, independent and mandatory counselling for all parties, and especially for the surrogate mother, about the social and psychological implications of entering into a surrogacy arrangement, with a focus on the welfare and interests of the child to be born. The opportunity for a surrogate mother to opt out of any arrangement at any stage should remain.

This bill only recommends counselling a surrogate mother before the agreement has taken place and not after the birth of the child, so when the child is born the surrogate mother would have to hand the child over to the commissioning parents. It is at this stage that counselling is absolutely essential. The issues that concern me are: What if the separation between the surrogate mother and the child caused significant emotional suffering that could not be managed by compulsory counselling prior to the agreement? What happens if, after many years, the surrogate mother has psychological problems caused by giving away the child, especially in the case where the surrogate mother is the biological mother or if the surrogate's own family are adversely affected by the surrogacy agreement? For example, how can the agreement be explained to the surrogate's other children who are forced to contemplate that the child within their mother's womb is not their brother or sister, but the child of someone else? What happens if she changes her mind during pregnancy, as has happened in many surrogacy cases? The bill proposes:

The intended parents will have no cause of action against a birth mother if she decides to keep the child, or terminate the pregnancy. Conversely, the birth mother will not be able to sue the intended parents should they decline to accept care and responsibility for the child.

It is also crucial to state the concerns that may come from the commissioning parents. What if the surrogate mother refuses to hand over the child, or perhaps threatens she will harm herself or the child if she does not receive monetary compensation? Are the commissioning parents not subject to emotional blackmail or financial duress as well? This bill suggests not. It suggests that the commissioning parents cannot do a thing if the birth mother decides to keep the child, and that in turn may cause distress to all parties through a long, drawn-out custody court case, which is not beneficial for anyone concerned. How can we legislate surrogacy agreements if we do not specify the very many different configurations, some of which I have mentioned, that may be involved in a surrogacy agreement? There can be possibly five people involved in a surrogacy agreement—the donor of the sperm, the donor of the ovum, the surrogate mother, the two commissioning parents and, of course, the child that is born. In her publication The Revolution in Parenthood, Elizabeth Marquardt states:

In Pennsylvania, a judge recently had to decide parentage in a case in which a surrogate mother carried triplets for a 62-year-old man and his 60-year-old girlfriend. When the couple failed to pick up the infants, the hospital initiated steps to put them into foster care. In response, and eventually with the judge's approval, the surrogate mother took the children home and began raising them as her own. But the commissioning couple continues to fight for access to the children (and the 62-year-old male has been ordered to pay child support), while the college student who contributed her eggs for their conception is asserting her parental rights as well.

Therefore, in this case, the commissioning parents and the ovum donor were all fighting the surrogate mother for custody of the children. In the case here of Baby E, with which I am sure all members are familiar, Baby E was conceived after a female same-sex couple approached their friends, a male same-sex couple, and proposed a surrogacy agreement whereby one of the females would be artificially inseminated by one of the males. Baby E was born in July 2008 and was soon in the middle of a heated custody battle between the same-sex couples. Of course, the one who suffered the most out of this ordeal was Baby E. The judge, with the wisdom of Solomon, decided that all four parents should care for Baby E. Cases such as these occur all over the world, and that supports the rationale that all surrogacy arrangements must be heavily legislated against so that the parties involved, especially the child, are not adversely affected. On another note, questions have to be raised as to the moral status of the unused embryos. Will they be destroyed or experimented upon? Who will look after their interests? The Life, Marriage and Family Centre has expressed concerns over the human dignity in surrogacy arrangements. It states:

That is particularly the case where a sibling cannot have children of his or her own.

Surrogacy weakens the integrity and functionality of the family by confusing relationships between children and parents, as well as relationships between spouses or partners; promotes the de-linking of the legal notion of parenthood from traditional understandings and natural ties; and contributes to a vision of family life dominated by adult desires. Surrogacy fails to respect the dignity of both children and treats each as mere instruments.

One may argue that the bill is being discussed tonight to address the very basis of these concerns. However, I must say that I disagree with such an argument. I believe that it is impossible to cover all the issues that can arise from a surrogacy agreement because, simply put, we are not able to adequately legislate against the unpredictable emotional distress that a surrogacy agreement inflicts on all the parties involved, and for the many different configurations that may be involved in a surrogacy agreement. Until we do so, I believe surrogacy should remain illegal.

I am sure the House can see that this bill covers only the bare minimum and conveniently does not legislate on other matters of concern. If the Government is intent on legislating on surrogacy agreements, I recommend it does it accurately and all-inclusively of the many concerns I have stated, so that all aspects of surrogacy agreements are adequately covered and all parties are protected. In other words, I believe this bill is only half-baked. In her publication Children Human Rights to Natural Biological Origins and Family Structure, Margaret Somerville sums it up simply by stating:

We have obligations to ensure respect for these rights of children. It is one matter, ethically, not to interfere with people's rights of privacy and self-determination, especially in an area as intimate and personal as reproduction. It is quite another matter for society to become complicit in intentionally depriving children of their right to know and have contact with their biological parents and wider family, or their right to be born from natural biological origins. When society approves or funds procedures that breach these rights of children and, arguably, when it fails to protect such rights of children—for instance, by failing to enact [relevant] protective legislation—society becomes complicit in the breaches of rights that ensue.

I say to the Attorney General that the heart of my argument is this: If a bill fails to protect the rights of children, for instance by failing to enact all relevant protective legislation, then we become complicit in the breaches of the rights that ensue. The bill fails to specifically address pertinent issues of concern and is feeble in its attempts to legislate surrogacy agreements. As I said at the beginning of my speech, as the parliamentary leader of Family First and considering the rights of the child paramount in my decision, I have spoken about my values and the beliefs of Family First in regard to the Surrogacy Bill 2010.

The Hon. ROBYN PARKER [6.07 p.m.]: In New South Wales today people turn to surrogacy arrangements to have children because they are otherwise unable to do so. They face a considerable degree of uncertainty. As the law stands, people raising a surrogate child are not recognised as the legal parents. There is limited regulation of altruistic surrogacy, and that has resulted in intending parents in a surrogacy arrangement being hamstrung by the lack of availability of options to have parentage transferred to them from the birth mother. They cannot have parentage rights and responsibilities conferred on them, only the option to apply for the adoption of the children in their care. The bill ends that uncertainty and gives surrogate parents deserved recognition as the parents of their children by allowing a birth mother and her partner to relinquish parenting rights in favour of intending parents. It seeks to allow all couples and individuals, regardless of their sexuality, eligibility to apply for a parentage order provided they satisfy the criteria outlined by the Attorney General.

The safeguards in the bill provide a crucial protective barrier for the interests of the child and for persons engaged in the surrogacy arrangement. For example, an order can be made only when it is in the best interests of the child, and when it is done free of commercial considerations. While commercial exploitation of surrogacy will still remain illegal, a new provision has been created that will allow parties to meet an obligation to pay the birth mother's reasonable surrogacy costs, and that may include repaying the costs within reason of becoming or trying to become pregnant, as well as the costs of pregnancy or birth, or a surrogacy arrangement. There are many further important and welcome preconditions to the granting of a parentage order.

I support the measures in clauses 24 and 36, which stipulate that parties must obtain counselling and legal advice before entering into an arrangement. This will go a long way towards ensuring that those seeking a parentage order are aware of the social, psychological and legal implications of doing so. Another important measure is that the mother must be at least 25 years of age before she enters into a surrogacy agreement. That will ensure that, in the main, a level of maturity is assured. If a parentage order is to be granted, it must be shown that there is a medical or social need for the surrogacy arrangement. Many welcome measures in this bill will ensure that the parents and the child are protected under these arrangements, and that any agreement is reached in the best interests of the child.

Measures that should be applied to this legislation—measures that are applied to other important legislation—relate to the parenting of children, the care of children and ongoing arrangements relating to children. Over the past few months we have dealt with a number of important measures and this is yet another one of them. What is the fuss in relation to this legislation? The draconian laws that are currently in place were overhauled this year in Queensland and in Victoria. Laws that currently exist in New South Wales will alienate the parents of surrogate children. In New South Wales there is no option to allow a child born through surrogacy arrangements to have his or her intended commissioning parents recognised, and that has led to examples of parents being stripped of all their parental rights.

In August last year an article in the Australian demonstrated just how absurd the legal application of current laws can be. It was reported that a Sydney couple was forced to apply to the New South Wales Supreme Court for permission to adopt their own son after the Family Court found that, legally, he was not theirs. The judge presiding over the case ruled that the boy's biological mother—the woman who provided the egg and who raised him since birth—in the eyes of the law is his stepsister, while his biological father who provided the sperm and also raised him since birth allegedly is his stepbrother-in-law. That is absurd. Under section 60H of the Family Law Act couples who undergo artificial conception using donated sperm or eggs are the legal parents of the children they conceive, regardless of whether they use their own sperm and eggs.

It was reported that because of this the court ruled that the boy's mother is the woman who carried him in her womb, which in this case is his grandmother. Legally, his father is his grandmother's de facto—a man with no biological connection to him. The judge found that this unfortunate case had come about because surrogacy law in New South Wales had not kept pace with science. The time has passed for parents of surrogate children to face the indignity of fighting for legal recognition as the parents of their children. Cases such as this must no longer be played out in our courts. Parents in New South Wales must no longer suffer the indignity of fighting to be recognised as the parents of their children.

As we debate this bill it is important to acknowledge that surrogacy affects both same-sex and heterosexual families. As a result of this bill de facto and same-sex couples will be able to apply for parentage orders. In my view this bill is a vital step towards ensuring certainty for people who are required to turn to surrogacy to fulfil their dream of becoming parents. I cannot emphasise enough that, more often than not, that applies to those who are desperate to have children but who are unable to have them normally. Those who desire to have children have considered their options for a long time and they do not make such a decision lightly. They understand all the implications and they want to have a child, to love a child and to rear that child in the best environment that they can provide, which is different from parents who have children without care and who do not raise them in the best environment possible.

All too often we see the products of such parentage through the court system, the Department of Community Services and other care agencies. I have no hesitation in supporting this bill and, through it, the rights of parents with children born through surrogacy. I look forward to hearing the contributions of other members in this place.

The Hon. TREVOR KHAN [6.15 p.m.]: I speak in favour of the Surrogacy Bill 2010, the objects of which are as follows:

Those objects demonstrate that in large part the bill was introduced in response to pre-existing arrangements. The bill deals with circumstances that require clarification. These issues did not arise as a result of a legal vacuum. The issues that arise in relation to this bill were ventilated in debate on the Assisted Reproductive Technology Bill 2007—a debate that took place on 26 and 27 November 2007.

On that occasion a number of members spoke in favour of the bill. Included among them were the Hon. Tony Kelly who spoke on behalf of the Hon. John Hatzistergos; the Hon. Jennifer Gardiner, who led for the Opposition; the Hon. Marie Ficarra, who spoke at some length about issues relating to artificial reproductive technology; the Hon. Lynda Voltz; Reverend the Hon. Dr Gordon Moyes; Dr John Kaye; the Hon. Greg Donnelly; Reverend the Hon. Fred Nile; the Hon. Amanda Fazio; and the Hon. Henry Tsang. I also spoke in favour of the bill. No division was called for on the second reading. The amendments moved by Dr John Kaye were voted against by all but the Greens. No division was called for on the third reading. Every member agreed with the Assisted Reproductive Technology Bill. What we are dealing with now are, in a sense, consequential arrangements. We cannot use this debate to recreate matters that no-one was willing to confront in November 2007 or at any earlier stage. We are dealing with appropriate procedural issues. Taking stands on principles are not appropriate at this time.

The PRESIDENT: Order! I call Reverend the Hon. Dr Gordon Moyes to order for the first time.

The Hon. TREVOR KHAN: When I spoke in the debate on 27 November 2007, lest it be thought that matters have slipped through in error, I chose quite deliberately to quote at length from a submission I received from the Gay and Lesbian Rights Lobby. During the controversy various groups corresponded and forwarded submissions to members of Parliament that are strangely different from the light level of correspondence we are receiving now. The Gay and Lesbian Rights Lobby saw problems with that legislation and I took the opportunity to read those concerns to the House. For instance, the Gay and Lesbian Rights Lobby forwarded lengthy arguments about the right of a donor to qualify consent. The rights of a child to a mother and a father were also vented in 2007. No-one opposed the bill.

The Surrogacy Bill 2010 fills a legal vacuum in which New South Wales has found itself for some years in response to the ever-increasing nature of surrogacy arrangements. The bill is about protecting the best interests of children and ensuring their legal rights are appropriately protected. New South Wales has limited regulation in the practice of altruistic surrogacy. When the law and justice committee of this House delivered its report into surrogacy it noted the need for further regulation to protect the interests of all involved in the process, especially the children. The bill also draws on the work of the Standing Committee of Attorneys-General, which, in March 2008, agreed to develop a national model for the legal recognition of parentage achieved by surrogacy arrangements.

In November 2009 the Standing Committee of Attorneys-General adopted 15 principles as the basis for drafting model provisions to regulate surrogacy. It is encouraging to see a national approach to this area of law as these types of arrangements often do not stop at State borders. A national approach will ensure that the protection of children is common across the States. The bill will protect the interests of children born in surrogacy by removing where possible any current disadvantage. Today, if a child is born through surrogacy arrangements, the parents raising that child are not recognised as the legal parents or recorded as such on the child's birth certificate until and unless they succeed in adopting the child—a process that can take some years and, frankly, from my experience, also is very costly. The money required to fulfil the adoption requirements could be better spent on raising the child instead of going towards horrendously excessive legal fees.

The only other option for parents raising a child through a surrogacy arrangement is to seek a parenting order from the Family Court. Such an order does not transfer full parenting rights, and it expires when a child turns 18. The bill gives the Supreme Court the power to grant parentage if it is satisfied that granting the order is in the best interests of the child, and that a surrogacy arrangement was entered into by the surrogate mother, her partner if any, and the intended parents prior to conception. This agreement must be in writing. These arrangements will not be enforceable. Intended parents will have no cause of action against a birth mother if she decides to keep the child or terminate the pregnancy. Conversely, the birth mother will not be able to sue the intended parents should they decline to accept care and responsibility of the child.

The court must be satisfied also that: all parties have undergone counselling with an accredited counsellor in relation to the surrogacy arrangement prior to entering into the surrogacy arrangement, and the birth parents must have undergone counselling after the birth of the child; prior to entering the arrangement all parties have received independent legal advice about the surrogacy arrangement; the arrangement is altruistic and not of a commercial nature; there is a medical or social need for the surrogacy; an application was made to the court at least 30 days but not more than six months after the birth, although the court will be able to extend this time in exceptional circumstances; the intended parents reside in New South Wales; the birth mother was at least 25 years old at the time of entering into the surrogacy arrangement; all parties to the surrogacy arrangement have given their informed consent to the granting of a parentage order; the child was living with the intended parents at the time the application was heard; the parties to the surrogacy arrangement have provided to the Director General of NSW Health the information to be recorded on the Central Register created by the Assisted Reproductive Technology Act 2007, except where the intended parents satisfy the court that they have been unable to obtain this information; and the birth has been registered under section 16 of the Births, Deaths and Marriages Registration Act 1995 or interstate equivalent.

These powers granted to the Supreme Court ensure that the current deficiencies are rectified and that the children's best interests are protected. There should be no ambiguity or doubt in this area. The bill fills a void where modern arrangements to bring a wanted child into the world have been left without a legislative basis for the protection of rights and interests, especially concerning children. It is essential that our laws protect and promote the most vulnerable in our society. I therefore support the bill.

Debate adjourned on motion by the Hon. Trevor Khan and set down as an order of the day for a later hour.

[The President left the chair at 6.28 p.m. The House resumed at 8.00 p.m.]

ELECTRICITY SUPPLY AMENDMENT (SOLAR BONUS SCHEME) BILL 2010

Second Reading

The Hon. MICHAEL VEITCH (Parliamentary Secretary) [8.00 p.m.], on behalf of the Hon. John Robertson: I move:

The Electricity Supply Amendment (Solar Bonus Scheme) Bill amends the Electricity Supply Act to revise the Solar Bonus Scheme. In doing so, the New South Wales Government is striking a better balance between supporting small-scale renewable energy generation and minimising costs to consumers. The New South Wales Government already provides strong support to large-scale renewable energy generation. In addition to Commonwealth Government support for large-scale solar power stations through the Solar Flagships Program, the New South Wales Government will provide up to $120 million to support a successful New South Wales based solar power plant. The New South Wales Government also supports renewable energy projects through the Renewable Energy Development Fund and the Government has announced that it is establishing a commercial scale renewable energy working group to investigate opportunities for installing mid-scale solar panels in network areas as an alternative to network expansion. This may help avoid costly capital expenditure in the future.

The New South Wales Solar Bonus Scheme commenced on 1 January 2010 and runs for seven years. It currently pays households and small businesses a feed-in tariff of $0.60 per kilowatt hour for all electricity produced and exported to the grid by small-scale solar systems or wind turbines up to 10 kilowatts capacity. The objectives of the scheme are set in the legislation. They are to encourage and support those who want to generate renewable energy as a response to climate change, develop jobs in the renewable energy sector by assisting renewable energy generation to compete with non-renewable energy generation and increase public exposure to renewable energy technology to encourage the whole community to respond to climate change. In its first 10 months of operation, the Solar Bonus Scheme has proven to be an extremely popular program. Scheme capacity is now around 100 megawatts, up from around 25 megawatts when the scheme began. More than 50,000 customers have connected renewable energy generators to the grid, up from around 15,000 when the scheme began. Applications to the scheme are continuing to grow strongly.

As required by the legislation, a review of the scheme has been undertaken to examine whether the policy objectives of the scheme remain valid and whether the terms of the Act remain appropriate for securing those objectives. Public feedback was sought until 30 September 2010. Over 250 submissions to the review were received. Industry and Investment NSW has considered feedback from the public and obtained expert advice from modelling experts, AECOM Australia. A report on the outcomes of the review will be tabled in both Houses of Parliament as required by the legislation. Once the report has been tabled, it will be published on the Industry and Investment NSW website.

The review found that the scheme has been extremely successful in driving increased small-scale renewable energy generation in New South Wales. Modelling forecasts installed capacity under the scheme will grow to around 960 megawatts by the end of the scheme, if it remains unchanged. Total scheme payments under this scenario reach around $4 billion. Under the National Electricity Rules, these payments will be passed on to customers in the form of higher electricity network charges. The strong growth in installed capacity of solar photovoltaic [PV] systems has coincided with a rapid decline of system costs since the scheme was originally announced in June 2009. Current prices have more than halved. This includes the impact of generous incentives under the Commonwealth's Renewable Energy Target.

AECOM has identified a range of factors driving this dramatic reduction in system prices. External factors—notably a shift in the design of Spain's feed-in tariff scheme and the general global economic downturn—have decreased global demand, built up inventories and reduced module prices. According to AECOM, these declines in module prices have flowed through to lower PV system prices in the global market. As the majority of PV systems in Australia are imported, this leads to lower system prices for Australian consumers. The appreciating Australian dollar has intensified the impact of the decline in prices. These are not factors that were possible to predict at the time the scheme was introduced. Indeed, when the Solar Bonus Scheme was introduced in 2009, some members of this House thought the scheme not generous enough and called for its expansion. It is very difficult to predict the future price path of renewable energy technologies precisely because it is an emerging industry undergoing rapid technological and market-driven changes. AECOM—global sustainable energy experts—has identified likely ongoing uncertainty with regards to future prices until all levels of the market, from global manufacturing to Australian retailing and installation businesses, mature and stabilise.

The New South Wales Government recognises this uncertainty and has designed a revised scheme that takes it into account. The bill introduces a number of important changes to the scheme. A new tariff rate of 20¢ per kilowatt hour will apply to new small retail customers who join the scheme. The new rate is designed to more closely reflect the fall in system prices. A different rate may be prescribed in regulations. This will allow flexibility to deal quickly with new market conditions that emerge in the future. Other scheme criteria, such as maximum system size and the end date for the scheme, remain unchanged. This provides certainty for customers wishing to install small-scale systems.

Customers will continue to receive payment for all electricity exported to the grid. This is known as a gross tariff and is strongly supported by many customers and the renewable energy industry as it provides more certainty as to the likely payments customers may receive. Customers who prefer to receive payment for electricity exported to the grid in excess of that used at the premises may choose to do so. This is known as a net tariff. Some customers may prefer to receive a net tariff in order to take advantage of bill reductions over the longer term or to avoid the costs associated with switching to gross metering arrangements. Existing customers will continue to receive the original tariff rate. This is to ensure no unfairness to customers who have already connected to the grid.

The Government recognises that there are many customers who may have already purchased or leased an eligible generator, or entered into arrangements to do so, who have not yet been connected to the grid and will be concerned about what the changes mean for them. These customers may be eligible for the original tariff rate, provided they lodge their application to connect their system to the grid by 18 November 2010. These customers need to act quickly to lodge their application to connect to the grid on time, or make sure their installer does so, on their behalf. This date will not be extended. The bill does not permit it. Customers and installers need to act promptly and responsibly. There is ample time for installers and customers to submit their applications. Installers generally submit applications on behalf of customers and I urge customers to check with their installer to ensure their application has been lodged on time.

The bill also clarifies that existing customers who replace a generator, for example during repairs, can continue to receive the 60¢ tariff rate. However, a customer will no longer be eligible for the higher rate should the size of the generator be increased on or after 28 October 2010. If a customer increases the size of their generator, they will cease to participate in the original scheme and will need to apply to join the new scheme. These provisions are designed to ensure existing customers continue to receive the benefits of the 60¢ scheme but that the scheme costs are limited.

The Government has a comprehensive communications strategy in place to promote the changes to stakeholders and the public and we will be continually monitoring the impact of this strategy along the way. New strict provisions apply for those who are non-compliant with scheme requirements. The bill creates an offence if a person fails to notify a distributor—the network business—of any change in a person's circumstances that may affect the person's eligibility for the scheme. The maximum penalty is a fine of up to $110,000. Customers have seven days to notify their network business of the change. Under the bill, customers can be required to provide information by statutory declaration in order to determine their eligibility for the scheme. This will ensure that the Government can check that customers have provided true and correct information and that purchase arrangements can be verified.

The bill introduces an overall scheme capacity limit of 300 megawatts. This is a cap on the maximum capacity of generators that may receive tariff payments under the scheme. This is a cap on the scheme costs, not a cap on the number of renewable energy generators installed under the scheme. Distributors will be required to provide regular reports on total generating capacity of all generators connected and applications to be connected. Industry and Investment NSW will publish on its website fortnightly scheme capacity results, based on these reports. This will enable customers to make informed choices, taking into account scheme capacity levels. Once scheme capacity has been reached, a public declaration will be posted. Any small retail customer who has not been connected under the scheme once the declaration has been made that scheme capacity has been reached is not eligible to receive a credit under section 15A (5) of the Act. The scheme cap will enable the Government's small-scale renewable energy goals for New South Wales to be met, without imposing excessive scheme costs on electricity consumers. Any potential future closure following the 300 megawatt capacity being reached will not impact the tariff payments for existing customers for the life of the scheme, so long as those customers continue to operate within the scheme requirements.

Finally, the bill also sets future scheme reviews in 2012 and as soon as possible after 31 December 2016 to consider whether the scheme has achieved its policy objectives. Reports on the outcomes of the reviews will be tabled in Parliament. These changes, taken together, provide a comprehensive package of sustainable support for consumers and the renewable energy industry, a package that limits the impact of scheme costs on energy consumers. Let me be clear: the New South Wales Government is firmly committed to protecting consumers from rising energy costs. No costs associated with the Solar Bonus Scheme will flow through to electricity bills until after 1 July 2011. The action the Government is taking here today provides the opportunity to constrain these scheme costs for the benefit of all energy consumers. By approving this bill, members of this House can take direct action to reduce anticipated costs by $2.5 billion by 2016. That is $2.5 billion that will be shaved off electricity bills. And there is no time to delay, if Parliament is serious about keeping costs down. Scheme capacity is currently estimated to be increasing at the rate of around one megawatt per day, adding daily tariff payments. All that will change once the amendments proposed in this bill come into effect.

The Premier has today announced that the Government is setting up a formal inquiry to investigate options to reduce or defer electricity network charges and place downward pressure on electricity prices. The inquiry is to be conducted by Dr Tom Parry, Chair of the Australian Energy Market Operator and former Chair of the Independent Pricing and Regulatory Tribunal, and Mr Mark Duffy, Deputy Director General, Minerals and Energy, Industry and Investment NSW. The inquiry will consider options to reduce or defer network charges within the existing regulatory frameworks and independent regulatory pricing processes. Regulated retail electricity prices are determined by the Independent Pricing and Regulatory Tribunal and network charges are regulated by the independent Australian Energy Regulator. Network costs represent almost 50 per cent of customers' final electricity bills and are the largest driver for electricity price increases.

The retail and wholesale components of retail prices for small customers on standard contracts will not be examined as part of the inquiry. There is no scope under the Electricity Supply Act for the Government to set aside the regulators' determinations. However, the inquiry will be asked to identify options for any identified network cost reductions being passed through to consumers from 1 July 2011. The inquiry is expected to provide a draft report to the Government by the end of this year. The Government has acted swiftly to ease the burden of rising electricity prices. The Government has increased and extended energy rebates. Now, one in three households in New South Wales may be eligible for assistance with their energy bills.

The 20¢ tariff rate contained in the bill is a very attractive proposition in light of falling system prices, Commonwealth Government policies such as the Renewable Energy Target, and competitive market offers from retailers. At present, some retailers are offering payments of an additional 8¢ per kilowatt hour for electricity exported to the grid by renewable energy generators as an extra incentive for customers. These offers add to the income streams of customers and must be taken into account when assessing the tariff rate to be set under the scheme. Customers are encouraged to shop around for the best energy deal through the Independent Pricing and Regulatory Tribunal's price comparison service website, "my energy offers", which contains details of the various offers available, including feed-in tariff incentives.

The new scheme will continue to support the small-scale solar industry at a more sustainable rate. The Solar Bonus Scheme is an important initiative to support households that wish to install renewable energy and the growing clean energy industry. The changes proposed in this bill will ensure the scheme continues to remain appropriate in a changed environment and uphold the original objectives and intention of the Solar Bonus Scheme. I urge members to support the bill and I commend it to the House.

The Hon. CATHERINE CUSACK [8.15 p.m.]: The Electricity Supply Amendment (Solar Bonus Scheme) Bill 2010 was announced by Premier Keneally this morning, introduced into the Legislative Assembly and passed this afternoon. It is now being rushed through the Legislative Council tonight in a desperate attempt by the Government to regain control of what started out as a great idea but was wrecked by incompetence and mismanagement and has turned into an absolute pig of a scheme. The Government sought and secured the cooperation of the Liberal and National parties for the passage of this bill this morning. Significantly, the first party briefed by the Government was the Greens, as they are desperate to secure their political relationship in the lead-up to next year's election. This is yet another dramatic illustration of the way in which this Government continues to prioritise self-serving political interests ahead of the public interest.

That said, the Coalition will not oppose the bill. We have been sounding the alarm since April this year that the scheme has had a very rapid uptake and arrangements would need to be made to cap the scheme in an orderly way. We have of course been ridiculed by the Government and denied access to vital information to prove the problem. Even our calls three weeks ago for the scheme to be urgently closed were rejected by Premier Keneally, as reported by AAP on 7 October under the heading "Premier Keneally stands by solar bonus scheme".

The Government's report on the performance of the scheme, released earlier today, makes devastating reading. It was supposed to be a 50-megawatt scheme with a linear take-up over seven years, costing $202 million in total. It has experienced an exponential take-up that, if left unchecked, would increase to 1,000 megawatts, at a cost in excess of $4 billion, by 2016. The performance of the Parliamentary Secretary tonight in reading his speech with a poker face, as though the Government was doing something responsible, really must be commended. The Solar Bonus Scheme has been allowed to slide out of control and has taken too long to stop. The fact that we are discussing what was meant to be a 50-megawatt scheme potentially exploding into a 1,000 megawatt scheme is not something the Government should be proud of. The Solar Bonus Scheme has gone off the rails because the 60¢ tariff set last year was too high. We raised this at the time and expressed fears that it would trigger a boom-bust. I am sorry to say that we were right. The Solar Bonus Scheme is a bust and it is busting tonight. As of early October, the scheme had accepted connections and applications totalling 193 megawatts. This is far worse than the concerns I raised in Parliament last week when I expressed fears that the scheme might reach 150 megawatts by Christmas if left unchecked.

This morning we received the devastating news that earlier this month it had reached 193 megawatts. That news was devastating for consumers and for the renewable energy industry. It means that the costs of the scheme have exploded—from $202 million to $1.5 billion—and none of us can do anything about it. That $1.5 billion in costs, which has been spread over the next seven years, cannot be reversed. The Government is spending $1.5 billion to promote renewable energy in New South Wales, but that is not the way in which it should be spent. It should be looking at a diversity of programs, including medium-scale and large-scale renewable energy, which would produce far more renewable electricity at a much cheaper rate. However, those schemes are now at risk of being frozen out altogether.

The Government likes to refer to a statement made last year by Opposition members that the Solar Bonus Scheme was "unambitious". That is a deliberate distortion of the point that Opposition members were making at the time. We said it was unambitious of the Government to focus its energy policy 100 per cent on small-scale renewable energy. No other State in Australia and no other country in the world would restrict itself in that way. We need to transition to medium-scale and large-scale renewable energy. The $1.5 billion blowout in this scheme, which cannot be stopped, will have a devastating impact on our options to expand those industries to medium-scale and large-scale renewable energy in the future. That is the bottom line.

We are angry because future governments have been constrained by the blowout in this scheme. It means that the Government's modelling, which we were forced to accept last year, was completely wrong. First, the cost projections given to Parliament assumed a zero base. We now know that on day one 15,079 pre-existing solar panel systems, producing 25 megawatts of power, were automatically included in the scheme. This was not new to the grid—it was renewable power that we already had. Those consumers did not need or expect a 60¢ feed-in tariff. These 15,079 people won the lucky dip because they qualified instantaneously for $10.5 million in subsidies over seven years, which they did not need or ask for. Straightaway the Government blew $160 million of electricity customers' money on systems that already existed.

Even after the expenditure of $160 million not one job was created and not one new kilowatt of renewable power was produced. How irresponsible! In November last year, at the time that the legislation was introduced, this fact was denied in the Parliament. We were all misled. Second, at the time the Coalition warned the Government about a problem, which turned out to be worse than predicted. The 60¢ rate, which was too generous, triggered a boom. For a year the Government has tried to hide the extent of that problem and we have been sounding alarm bells based on leaked information. The Government modelling we requested and were given when the bill was introduced showed a measured linear take-up that would peak at the end of seven years. Minister John Robertson, in his 27 November 2009 media release, prophetically entitled "Too good to refuse—Solar Bonus Scheme passes NSW Parliament", said:

That was the aim of the scheme. In October, not even 12 months down the track, that figure has trebled. On 4 January 2010 Minister John Robertson told ABC Radio:

Our independent economic modelling shows the cost to the average household could be as little as 48¢ a bill and certainly no more than a dollar ninety a quarter. The government's being very cautious and we're going to review the scheme within two years.

What a lot of baloney that turned out to be! In early October that scheme had blown out to 193 megawatts approved or installed. The scheme now has 83,280 participants. In another demonstration of how wrong the Government got its modelling, the projected average installation, which was estimated at 1.5 kilowatts, turned out to be an average size of 2.3 kilowatts. Those installations are obviously producing far more renewable energy than the Government anticipated and must be paid for at the rate of 60¢ a kilowatt. In other words, everything the public and members of Parliament were told last year has turned out to be wrong. The New South Wales Liberal-Nationals Coalition wants to see this disastrous blowout controlled. As I said, we have been sounding the alarm bells since April.

Three weeks ago we called for the scheme to be suspended to new applications. I place on record that we had no forewarning of this legislation and the reports and, therefore, we had to no time to investigate the latest costings and modelling that were sprung on us this morning by the Government. As with the commencement of this disastrous scheme, we are again forced to rely on the Government's figures and assurances. Madam President, I assure you that we do not like having to rely on this Government but, as it has an information monopoly, we have little choice. It would only make things worse if we were to follow the Government's bad example of making up our own numbers and seeking to amend this legislation without the benefit of proper information. Potentially that would only open up the situation to more compounding problems.

For that reason we will not be seeking to amend the legislation and we will not be supporting amendments to it. Instead we place on record our anger about what the Government has done to both electricity prices and to the renewable energy industry. Because history is being rewritten by a Government desperate to spin its way out of a $1.5 billion screw up, I will take a moment to place on record the facts of the history of this scheme. In 2008 a solar panel task force modelled 10 scenarios to promote the growth of small-scale solar energy, including what we now know as option 10—a gross feed-in tariff at 60¢ a kilowatt. On 18 November 2008, BP Australia announced that it would close Australia's only solar panel factory at Homebush on 1 May 2009. This brought into high relief the fact that New South Wales was the only State in Australia still lagging behind everybody else as it had no policy to promote renewable energy. On 24 November 2008 Minister Tebbutt and Minister Macdonald issued a joint news release entitled, "Solar Plan to brighten up NSW." That news release states:

The Rees Government will introduce a feed-in tariff scheme to support people in NSW who produce renewable energy ... A feed-in tariff makes solar panels more affordable because people are paid for the clean electricity they produce. This is a win for the community and a win for the environment. The scheme will build the state's green collar jobs sector, by helping solar technology compete with non-renewable energy.

On 17 December 2008, the industry received a further blow when Minister Peter Garrett announced that the Commonwealth solar rebate would end on 30 June 2009 and be replaced with a credits scheme. The means test was scrapped and a new credits scheme was to be introduced. However, it was less generous, the Federal Government would not fund it, and the costs would be borne by electricity companies. In 2009 the report of the New South Wales task force on solar energy feed-in tariffs is believed to have been presented to Minister Tebbutt and Minister Macdonald. On 4 April 2009 the Liberal-Nationals Coalition announced its policy, calling for a gross feed-in tariff to kick-start the generation of renewable energy. We did not announce a rate for the tariff at the time; however, it was modelled by Access Economics—a matter to which I will refer later. On 7 May 2009 the New South Wales energy Minister Ian Macdonald told Parliament:

The task force has made its report to Ministers. The Government is now considering the report and will make an announcement in the near future ... I think the near future would be some time shortly.

On 12 May the Federal Government announced that unexpected demand required an extra $270 million in funding for the Solar Rebate Scheme, which highlights how many booms and busts there have been as a result of the State and Federal governments' efforts to stimulate this important industry. Every time the Government booms and busts the industry it is doing it a disservice and not a favour. On 9 June Minister Garrett unexpectedly announced that the scheme would end effective on 9 June. On 23 June Minister Carmel Tebbutt and Minister Ian Macdonald finally announced a net feed-in tariff of 60¢. On 2 September Minister Tebbutt slammed the Liberal Party and The Nationals in Parliament for their gross tariff policy, saying:

The Minister was bagging a gross feed-in tariff scheme. Of course, we defended our policy. Anyone who wants to know our policy, and what we have been saying consistently all the way through, is welcome to read my media release of 2 September. It was headed "Clean Energy Feed-in Tariffs. Delighted to show you our figures Minister, now show us yours!" I released the costings for our policy, which were based on detailed modelling from Access Economics, which had been commissioned by the Clean Energy Council. On 17 September the new Minister for Climate Change and the Environment, the Hon. John Robertson, was unable to confirm Minister Tebbutt's costings on the Opposition's policy. Embarrassingly, the then Department of Climate Change and Environment had no knowledge of how on earth Carmel Tebbutt ever came up with those ludicrous figures!

On 10 November Premier Rees announced what is now known as the major backflip—that is, the Government would support a gross feed-in tariff. But the devil was in the detail of that policy. The program was to be extremely time limited, would not apply to businesses and overstated the reach of the program. The major kicker was that it left thousands of consumers stranded with meters that were designed to work for a net tariff, as was announced previously, and were not able to be switched easily to a gross tariff. This meter debacle is another story I will not go into now, but the Government's flip-flopping on this matter has generated enormous administrative costs to energy retailers and consumers. Tonight I am focusing just on subsidies, but the other costs have been huge and were completely preventable had the Government worked out its position properly in the first place.

On 11 November the Opposition asked the Government for its modelling on the costs of the Solar Bonus Scheme being presented to Parliament. We were given the Solar PV Tariff Feed-in Taskforce Report, which stated that the average annual increase in bills per household, in 2009 dollars, would be $1.92 to $7.47 per year. We relied on that advice to allow the legislation through last year, and on 12 November 2009 the Solar Bonus Scheme was passed. I placed on record the Opposition's dissatisfaction with the modelling, our fears of a boom-bust and our belief that the scheme was flawed, but conceded that "it's the scheme we have to have if we are to get a scheme". At that time I promised that a future Liberal-Nationals Government would reform the scheme. The Hon. John Robertson told Parliament:

We expect the scheme will reward participants with a standard solar panel system of 1.5 kilowatts with about $1,500 annually. Customers with a standard installation can expect to receive more than $10,000 during the course of the scheme ... The Government has worked to ensure that any changes to businesses' existing operations are minimised. This keeps costs down for all energy customers.

I have referred already to the Minister's media release, "Too good to refuse—Solar Bonus Scheme passes New South Wales Parliament", and that he told ABC Radio he was being extremely cautious about the costs. In April I asked the Minister about the mismanagement of meters and the backlog in applications. He told Parliament:

It is true that the scheme is so popular that demands for gross meters for the scheme initially outstripped the capacity of the private sector to supply them. However, Country Energy, Integral Energy and EnergyAustralia networks have been supplying meters as they arrive to accredited service providers to install for consumers.

It is significant that on 12 April the Minister clearly was aware that demand had gone through the roof. On 20 April I asked the Minister whether the scheme had been so popular that the review trigger would be reached in July. I issued a media release on 21 April 2010 under the headline, "Solar Bonus Scheme Debacle Looms". It stated:

The Government's "Solar Bonus" legislation required a review when total connections to the grid reached 50 MW ... But the scheme has been so popular that barely a few months into the program this trigger has already been reached.

The Opposition begged the Government in April to get on top of this obvious problem, and we did not have access to even a fraction of the information or advice that the Government had and which it concealed. It was not until 24 August 2010 that Minister Lynch announced that the 50-megawatt trigger had been reached. On 7 October, based on information leaked from the energy industry, I issued a media release with the headline, "Keneally Government must urgently close out of control Solar Bonus Scheme". On the same day, AAP issued its report, "Premier stands by solar bonus scheme". Last week, on 20 October, I moved a motion in the Legislative Council calling for papers to force the Government to release actual data about take-up rates and costs of the scheme, and raised the Opposition's concerns. It has taken until today, 27 October, for the Premier to announce closure to new applicants, with a transition to a new 20¢ feed-in tariff rate. As I have stated, this legislation will pass in a single day with the Opposition's cooperation because we are as desperate as everybody ought to be to stem the blowout in these costs. In her defence of the scheme, on 20 October Premier Keneally told a media conference:

This Government is acutely aware of the increases that we have seen in power prices in New South Wales. That is why we moved so quickly to extend the rebate scheme so that one in three households in New South Wales is eligible for the scheme.

The implication in that comment, as in the Minister's second reading speech, is that the rebate scheme initiated by thes Government will somehow provide protection for those vulnerable consumers who otherwise will be hit by a huge levy to pay for this Solar Bonus Scheme. We estimate that levy will be $100 per household, on average. The rebate referred to by the Premier is currently set at $145 for all pensioners and health card holders. It is set to increase to $161 on 1 July 2011. However, the rebate will be offset by a levy to fund the Solar Bonus Scheme, which, in the absence of hard data from the Government, we estimate will be around $100. The effect for pensioners and health card holders will be that a $100 price rise will be cushioned only by a $16 increase in the rebate. The Premier is misleading our most disadvantaged consumers into believing they will be protected. They will not. Their bills will rise at least $16 per quarter because of the Keneally Government's mismanagement of the Solar Bonus Scheme.

We now know that Premier Keneally was defending the scheme even though her Government had been advised it had blown out 400 per cent in size and 600 per cent in cost. The question that the Premier must answer is: Why did she fail to act to stem applications in August when the 50-megawatt trigger was reached unexpectedly? That was only 50 megawatts of power installed and entering the grid when, potentially, another 50 megawatts had been applied for and approved. Why did she not act to end the scheme then? Why did she reject our pleas to act on 7 October? Now that the scheme is to be closed to new applicants, will the Government advise exactly how many hundreds of millions of dollars this failure to act is going to cost consumers? It is reprehensible for the Keneally Government to put off an embarrassing announcement knowing that the delay will gouge money from the pockets of pensioners and health card holders as well as families and households already struggling to pay the costs of the Government's infrastructure neglect.

I am dismayed at the way in which the Government is closing off applications for the 60¢ feed-in tariff rate. This morning the Premier announced that people will have until midnight to enter into a legally binding agreement to qualify for the 60¢ scheme. They then have three weeks to lodge an application, which the Government says will be accepted and honoured. If the Government has been flatfooted and dumb in the implementation of the Solar Bonus Scheme, it has been even dumber in the way it is closing it off. By announcing the closure early in the day to suit the Premier's media agenda and making the cut-off midnight tonight, the Government has given installers 14 hours to sign up new customers who will be guaranteed acceptance to the scheme.

All installers around the State and interstate installers servicing New South Wales have reacted with lightning speed. Tens of thousands of emails have been forwarded to potential customers, alerting them to the midnight deadline and advising them that businesses are remaining open until midnight in a mad frenzy to sign up as many people as possible before the cut-off. The energy companies are advising people to use electronic bank transfers so that they have evidence of a financial commitment to get into the scheme. I will read onto the record evidence of the absolute frenzy of activity that is proceeding as we speak. This email from SolarSwitch states:

URGENT AND IMPORTANT INFORMATION

Solar 60c/kWh FIT Being Cut at Midnight! Get in Now!

altered dramatically to just 20ckWh as of midnight tonight 27/10/10 action is required today.

Existing customers

please urgently visit our office with your $400

non refundable

deposit and a copy of your electricity bill.

OPEN UNTIL MIDNIGHT TONIGHT!

open until midnight tonight

A constituent contacted me to say that he has been making inquiries of two companies, and both contacted him. One message states:

drastically cutting

as of midnight tonight.

However, and this is very important,

today/tonight

full 60c per kilowatt hour.

Energy Matters

11pm tonight

start calling as soon as possible

Those messages indicate what is happening at the moment. An absolute avalanche of applications has been triggered—all because the Premier needed to time her magic media moment for 10 o'clock in the morning to maximise her personal publicity and maintain a midnight deadline. The Government is displaying incredible irresponsibility. In all, the costs to consumers down the track of the Premier's magic media moment will be astronomical. I assure the House that we will get to the bottom of the number of applications that have been submitted as a result of this reprehensible, irresponsible, unthinking stupidity by Premier Keneally.

The avalanche of applications does not take into account other applications that I fear are liable to be signed and submitted with receipts backdated. The opportunity for fraudulent submission of applications appears to be open ended in this scheme. The Opposition is not satisfied with the security arrangements around the scheme. We are completely stuck with this pig of a scheme and the incompetent manner in which it is being closed. I can only place the Opposition's concerns on the record. I emphasise to the Parliament that this debacle is not the fault of participants in the scheme. People who want to reduce their carbon footprint and do the right thing have responded to a price signal that was offered by the Government. This is not the fault of the industry, which will suffer the brunt of a boom-bust that has been triggered by this irresponsible scheme. It is completely the fault of the Keneally Government.

Today Opposition members have been asked by many in the community to support amendments for a step-down arrangement rather than going from 60¢ to 25¢. Sadly, I have had to explain that we cannot support any amendments to the legislation to that effect because we simply must stem the massive cost blowout. That has to be our first priority, but it does not mean that we will not undertake a measured and considered examination of the information and review that 20¢ rate. But plucking new numbers out of the air clearly would be irresponsible on my part and will only make matters worse, so the Opposition certainly will not be doing that. That does not mean the Opposition does not absolutely empathise and sympathise, particularly with industry, in relation to the need for a better transitional plan than the Government has offered.

I state for the record that a future O'Farrell Government will honour all accepted applications as a matter of faith. The Opposition's longstanding opposition to retrospective change will mean that all applications accepted by the Government will be honoured by a future O'Farrell Government. Instead of accepting responsibility, repairing hopeless governance arrangements and coming clean on the numbers, the Government has spent the whole day focused on the Opposition and Opposition policies and has misrepresented the position of the Liberal Party and The Nationals. That reflects not only the Government's obsession with the political consequences of its own incompetence but also a continuing lack of concern for the financial consequences of this debacle that will be suffered by homes, businesses and community groups who, unfortunately, will be forced to bear the huge cost of this bungled scheme.

The Hon. ROBERT BROWN [8.45 p.m.]: I will comply with my instructions and try to deliver my speech in 30 seconds.

The Hon. Catherine Cusack: But you are not being misrepresented, unlike some people.

The Hon. ROBERT BROWN: I take it from the remarks of the member who preceded me in the debate that the Opposition will not oppose the Electricity Supply Amendment (Solar Bonus Scheme) Bill 2010—although it was a pretty good 30 minutes of not opposing it. I request the Parliamentary Secretary to clarify a couple of points during his reply. I was informed by the Minister's adviser that the scheme at 300 megawatts is likely to cause roughly $4 billion worth of extra cost over seven years. I ask the Parliamentary Secretary to confirm that when he replies to the debate. Members should understand, as confirmed earlier by my genius engineer colleague opposite, that even at 300 megawatts, in an installed capacity of 18,000 megawatts that would be just a tiny fraction. The cost is all out of kilter in terms of what will be spread among consumers.

I think I mentioned previously that I am the recipient of installed 60¢ per kilowatt hour solar panels on the roof of my home. It took four months from the date of signing the contract and several payments to have them installed. It took four electricians all day to install them. So a lot of employment is being generated from the panels that are being installed now. If we are really serious about renewable energy, or almost renewable energy, we should not be wasting time arguing about this legislation; we should get off our backsides and build some nuclear power stations.

The Hon. SOPHIE COTSIS [8.46 p.m.]: I support the Electricity Supply Amendment (Solar Bonus Scheme) Bill 2010. The bill demonstrates the commitment of the New South Wales Government to support the solar and broader renewable energy industry and customers who are interested in generating clean energy at home. In light of unprecedented levels of participation in the scheme, the bill provides an opportunity to strengthen obligations on those participating in the scheme with a view to containing total scheme costs. To keep costs down, we must ensure that only customers who are entitled to receive benefits under the scheme are doing so. That makes it fair for everyone.

The bill will support a strengthened compliance regime relating to the scheme. It introduces a new provision to enable the Government or network businesses to require a person to provide information by statutory declaration to determine the person's eligibility under the scheme. That request can be made at any time. For example, customers may be asked to certify that they do not receive the tariff for any other eligible generator and that their application conforms to the scheme's rules. This will ensure that the Government can check that customers have provided true and correct information and that purchase arrangements can be verified.

Under the legislation, the scheme participants will be required to notify the network operator within seven days if they cease to be eligible to participate in the scheme. Failure to notify the network operator in accordance with the provision will be an offence that is punishable by imposition of a maximum $110,000 fine. To complement the new requirements, the New South Wales Government has given responsibility for determining whether a compliance and safety regime is required for the Solar Bonus Scheme to NSW Fair Trading and Industry and Investment NSW, and, if so, they will develop a suitable model.

I acknowledge that the Solar Bonus Scheme was designed with safety in mind. The legislative framework for the original scheme requires generators to comply with safety, technical and metering requirements. Solar PV systems must be installed and connected by qualified technicians and compliance is assessed at each stage. Systems installed since the scheme began on 1 January 2010 must be installed by a person who at the time of the installation had a Grid-connect Design and Install accreditation from the Clean Energy Council. These accredited installers must adhere to all relevant Australian standards. The electrical wiring of a solar PV system for connection to the grid needs to be completed by a licensed electrician, who has the specialist qualifications required for this type of work.

There is a formal process whereby the distribution network must be satisfied that the PV system is suitable for connection to the network. All these measures are about protecting customers and ensuring that these high standards are maintained as the industry grows. Network businesses are checking a large proportion of meters and connections in their area; EnergyAustralia is checking 100 per cent. The new penalties and obligations outlined in the bill will complement these stringent safety practices and ensure that the scheme continues to be implemented appropriately. I commend the bill to the House.

Reverend the Hon. FRED NILE [8.51 p.m.]: On behalf of the Christian Democratic Party I support the Electricity Supply Amendment (Solar Bonus Scheme) Bill 2010. This bill is a result of the Government's success in introducing the Solar Bonus Scheme. Indeed, I understand that more than 50,000 customers have now joined the scheme. Therefore, the Government has no option but to put this bill through the House tonight to close the current scheme at midnight and to introduce a new and more sustainable program with one-third of the current tariff rate, or 20¢ a kilowatt. Customers already participating in the scheme will not be affected by the change. A review of the scheme showed that a range of factors, including the strong Australian dollar and renewable energy policies in overseas markets, has seen the price of solar panels more than halve since the program first commenced. I understand that many panels are being produced in China at a more economical rate.

The review showed that in its current form the scheme is increasing at a rate of about one megawatt a day, adding tariff payments of about $3 million. If unchanged, the independent modelling forecast installed capacity under the scheme to grow from about 25 megawatts to nearly 1,000 megawatts by the end of 2016, taking payments to $4 billion. This bill will immediately close the current program to new applications as of midnight from the date the bill was introduced into Parliament. Often legislation dealing with this type of matter takes effect from the time it is announced. Perhaps the Government should have done that, rather than extend the current scheme to midnight; if the information is correct, the suppliers may be abusing that time gap.

Customers who have already purchased or leased a generator will have 21 days to lodge their applications to join the program. It will introduce an overall capacity limit of 300 megawatts for all generators connected under the scheme, which is still much more generous than caps that exist in other States, including Victoria and the Australian Capital Territory. NSW Fair Trading and Industry and Investment NSW will also determine whether a compliance and safety regime is required and develop a suitable model. I support the bill. I understand the amendment foreshadowed by the Greens would only continue to multiply the problem that the Government is seeking to address in this bill. Therefore, I will not be able to support the amendment.

Dr JOHN KAYE [8.54 p.m.]: I speak on the Electricity Supply Amendment (Solar Bonus Scheme) Bill 2010 on behalf of the Greens. As previous speakers have correctly noted, this bill responds to the massive growth in solar panel installations as a result of the solar bonus feed-in tariff scheme. What was supposed to be a 50-megawatt scheme has blown out to a 190-megawatt scheme, well in advance of when it was supposed to reach even 50 megawatts; and if left untrammelled it is likely to blow out to about 1,000 megawatts. Clearly the scheme is growing much more rapidly than was anticipated originally. In and of itself, rapid growth in the installation of solar panels is not bad; indeed, it is excellent. It provides employment, offsets against greenhouse gas emissions from coal-fired power stations, and an entree into the green energy economy, which is truly the economy of the future.

The substantial problem is that someone must pay for that. The scheme is designed in a way that the payments come out of consumers' bills via an additional premium on the distribution use of system charges—the so-called DUOS. Effectively, that means that it is spread across households within each distribution franchise area. The concern is that an overly generous scheme that set too high a premium price will be unjust on households already struggling with high electricity bills. Significantly—and, as we have seen, unjustly and inaccurately—it will generate a political backlash. One tabloid newspaper and a number of talkback radio stations are blaming existing increases in electricity bills, first, on the carbon price, which is inaccurate because there is no carbon price; and, secondly, on the solar feed-in tariff, which is inaccurate, as was pointed out to me on previous occasions when we talked about this issue. Indeed, rises in bills will not happen until next year.

It is important to get this right. If we set the tariffs too high we are delivering windfall profits to the owners. There is nothing wrong with owners making a profit or a healthy return on their investment. There is something wrong with setting a tariff that is imposed on other energy users and using that to fund a windfall gain for people who have purchased solar panels. Of course, this could have been done another way. It could have been achieved by imposing a tax on the large coal and gas generators. That alternative would possibly have been more stable politically. However, the scheme was not designed that way, which is a shame—if it had been we would be viewing the current situation very differently and consumers would not be feeling the pain.

We need to get this right. If the tariffs are set too high we create boom conditions—which in and of itself is not too bad—but we deliver windfall profits to those who have invested in the solar panels and we put a high impost on bills for many households throughout New South Wales, which is unacceptable. On the other hand, if we set the tariff level at a premium and the bonus level too low, the solar industry will collapse and possibly die, with a loss of jobs and damage to the future of the green economy. A number of speakers addressed the issue of how we got here. The simple answer is that the Government, in shifting from a net feed-in tariff to a gross feed-in tariff, did not adjust the bonus rate downwards. That means we have ended up with a scheme that is too expensive.

We could simply wind the tape back to November 2009, when in hindsight it would have been wise to say, "Wait a minute, 60¢ is too high. How about you bring that down to 50¢ or 45¢?" If we had done that we would be in a very different position today. But at the time I did not say that, and I did not hear anyone else say that 60¢ should be wound back to 45¢. Those of us who campaigned for a gross feed in tariff were so elated to get it that we did not fulfil our function properly and ask, "Is this sustainable economically? Is it sustainable politically?" If we were honest, the answer should have been "No, it is not". Those who did not ask those questions should take some degree of blame.

But that is not all that has happened between November 2009 and now. Things way beyond the control of any of us and of the Government have occurred. The substantial change to the Spanish solar feed-in tariff scheme has meant that it has gone into terminal decline, and as a result a large number of panels have been dumped on the market by manufacturers and suppliers in anticipation of the Spanish scheme. On top of that Chinese manufacturers have been forced by global economic conditions to lower their prices closer to their costs. Chinese manufacturers have become very good at producing solar panels in the past decade. It is terrific that their production costs have come down so dramatically; it will a huge weapon in the arsenal that we will need to fight global warning. However, because of buoyant demand for solar panels they were able to charge prices that did not reflect the reduction in costs. In the past 11 months their prices have come down to a level that more closely resembles their total costs.

On top of that, changes to the Federal Government's renewable energy targets and the resolution of some of the problems therein, along with other matters, have contributed to the scheme now looking far more generous than it did in November 2009. Regardless of who is to blame—and I think we should all accept a proportion of that blame albeit some of the happenings were beyond our control—we need to accept the need to adjust, and I wish to discuss how we should make that adjustment. Two key objectives have to be met for that to be done properly. We need to keep the solar industry growing; anything that stops growth in the solar industry will squander the money we have already invested in it thus far. As the Hon. Catherine Cusack pointed out, no matter what action we take now, money will still be paid next year to support this scheme and we do not want that money to be wasted. The best way to secure that legacy and to make funding thus far worthwhile is to continue to grow the scheme in a sustainable way, and in a way that makes sense and incubates the solar industry, to turn it into a self-sustaining industry as prices of solar panels and the auxiliary components fall—as they inevitably will.

This is about incubating an industry and making sure that assistance is given to allow it to stand on its own two feet and not to be competed out of the market before it is born. We also need to make sure that it is sustainable in order to secure jobs in this industry, and there are lots of them. One and a half years ago, the University of Newcastle estimated that there would be 73,800 new jobs in the clean energy industry in New South Wales if the State makes a transition away from coal fired power stations. That is a massive number of jobs, but they will not materialise on their own. There need to be policy settings that focus on incubating the industry that will employ those 73,800 workers to make sure that this State enjoys the sustainable clean green economic growth those jobs will bring with them. We need to sustain the industry in order to nurture the expertise to put New South Wales ahead in the race to build up a renewable energy industry.

Those and many others constitute the early adopted benefits in a transition to a green energy economy and they should not be squandered by setting tariffs too low. Setting them too low will mean that we miss out on those benefits. Worse still, after 11 months of complete boom in the industry a sudden, rapid drop in the tariff to below an economically sustainable level will send the industry from boom to bust. That would be not only unfair for those who have invested their life savings, their treasure, into creating businesses and undertaking training to participate in the industry; it will also rob the industry of confidence in future growth. Never again will the industry trust this Parliament or the Government to incubate it and to help it make the transition. It will destroy community goodwill towards the renewable energy industry.

There is a lot at stake if tariffs are set too low. On the other hand, if tariffs are set too high, the risk is that not only will we deliver windfall profits to the adopters—although, of course, they should be given a reasonable return on their investment—but also we will cause unnecessary hardship to households, many of which are already struggling with rising electricity prices. Various figures have been floated on the impacts on households, but to be absolutely clear before we go into a total panic about this I advise members that the New South Wales Government-owned energy distributors and transmission company Transgrid have already embarked on spending $16.4 billion on electricity network upgrades.

I have no doubt some of the expenditure is completely necessary and strongly supported to maintain a reasonable level of electricity reliability. However, much of that investment is simply gold plating, striving for an unrealistic level of reliability with diminishing economic returns as more money is invested. The price that every household in New South Wales has to pay for that $16.4 billion on wires, poles and substations is simply not justified by the benefits delivered. A proportion of that $16.4 billion—approximately $5 billion as estimated by some researchers—will be spent purely to support the peak load for two hours a year. That is an investment of $5 billion in equipment that will sit idle for the remaining 8,768 hours a year. There are much cheaper ways to achieve that, and they are better for the environment. Clearly, using demand management—in particular, cycling air conditioning during peak times, cycling off washing machines, and cycling off other equipment that is non-crucial during peak times—can be used to massively reduce the demand and to live within the existing capacity of the network.

The Clean Energy Council estimates that when the scheme was at 100 megawatts the total cost was less than 8 per cent of the costs of the new wires, poles and substations. At 190 megawatts it would be less than 15.2 per cent of the total cost, that is to say, the cost of the solar scheme is dwarfed by the spending on the wires, poles and substations, yet the spending on the solar scheme has tangible benefits in terms of building a clean energy future. Nonetheless, there is an argument that it does not make sense to set the tariffs too high and we should avoid impacts on households when we can. On that basis the Greens conclude that 60¢ per kilowatt hour is too high and supports moves to reduce the amount. However, we are deeply concerned that 20¢ per kilowatt hour is way too low and we run the real risk of sending the industry into terminal decline. We risk undoing all the benefits that have been achieved by the solar scheme over the past 11 months and, worse still, we risk the goodwill and confidence in industry and the future of a solar energy industry in New South Wales.

At her media conference this morning the Premier presented modelling that suggested that 20¢ a kilowatt hour would keep installers happy and maintain growth in the industry. I say that is good, but I remind members that this is the same government that presented modelling 12 months ago stating that 60¢ a kilowatt hour would lead to sustained and sustainable linear growth. It has not led to sustainable linear growth, it has led to exponential growth. I acknowledge that that is not the Government's fault, but there is a fundamental flaw in modelling. Modelling is only as good as the assumptions put into it. When one is predicting the future it is impossible to know whether one is right or wrong until one is in the future. Some of the assumptions change and models are imperfect. I say that as somebody who spent 20 years as a mathematical modeller in the engineering and energy areas.

One cannot and should not trust models; they are guides. A lot of people in industry are now saying that 20¢ is just too low. Having a 20¢ tariff will damage the future of the industry. The industry is saying to us that if we are serious about maintaining this, it should be at 45¢. I suspect that at 40¢ we would still maintain a quality industry. I am concerned that at 20¢, which is what the bill suggests and what the Government is advocating, we will damage the industry, possibly terminally. I am convinced that closing the scheme now, as has been advocated by the Coalition, will kill the industry and will do untold damage.

The industry is saying 45¢, the Greens are saying somewhere between 40¢ and 45¢, the Government is saying 20¢, and effectively the Liberals are saying to throw the switch on the industry entirely. We would prefer a 40¢ scheme. We believe that a 40¢ scheme would be sustainable and reviewable after a year. It would probably contain the windfall profits and would almost certainly contain the massive growth to a sustainable level. That would take us out of a boom and convert some of that boom into long-term sustainable growth. We recognise that we are not going to get 40¢ a kilowatt hour. In the spirit of trying to compromise, and I doubt whether we will get it through, we have lodged amendments that provide for 30¢ a kilowatt hour. Our rough analysis on that 30¢ a kilowatt hour proposition is that it will cost about $100 million over the life of the scheme. That is less than $7.00 per household per year. Non-participants in the scheme, the vast majority of households, will pay an average for our adjustment from 20¢ a kilowatt hour to 30¢ a kilowatt hour, which will push up household bills by an average of $7.00 per kilowatt hour per year. That is, it will be less than $2.00 in each bill. The difference will be totally dwarfed by the massive increases—the 14 per cent increases—that are being imposed by the Government's approved infrastructure spend. We cannot support the reduction to 20¢ a kilowatt hour. We could support a reduction to 30¢ a kilowatt hour, but we are too concerned that reducing the scheme bonus to 20¢ a kilowatt hour is signing a death warrant for the industry and we will not support that.

Before making observations about what the Hon. Catherine Cusack said, I acknowledge that she was the person who raised the issue that the scheme was unsustainable. I think the Hon. Catherine Cusack believes that I have not acknowledged that. I want to make it clear to the House that I acknowledge that the Hon. Catherine Cusack was one of the first people to say that the scheme was in trouble—and she deserves some credit for that. However, I simply do not agree with her suggestion that the 14-hour warning period was too short. I am often a critic of the Premier and the Greens are often critics of the Labor Party, and we will continue to be, but I cannot conceive of another way of changing legislation that does not telegraph to the population that legislation is going to be changed.

I can see only two ways that we could have done this without providing a 14-hour warning to the community. The first was for the Parliament to meet in closed session. But we simply do not do that. The second way would have been to make the measure retrospective, and I do not think that anybody in this Chamber wants to do that. Fourteen hours is about the fastest rate at which we can change legislation, and I again remind members that the Greens, the Coalition, the Shooters and Fishers Party, the Christian Democrats, Family First and Labor all voted for legislation that locked in 60¢ a kilowatt hour. So the only way we could have done this was in the way it was done: by announcing it, allowing a day's debate and closing it out at midnight. No doubt there will be some honeypot happening today. It is unfortunate but it will happen. Some people will dive in at the last moment. That is the price we have to pay. Sooner or later we have to bite the bullet and change the 60¢ per kilowatt hour. That is agreed.

I also do not agree that this is entirely the fault of Premier Keneally or her Government. I think we all have to take responsibility for it. I said in debate recently on a call for papers by the Hon. Catherine Cusack that it is highly possible that either the scheme was overly generous at the time that it was passed or events since then have made the scheme now overly generous. In saying that I do not seek to apportion blame to anyone. I was one of those who voted enthusiastically for the November 2009 legislation, and the Greens supported the legislation. Let us not turn this into a blame game. Let us attempt to solve the problem. Let us try to work together to create what every member of this House wants: an economically and socially sustainable solar industry in this State.

I finalise my remarks by drawing on that observation. If we are serious about maintaining a solar industry, if we are serious about New South Wales being in a leadership position when solar prices, solar manufacture costs and hence prices fall even further, we have to maintain assistance to this industry. It will not survive on its own. We have to take collective responsibility for having thrown the industry into boom. Let us not now pull the carpet out from underneath it. Let us do the sensible thing and sustain this industry; let us make sure that it is sustained through to the time when it is self-sustaining. Let us incubate this industry. Let us do what governments ought to do, and that is incubate the industry to ensure that when solar panels decrease in price New South Wales will be in a leadership position so far as jobs are concerned and the ecological benefits that that position will bring.

The Hon. MICHAEL VEITCH (Parliamentary Secretary) [9.16 p.m.], in reply: The Government is aiming to put the New South Wales Solar Bonus Scheme into a position where it achieves two important objectives. Firstly, it will continue to operate as an important incentive for people to invest in solar PV technology, which enables them to generate power that is then sold back to the electricity grid. Secondly, it aims to do this while keeping costs down for all energy users. In the first 10 months of operation, the New South Wales Solar Bonus Scheme has been more successful than could ever have been anticipated. The legislated ministerial review at 50 megawatts of generation was reached mid this year, with more than 30,000 customers already connected. There are many reasons for the extraordinary rate of uptake, not least of which is the fact that the price of small-scale solar PV installations has more than halved over that period.

The Government wants to bring the scheme back to a position where it is faithful to its original aims—to encourage the uptake of solar technology, but slow down the uptake and contain the costs that are passed on to us all. The bill reduces the existing gross feed-in tariff rate from its current level of 60¢ per megawatt hour. This will not affect existing participants, and the bill makes clear that people who have entered into a contract by midnight tonight and who lodge an application within the next 21 days will be accepted under existing terms. Those joining the scheme after this point will receive a gross feed-in tariff of 20¢ a megawatt hour. It is important to remember that just 10 months ago, when this scheme was introduced, the tariff rate would have resulted in a payback time of around eight years. With the dramatic reduction in prices, that term is now as low as two years. The amendment of the New South Wales gross feed-in tariff will return that payback time to approximately the same period as 10 months ago.

The Government also proposes to introduce a limit of 300 megawatts on the New South Wales Solar Bonus Scheme. It is important to recognise that this will probably make New South Wales home to the smallest solar installations in the country. The Government also plans to establish a commercial scale renewable energy interagency working group to look at opportunities where larger-scale solar PV installations could be used as an alternative to more traditional forms of network expansion. This exploration of more commercial-scale solar PV generation will be undertaken in partnership with the network businesses. These are sensible measures. They will deliver a solar bonus scheme that will continue to attract more participants, but balance the imperative with ensuring that costs are contained. I do not think that any of us would deny that both goals should be important to any government. The bill seeks to deliver on both in a commonsense and pragmatic way.

With regard to the matter about which the Hon. Robert Brown sought clarification I advise the House that the current scheme, if it were to continue unchecked, would cost around $4 billion. The changes introduced by this bill, which include the 300 megawatt cap and the 20¢ tariff rate, will save around $2.5 billion. I thank all members for their contributions to the debate and I commend the bill to the House.

Question—That this bill be now read a second time—put and resolved in the affirmative.

Motion agreed to.

Bill read a second time.

In Committee

Clauses 1 and 2 agreed to.

Dr JOHN KAYE [9.21 p.m.], by leave: I move Greens amendments Nos 1 to 3 in globo:

Insert instead "$0.30".

(3) The Minister is also to conduct a review as soon as possible after 27 October 2011 to consider whether the rate of $0.30 per kilowatt hour under section 15A (5) continues to be appropriate having regard to the policy objectives of the scheme.

I foreshadowed these amendments in my contribution to the second reading debate. They raise the proposed level of 20¢ per kilowatt hour to 30¢ per kilowatt hour. They also take away the capacity to be able to amend the amount of 20¢ per kilowatt hour by prescription in regulations. Amendment No.3 requires the Minister to conduct a review as soon as possible after 27 October 2011 to consider whether the 30¢ per kilowatt hour tariff rate under section 15A (5) continues to be appropriate having regard to the policy objectives. It requires the Minister, one year from today, to conduct an inquiry into the effectiveness of the 30¢ per kilowatt hour rate.

This goes to the point I made in the second reading debate that modelling is always going to be imperfect and setting a tariff rate on the basis of what a model suggests will always get one into trouble. It is important that we regularly consider whether we are reaching those policy objectives based on the price that we have set. I do not propose to go over in detail why the Greens advocate these amendments. We would prefer to move an amendment to make the rate 40¢ per kilowatt hour; we believe that would be a more reasonable growth-inducing level of bonus for the industry. However, we realise that the Government wants a rate of 20¢ per kilowatt hour and we are trying to meet the Government halfway. So this is a compromise. At 30¢ a kilowatt hour there is no question the industry would struggle. At 20¢ per kilowatt hour we think the industry could potentially be in great danger. I urge members to give consideration to these amendments and I commend them to the Committee.

The Hon. MICHAEL VEITCH (Parliamentary Secretary) [9.24 p.m.]: The Government opposes all three Greens amendments. They propose to increase the new tariff rate from 20¢ per kilowatt hour to 30¢ per kilowatt hour. This is unsustainable. It will increase scheme costs, thus pushing up electricity bills for New South Wales households. Combined with the new scheme cap of 300 megawatts it will front-load the scheme, creating pressure on the renewable energy industry over coming months and drying up work for the longer-term. The amendments locks in a tariff rate of 30¢ per kilowatt hour, reducing flexibility to adjust the rate in future if circumstances change. The New South Wales Government has carefully considered a sustainable tariff rate for the future of the scheme and has released its independent economic modelling from AECOM to support its proposal. The bill reflects this position. As I indicated earlier, the Government will not support the amendments.

Reverend the Hon. FRED NILE [9.25 p.m.]: On behalf of the Christian Democratic Party I indicate that we do not support the amendments. The Government has to take strong action to adjust the potential fallout from these provisions, which would have a dramatic effect on the State budget.

The Hon. CATHERINE CUSACK [9.26 p.m.]: As I understand Dr Kaye's comments, the 30¢ per kilowatt hour has been calculated because the Greens do not have any confidence in the modelling done last year by the Keneally Government on the grounds that the modelling was incorrect. The Greens preference is double the Government's 20¢, that is 40¢, but they feel that that is unrealistic and, therefore, the compromise is 30¢. The Coalition's view is that we should not arrive at numbers in that way as a basis for changing the legislation. We need to rely on modelling, and the modelling must be monitored and adjusted for what is happening in practice. That is where this scheme has gone off the rails. That did not occur. It does not mean the principle of starting off with modelling is incorrect. Indeed, I cannot think of any other way to project costs than by modelling.

As I indicated earlier, I sympathise with the case the Greens are putting, which is very empathetic to the industry. The industry is distressed about the consequences of a cut in the scheme. I do not know whether this will be a cut in the scheme. The go-ahead has just been given to construct a solar farm in Bathurst for which a price of 4¢ per kilowatt hour going into the grid has been obtained. They were very disappointed with the price. I believe they are putting in 40 megawatts. That will give members an idea of the difference between small and large-scale operations. As the Government said, the modelling needs to be adjusted as a result of the decline in the cost of panels. We are in a situation where we simply must accept the Government's figures and we do not support fiddling with the numbers in what we regard as crisis legislation.

Dr JOHN KAYE [9.27 p.m.]: I thank the Christian Democratic Party, the Coalition and the Government for their contributions. However, I want to correct a couple of things that were said. Just to make it absolutely clear to Reverend the Hon. Fred Nile, this has nothing to do with the State budget. The proposition is budget neutral. This is about household power bills, not the State budget. Unless somebody is proposing that we subsidise the scheme out of general revenue it will not touch the State budget.

What the Hon. Catherine Cusack said about how we came to the figure of 30¢ per kilowatt hour is not correct. I thought I had explained that, but I will do so once more. We said that the Clean Energy Council, the peak body representing most of the solar installers and a large proportion of the energy industry, is saying that the figure should be 45¢ a kilowatt hour. From what we have heard in the past and what we are hearing from the industry today, the figure should be between 40¢ and 45¢ per kilowatt hour. Being generous about it we say that we would prefer 40¢. That is the industry preferred figure. We understand that the Government wants 20¢ per kilowatt hour, and we are prepared to meet the Government halfway by proposing 30¢ per kilowatt hour, for one year, with a review to take place at the end of that year. From our understanding of the cost structure of the industry—and obviously we have not had a chance to do careful modelling—we think 30¢ per kilowatt hour is close to sustainable and will probably see the industry through.

With regard to the Hon. Catherine Cusack's last point about the 4¢ a kilowatt hour for the solar farm, I suggest that that solar farm is probably trading in the national electricity market, that it is not trading at a retail level. As the Deputy Leader of the Opposition will confirm, there is a huge difference in price between high-voltage electricity that is traded in the national electricity market and electricity that is traded at a retail level. It is a different kind of technology; it is not solar photovoltaic. My understanding is that the Bathurst plant is a solar thermal plant with different cost structures and different economies of scale. It is not really comparable to what we are talking about here, which is rooftop solar. I commend the Greens amendments to the House.

The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [9.30 p.m.]: First I will respond to the final comments of Dr John Kaye. I confirm that he is totally correct with regard to that aspect. On the surface of it, the Greens' explanation about the way in which the 30¢ a kilowatt hour figure was arrived at is compelling. The Greens say the figure is sensible, and that part of the problem is that we have an industry that the Government simply put too big a price on, and now that we have had the boom and bust it is exactly like what occurred in Spain. The problem is that we do not know—as the Hon. Catherine Cusack said, because we cannot get hold of the Government modelling—whether the 30¢ a kilowatt hour figure would take us into the situation as exists in Spain.

I know that members have read out emails and other documents about companies that are offering contracts. I received one this afternoon. I am a member of NSW Farmers Association. At 5.33 p.m. this afternoon I received an email headed "Urgent: Act now! NSW Solar Bonus Scheme closes midnight tonight". If the figure of 30¢ a kilowatt hour is wrong as well, we run the risk of loading electricity customers. As Dr John Kaye properly identified, funding for the scheme does not come out of the Treasurer's budget; it comes from electricity customers. At the moment 180,000 electricity customers are having trouble paying their bills, and we have to be cognisant of that fact. I wish we could say yes to the 30¢ a kilowatt hour figure. Like Dr John Kaye, I worry about the industry, but I also have concerns for the battlers in the energy market.

Question—That Greens amendments Nos 1 to 3 be agreed to—put.

The Committee divided.

Ayes, 6

Mr Borsak
Mr Cohen
Ms Faehrmann
Mr Shoebridge
Tellers,
Mr Brown
Dr Kaye

Noes, 26

Mr Ajaka
Mr Catanzariti
Mr Colless
Ms Cotsis
Ms Cusack
Ms Fazio
Ms Ficarra
Mr Foley
Miss Gardiner

Mr Gay
Mr Khan
Mr Mason-Cox
Mr Moselmane
Reverend Dr Moyes
Reverend Nile
Ms Parker
Mrs Pavey
Mr Pearce

Ms Robertson
Ms Sharpe
Mr Veitch
Ms Voltz
Mr West
Ms Westwood
Tellers,
Mr Donnelly
Mr Harwin

Question resolved in the negative.

Greens amendments Nos 1 to 3 negatived.

Schedule 1 agreed to.

Title agreed to.

Bill reported from Committee without amendment.

Adoption of Report

Motion by the Hon. Michael Veitch agreed to:

That the report be adopted.

Report adopted.

Third Reading

The Hon. MICHAEL VEITCH (Parliamentary Secretary) [9.42 p.m.]: I move:

That this bill be now read a third time.

Division called for and Standing Order 114 (4) applied.

The House divided.

Ayes, 28

Mr Ajaka
Mr Borsak
Mr Brown
Mr Catanzariti
Mr Colless
Ms Cotsis
Ms Cusack
Ms Ficarra
Mr Foley
Miss Gardiner

Mr Gay
Ms Griffin
Mr Khan
Mr Mason-Cox
Mr Moselmane
Reverend Dr Moyes
Reverend Nile
Ms Parker
Mrs Pavey
Mr Pearce

Ms Robertson
Ms Sharpe
Mr Veitch
Ms Voltz
Mr West
Ms Westwood

Tellers,
Mr Donnelly
Mr Harwin

Noes, 4

Mr Cohen
Ms Faehrmann
Tellers,
Dr Kaye
Mr Shoebridge

Question resolved in the affirmative.

Motion agreed to.

Bill read a third time and returned to the Legislative Assembly without amendment.

SURROGACY BILL 2010

Second Reading

Debate resumed from an earlier hour.

The Hon. DON HARWIN [9.46 p.m.]: While commercial surrogacy is prohibited in New South Wales, under section 43 of the Assisted Reproductive Technology Act 2007 there is no legal impediment to altruistic surrogacy. The absence of legislation against altruistic surrogacy has allowed it to occur through assisted reproductive technology [ART] clinics for many years, with the protocols governing the process determined by the clinics themselves. There is no question, therefore, of this bill legalising altruistic surrogacy in this State; rather it seeks to bring the existing practice within an appropriate framework of New South Wales government regulation.

ART clinics in New South Wales reviewed their protocols relating to altruistic surrogacy following the legalisation of the practice in the Australian Capital Territory in the late 1990s. Clinicians have expressed the view that the process can be further improved through legislation such as the Surrogacy Bill 2010 that is before us today. In formulating my view and preparing my remarks I am indebted to my good friend Miranda Montrone—a psychologist and family therapist who has worked in the areas of infertility and assisted reproduction for more than 25 years. Miranda is a well-respected professional in her field, having worked as an infertility councillor at the then City West IVF—now IVF Australia in western Sydney—and as a couples therapist at Relationships Australia.

In recent years she has presented numerous papers at conferences and made written submissions to parliamentary inquiries relating to surrogacy in South Australia, Queensland and New South Wales. I thank her for sharing with me her thoughts on the subject of altruistic surrogacy and these suggested legislative changes. Like many in her profession, Miranda Montrone believes that the practice of altruistic surrogacy has worked well in New South Wales, despite the absence of legislation, because of the rigorous processes developed by the ART clinics themselves. In her submission last year to the Standing Committee on Law and Justice Miranda explained:

… depending on the specific ART clinic the non-medical criteria for surrogacy treatment currently include independent psychosocial/mental health assessment and legal advice. In my experience this psychosocial and legal pre-treatment process works well [and] gives time, space and intensity for thorough consideration of the implications of the proposed treatment, and the space for a change of mind without rupture of relationships before treatment.

Pre-surrogacy psychological assessments currently required by ART clinics involve many hours of clinical interviews and consider such issues as relationships between the couples and the implications of surrogacy; commitment to and motivation for surrogacy and its unique demands; reproductive and infertility history; mental health history and current state; psychological and marital stability; implications for any existing children and risk factors; possibilities of complications such as relationship breakdowns, death and dealing with a disabled child; attitude to prenatal screening and termination; the issue of relinquishment; ideas about future relationships; intentions regarding disclosure and explanation to others; differences in parenting style; and awareness and acceptance of legal ramifications. While confident in the processes developed by their colleagues, clinicians and those involved in surrogacy arrangements have expressed support for the Government assuming a role in regulating altruistic surrogacy arrangements. Miranda Montrone, for example, commented in her submission:

There are parts of the surrogacy process which could be improved through legislation, mostly related to children born of surrogacy treatment and their parents, which would facilitate birth certificates (and Medicare cards, passports etc) and parenting arrangements, and which would validate the actions of all involved in the surrogacy proposal: the commissioning or intended parents, and the surrogate and her partner, if she has one.

The Standing Committee on Law and Justice made several recommendations as to how legislation could best improve and support existing ART clinic processes. The majority of those recommendations have been taken up in the bill. The committee's first recommendation was that the principal Act be amended to establish a requirement that parties seeking ART treatment to facilitate a surrogacy agreement are assessed for suitability by a counsellor independent of an ART clinic, and that ART clinics must take such assessments into account when determining whether to provide services. This recommendation is consistent with current best practice in the field of surrogacy in which formal, independent psychological assessments are considered necessary above and beyond the implications and supportive counselling provided in-clinic for other third-party reproductive treatment, such as donor gamete and donor embryo treatment.

This recommendation has been adopted in the proposed legislation. Similarly, the committee's third recommendation was to establish a requirement that all parties entering into a surrogacy agreement obtain independent legal advice. This has also been included in this bill. In recommendations Nos 6 and 7 the committee advocated a review and clarification of the prohibition on advertising and brokerage activity associated with surrogacy and the definition of commercial surrogacy. This was deemed desirable to reaffirm the prohibition on commercial surrogacy and to provide a clear indication of what reasonable expenses may be legally reimbursed to the birth mother in an altruistic surrogacy arrangement. The proposed legislation requires that the reasonable expenses be verifiable and involve such matters as medical expenses, legal expenses, counselling costs, travel and accommodation costs, and so forth.

The principal recommendation of the standing committee was the establishment of a transferral of parentage mechanism specifically for surrogacy arrangements. Currently, there is usually a presumption under the Status of Children Act 1996 that if a woman gives birth to a child, she and her husband or de facto partner are the child's parents. This presumption often presents considerable difficulty for people intending to become parents under a surrogacy agreement or who are raising a child as a result of such an arrangement. They commonly face problems obtaining a passport, having their child's name added to their Medicare card for the purpose of immunisation and other medical needs, and enrolling their child in child care and school. Such parents routinely face lengthy and arduous adoption processes or the temporary measure of a parental responsibility order from the Family Court. The uncertainty faced by such families under current arrangements is not in the best interest of the child involved. Currently, children may live in circumstances in which their parents do not have the full parentage rights with which to look after them. In her submission to the standing committee inquiry, Miranda Montrone argued that:

She also noted:

Ms Montrone further suggested:

... genetic information and birth history of offspring of altruistic surrogacy treatment could be held in the same Register which is being established for offspring of gamete and embryo donation in New South Wales.

Part 3 of the bill allows for a framework under which the Supreme Court may grant orders transferring full legal parentage of children from their birth parent or parents to the intended parents under a surrogacy agreement. Numerous preconditions and requirements for granting a parentage order are specified, with many of them deemed mandatory. These preconditions and requirements include counselling prior to the agreement of a surrogacy arrangement; counselling between the birth and the making of the parentage order for the birth parent or parents; receipt of legal advice by the intended parents from a practitioner separate from those advising the birth parent or parents; verification of a pre-conception surrogacy agreement in writing; and consent of all parties to the arrangement, including the birth mother's partner.

Under the Births, Deaths and Marriages Registration Act, the granting of a parentage order in regard to a surrogacy arrangement will result in the issuance of a new birth certificate that refers only to the child's intended parents. The proposed legislation provides that the original birth certificate will remain available to the affected parties and to the child once he or she has attained the age of 18 years. The bill also expands the existing registry for recording the information of gamete donors to apply to surrogacy situations. I am pleased to say that these provisions are all in accordance with the suggestions made by clinicians such as Miranda Montrone.

For the most part the preconditions and requirements for parentage transfer orders are either wholly or substantially in accordance with recommendations made by the standing committee—notably recommendation No. 8—or they relate to specific criteria about which the standing committee did not express a view. One exception is the requirement for the intending parent or parents to be residents of New South Wales. The standing committee decided not to include such a requirement in its recommendations, but it has been included in the proposed legislation to prevent so-called forum shopping in the event of discrepancies in eligibility and preconditions between jurisdictions. This regulatory framework is an appropriate, practical response to the existing process of altruistic surrogacy in New South Wales. By providing a mechanism in which parentage rights, in accordance with a regimen of strict conditions, can be transferred from birth parents to commissioning or intending parents, the proposed legislation gives clarity to families formed from a surrogacy arrangement and, importantly, promotes the best interests of children born of a surrogacy arrangement.

I note that under the provisions of the bill commercial surrogacy remains a criminal offence and that surrogacy agreements remain unenforceable. In her submission Miranda Montrone was strident in her objection to any proposal for an enforceable surrogacy contract by which a surrogate could be forced to relinquish a child born of a surrogacy arrangement. It is entirely appropriate that a birth mother have a brief period of time following the delivery of the baby in which to change her mind about relinquishment. Under the proposed legislation, intended parents can apply for a parentage order only from the thirtieth day following the child's birth.

Altruistic surrogacy is a tremendous gift for couples unable to bear a child themselves, usually because of either congenital abnormality, such as the absence of a uterus, or significant medical problems, such as a post-cancer hysterectomy or a highly significant history of reproductive loss. Altruistic surrogacy in our State has been practised within a framework of guidelines and requirements developed by a highly specialised community of reproductive and mental health professionals. This bill seeks to support the practice of altruistic surrogacy by providing our existing legal institutions and processes with the mechanisms necessary to appropriately recognise the families that are created as a result. Central to the objectives of the legislation is the advancing and safeguarding of the interests of the children born under altruistic surrogacy arrangements. Consequently, I support the bill.

Mr DAVID SHOEBRIDGE [10.00 p.m.]: On behalf of the Greens I support the Surrogacy Bill 2010. This bill is a good example of legislation finally catching up with reality in our society. We commend the Government and the Attorney General for bringing the bill before this House and Parliament. This bill is a step forward in providing legal certainty first and foremost for children born in a surrogacy arrangement, but also for their parents and birth mothers. At its core the bill enshrines the best interests of the child as the paramount consideration, as well as providing important protective provisions for the birth mother and other parties to a surrogacy arrangement. The bill provides for the recognition of altruistic surrogacy arrangements in clearly specified circumstances. It allows the Supreme Court to make binding parentage orders in favour of parties who have entered into an altruistic surrogacy arrangement. The bill operates to limit surrogacy to altruistic arrangements by expressly prohibiting any commercial surrogacy arrangements from being entered into. Clause 8 prohibits commercial surrogacy arrangements while clause 9 provides the following definition of a commercial surrogacy arrangement. It states:

The Greens see that as an extremely important element of the bill. It stops the commercialisation of surrogacy arrangements and is unambiguous in making a commitment only to altruistic arrangements. Currently, altruistic surrogacy laws allow for such surrogacy in specific legislation in the Australian Capital Territory, Queensland, Victoria and Western Australia. It is a promising sign that New South Wales is looking to these States in recognising altruistic surrogacy. I understand that South Australia also will introduce surrogacy laws. Unfortunately, unlike other jurisdictions, the laws being proposed or potentially passed in that jurisdiction will apply only to heterosexual married or de facto couples. Of course, that excludes same-sex couples from entering into surrogacy arrangements in that State. It means that children born to such an arrangement, which inevitably will occur, will not be able to obtain the protection of the law for their parental bonds. That is a great pity.

The Greens welcome that this bill is non-discriminatory in its application. In particular, it does not discriminate against any prospective parents on the basis of their sexual preference, gender or gender identity. The Greens consider this bill a sound companion to the same-sex adoption legislation recently passed by this Parliament. I place on record my hope that in due course the Commonwealth Parliament will move towards recognising same-sex marriage to deliver a progressive hat-trick for children, families and relationships in New South Wales. When similar surrogacy legislation was passed in Queensland, the Coalition Opposition in that State proposed amendments that would have excluded same-sex couples. Thankfully, those amendments were not passed and, despite the efforts of the Queensland Coalition, surrogacy legislation in that State gives the same rights to same-sex couples as they do to heterosexual couples. Two members in this House propose amendments that seek to make the same regressive amendments to the bill we are debating.

It is notable that both the New South Wales Opposition and the Government are granting their members a conscience vote on this bill. From my observation, such conscience votes typically occur in this Parliament on what the Greens as a party regard as progressive legislation; not necessarily matters of conscience, but matters of social regulation regarding what I have heard described as any legislation to do with sex. It would improve public debate in New South Wales if there were some clarity and honesty in the circumstances in which major parties allow conscience votes, but I will not say anymore on that at this moment.

The Hon. John Hatzistergos: Does your party give one?

Mr DAVID SHOEBRIDGE: No.

The Hon. John Hatzistergos: I didn't think so.

Mr DAVID SHOEBRIDGE: We are very clear on it. This bill recognises the modern reality of what is the family in our society.

Reverend the Hon. Fred Nile: No conscience votes in the Greens.

Mr DAVID SHOEBRIDGE: The traditional idea the Reverend might advance of the family being a breadwinning father, a stay-at-home mother, together with their 2.5 biological children, has changed substantially. Children are just as able to be loved and raised by a mum and dad, by two mums, by two dads, by a mum or by a dad.

Reverend the Hon. Fred Nile: Or three dads or three mothers?

Mr DAVID SHOEBRIDGE: Families come in all shapes and sizes. They always have. It is a welcome sign that if passed this bill will respect and acknowledge this social reality. It will provide an alternate and non-discriminatory framework to regulate altruistic surrogacy arrangements. Until now, the only way people with children born through surrogacy have been able to gain full parenting rights has been through the adoption processes, and they can obtain certain parental rights through orders obtained in the Family Court. Both processes can be complicated, lengthy and costly. Each is the subject of significant uncertainty for the applicants and involves wide discretions and legislation not tailored to the specific needs of the parents, the birth mother and the children, such as the bill we are debating. However, it is notable that this bill runs parallel with and does not exclude the adoption laws where those existing laws may provide an alternative workable solution.

It has been raised that these surrogacy laws could deter people from going through the adoption process or from even considering overseas adoption when discussing parenting options. It has been suggested also that given the high number of orphans in the world, it would be better for potential parents to consider adoption before surrogacy. However, this argument is less than watertight. It is expected that there will be a very modest number of applications under this bill and, in any event, it is not appropriate to fail to protect children of surrogacy arrangements in order to achieve some nebulous and academic impact on the numbers of local or overseas adoptions.

The overriding concern this House ought to have in considering this legislation is the best interests of all children, including those who will likely benefit from this bill if it succeeds. One concern raised repeatedly in this debate, although with little academic support, has been the potential psychological impact on children and birth mothers.

I will read from one of a number of reports that were delivered to the European Society for Human Reproduction and Embryology. This report, on the findings from one of the first controlled systemic investigations of surrogate families, was delivered to the annual conference of the European Society of Human Reproduction and Embryology in July 2002. The report, far from finding that surrogacy arrangements produced deleterious impacts, found that the mothers of children born by a surrogacy arrangement show more warmth towards their babies and are more emotionally involved than is the case in families where the child is conceived naturally. Both the mother and father have better parenting skills than parents in non-surrogate families and the babies showed no difference in their temperament and behaviour when compared with non-surrogate babies. Ms McCallum, a research psychologist at the Family and Child Psychology Research Centre at the City University of London in the United Kingdom, and her team questioned the commissioning mothers about the surrogate's reaction to handing over the child, about their own relationship with the surrogate following the birth and about their attitudes towards the surrogate's involvement in the child's life. Ms McCallum said:

It is often assumed that surrogate mothers will have difficulty in handing the child over following the birth. In fact, we found only one instance of the surrogate having slight doubts at this time, with all other mothers reporting no problems.

She went on:

Since the birth of the child, the majority of the families had kept in touch with the surrogate to some extent and 70% saw her at least once every couple of months. Ninety per cent of commissioning mothers reported that they still have a very good relationship with the surrogate, and no mothers described any major conflict or hostility between the commissioning couple and the surrogate. The concern about the commissioning mother's feelings about the surrogate's involvement with the child seems unfounded, with 90% reporting no anxieties about this aspect.

When the researchers looked at five different aspects of parenting they found that in four—warmth, emotional involvement and mothering and fathering qualities—the surrogacy families and egg donor families rated higher than families where the child was naturally conceived. As to the fifth aspect, the sensitivity of the mother responding to the child, there was no significant difference between the different family types. Ms MacCallum said:

It should be noted that the natural conception families—

That is a group of families used as a control measure in the study—

were all functioning well and were not getting low scores on these measures of parenting—rather the surrogacy and egg donation mothers were getting particularly high scores. These results are generally positive. The surrogacy families seem to be characterised by warm relationships and higher quality of parenting. The high emotional involvement of these mothers with their children can also be positive, although it is possible that it reflects some tendency towards over-investment in the child.

I do not suggest by citing this report that any one particular form of parenting, whether surrogacy or natural birth, is preferable to the other. I simply note that the report suggests no evidence of any deleterious impact on the children, the birth parent or the ongoing parents of children who are the subject of a surrogacy arrangement. I return to the bill before the House. Importantly, the bill recognises that the issue of surrogacy is a complicated one. It involves a number of people and deals with what can be and almost invariably will be extremely emotional issues. As such, a number of very important provisions in the legislation make sure that the arrangements are focused and centred on the best interests of the child and all parties make their decisions following mature reflection and with the assistance of legal and psychological protections and counselling.

I will refer to specific areas of the bill. First, a surrogacy arrangement must have been entered into by the surrogate mother, her partner, if any, and the intended parents before the conception. The agreement must be evidenced and in writing and the agreement is not to be legally enforceable. Intended parents will have no cause of action against the birth mother if the birth mother decides to retain the child in her care or to terminate the pregnancy. On the other hand, the birth mother will not be able to sue the intended parents should they decline to provide the care and responsibility of the child which they had agreed to. In effect, the agreement is evidence of prior consent, not a binding obligation. When one considers the practicalities of a birth mother not wanting to relinquish a child or the putative parents under the surrogacy arrangement not wanting to take on the obligations of parenting it is abundantly clear why that protection of not making the agreement binding is an essential part of this bill.

Second, the bill provides that all parties must have undergone counselling with an accredited counsellor in relation to the surrogacy arrangement prior to entering into the surrogacy arrangement and the birth parent or parents must have undergone counselling following the birth of the child. The need for counselling in these circumstances is self-evident and, again, is another important protection in the bill. Third, prior to entering into a surrogacy arrangement all parties must have received independent legal advice about the effects of the surrogacy arrangements. That is yet another important protection in the bill so that people do not enter into an agreement falsely assuming that it is binding or contemplating that they may receive a benefit, which, of course, is prohibited. Fourth, the arrangement must not be a commercial surrogacy arrangement. I dealt with this issue earlier in my address.

Fifth, there must be a medical or social need for the surrogacy. I note that this provision is intended to include, as the legislation in Queensland does, male singles and gay same-sex couples. However, female intended parents are required to demonstrate that they are unlikely to be able to conceive or safely give birth or are likely to conceive a child that would be affected by a genetic condition or disorder. In other words, surrogacy is not an option as a mere idle preference; it can arise only in a case of real and specific need. Sixth, an application must be made to the court at least 30 days after the birth but not more than six months following the birth of the child. However, the court has discretion to extend the period of six months in exceptional circumstances. Such discretion is entirely proper to leave with the court. No legislation can envisage all the individual circumstances that may be necessary to be considered in the best interests of the child. The discretion, of course, also will be exercised in the best interests of the child. The window of opportunity between 30 days and six months provides some opportunity for the birth mother to overcome the often emotional and physical effects of the birth. But it is not such a lengthy period that the child will develop a bond with the birth mother that would prejudice the successful outcome of the surrogacy arrangement. That is another important protective measure that assists in making this bill a successful one.

Seventh, the intended parents must reside in New South Wales. That is a necessary jurisdictional element. Eighth, the birth mother must be at least 25-years-old at the time of entering into the surrogacy arrangement. That seems a sensible provision: it provides for a reasonable level of maturity when undertaking such a potentially life-changing decision as entering into a surrogacy arrangement. I note that transitional provisions in the bill adopt, in limited circumstances, a lesser age of 18 in relation to prior altruistic arrangements before the commencement of the bill. The ninth area is that all parties to the surrogacy arrangement must have given their informed consent to the granting of any parentage order by the Supreme Court. Tenth, the child must be living with the intended parents at the time the application is heard by the Supreme Court. It is not at the time that the application is filed but at the time the application is heard before the Supreme Court. If the intended parents are not in a position to evidence that capacity before the Supreme Court this matter obviously would cause the court some difficulty in deciding on the best interests of the child. One can well understand why that provision is contained within the bill.

In addition to that, parties to the surrogacy arrangement must have provided the Director General of Health with sufficient information to be recorded on a central register kept in accordance with the Assisted Reproductive Technology Act, and of course the birth must have been registered under section 16 of the Births, Deaths and Marriages Registration Act or its interstate equivalent. Those protections are rigorous and well considered and will ensure that the best interests of the child remain at the centre of the bill, and any application that is heard by the Supreme Court, while providing appropriate protection for birth mothers and prospective parents who are the subject of surrogacy arrangements. The bill explicitly prohibits the practice of commercial surrogacy.

Those who oppose the bill and who have expressed particular concerns about elements of it should recognise that the bill contains a very rigorous and carefully thought out set of protective measures. Those who oppose the bill should also consider the alternative, which is leaving the field effectively open and unregulated. The goal of the Legislature when giving consideration to crafting a bill such as this is to consider social reality and the fact that surrogacy arrangements are happening and will continue to happen in our society, whether regulated by this Parliament or not.

What course do we want the arrangements to take? What direction do we want surrogacy to take in New South Wales? Do we want to ensure it is altruistic? Do we wish to ensure that the birth mother is of sufficient maturity before the arrangement is entered into? Do we want to provide a check and balance mechanism whereby we have an independent judge ensuring that the best interests of the child are satisfied? If we want those protections and if we want to regulate activity that is happening in our society the best and most positive measure by which to achieve that is this bill, which I strongly commend to the House.

The Hon. GREG DONNELLY [10.21 p.m.]: During my contribution to the debate on the Surrogacy Bill 2010 I will endeavour to craft my speech so that I do not cover ground that others have already covered in some detail. Instead I will try to focus on particular points to which I will give specific attention. A number of other members wish to contribute to the debate on the bill, and others have contributed already to this point. I have previously mentioned that laws made by this Parliament obviously are very important because they inform, educate, guide, direct and validate. They are not static on black-and-white printed pages of a statute book but, rather, have the very real purpose of contributing, in a very important way in my view, towards the cultural and moral tone of our society. I sometimes reflect on a comment we have all heard many times, "If it's legal, it must be okay." I will deal with that concept in more detail later.

For the moment I will digress slightly and discuss the contribution made by the Hon. Trevor Khan, who unfortunately is presently not in the Chamber. I state with some care and consideration that his earlier speech was quite a dishonest presentation to the House. He referred, in part at least, to a debate that was held in this House in 2007 with respect to the Assisted Reproductive Technology Act 2007, to the final outcome of the bill, and to the adjudication of this House. Essentially, he implied that as far as a number of speakers were concerned during debate on that legislation everything was fine and okay and that no particular concerns were expressed at that time. I paraphrase his comments which suggested that, to the extent that members did not raise issues at that time, he was struggling to come to terms with why there would be, as he anticipated, concerns expressed during this debate this evening.

Reverend the Hon. Dr Gordon Moyes: Surrogacy was not mentioned.

The Hon. GREG DONNELLY: It was partly covered by that Act, and that Act dealt with the issue of surrogacy. I do not intend to speak for other members because they can speak for themselves, but during the speech I made at that time I spent a significant amount of time outlining my concerns about that Act. I expressed particular concerns with respect to that Act regarding the potential of a scenario of children being born without, as I argued, the benefit of being raised by a mother and a father being endorsed by legislation. As I recall, a number of people spoke in similar terms during that debate. I went on further to state that in the end result we had to make a decision on the bill that was before the House. I stated during my speech:

A number of speakers during that debate made similar comments. If "dishonest" is too strong a term, perhaps "disingenuous" is a better way to describe the contribution made by the Hon. Trevor Khan this afternoon. Basically, he implied that in 2007 members of this House gave the legislation a big tick, and for that reason he could not quite come to terms with why people were expressing concern during this debate.

In the matter of human relationships, if I may use that term, there is a range of views about the extent to which legislatures should attempt to influence or regulate them. I do not need to canvass the whole range of human relationships because there are many. Suffice it to say that they vary from relationships that have little or no regulation through to detailed and comprehensive relationships. In the realm of lawmaking, there is often a contest between less versus more with respect to statutory oversight and regulation. It must be said that this debate is not new and the determination of this bill by the Parliament one way or the other, or amendment of the bill, will not be the final say on this matter in New South Wales.

In a recent debate in this Parliament over the issue of same-sex adoption I made some comments that in my view have particular relevance to this debate. I stated on that occasion that where the family goes thus go our communities and society. As I stated at the time, I do not claim credit for originality of thought or the specific words. However, I believe that what is behind those words is so intrinsic, because of who we are as human beings, that it is axiomatic. In my view, within our human nature lies an unchanging truth that in its essence we cannot change or amend. To put it another way: it is who we are; it is what we are.

Furthermore, if there is something intrinsic about what constitutes a human being, in my view there is something intrinsic about what constitutes a human family or a family of human beings. I would argue that this is something which is permanent over time and is unchanging. Arguments have been advanced in relation to this topic this evening and I am sure it will be argued by others at a later stage. Alternatively, when we are examining the notion of family, in reality what we are dealing with is a concept that, by its very nature, is elastic and malleable. It is also subject to ongoing human and legal definition, and redefinition over time. It seems in terms of that definition over time that there do not seem to be any parameters that anyone has been able to put forward about the scope of that definition and redefinition.

Having listened to the considered contributions of members of the House, this is clearly a touchstone issue. Debates such as this are clearly challenging and they are, by definition—and I do not think anyone will contest this—emotional, layered in nuance, personal, familial, technical and legal. I could go on. Each speaker in this debate has brought their thoughtful contribution to the House and prosecuted their arguments as thoroughly as they could. That much is very clear to those who have participated in or watched this debate.

As honourable members may be aware, I served on the Standing Committee on Law and Justice that examined this matter in 2009. I read all the submissions to that inquiry, I attended all the hearings and I read the evidence of the witnesses published in Hansard. I do not intend to canvass in detail this evening my position on the principal and associated issues before the House. I direct anyone who is particularly interested to report No. 38 of the Standing Committee on Law and Justice entitled "Legislation on Altruistic Surrogacy in New South Wales", which was tabled in this House on 29 May 2009. I unequivocally stand by the comments that I made in my dissenting statement, and for my position on a range of issues I draw the attention of members to the minutes of the deliberative meeting on 18 May 2009, which is attached to that report.

Central to my concern about this bill is that, contrary to what some speakers have articulated, I believe that it is very arguable—in fact, I believe it is the case—that the net outcome of this bill is that it contributes to the fragmentation of the natural biological origins a child and his or her biological heritage. I believe as a society we are now starting to see evidence of that. Assisted reproductive technology techniques—and surrogacy is one of many such techniques—was first commercialised in Australia in the early 1990s. In this country and in other countries that were a little ahead of us in this area—for example, the United States of America and parts of Europe—people born from assisted reproductive technology are now young adults, entering their twenties and getting older.

Surrogacy cannot be taken out of the whole issue of assisted reproductive technology. I know that we are looking specifically at surrogacy tonight, and I do not intend to segue into something that is not relevant, but in relation to the issue of assisted reproductive technology and its impact on people it is imperative that we consider the findings of the research that is being conducted—not research that is back-of-the-envelope canvassing of people's thoughts but serious peer-reviewed research and publications. In addition, we must consider the reality of people who were born as a result of assisted reproductive technology who are now reaching adulthood and speaking out very publicly, not just as individuals articulating the circumstances they find themselves in from being born of this method, but though organisations that they are forming in order to campaign openly against practices such as surrogacy.

My first experience of dealing with an individual who falls into that category was a couple of years ago when I had the opportunity to converse with a young woman named Myfanwy Walker, who is from Victoria and is particularly active in an organisation called TangledWebs. Branches of TangledWebs are found in various parts of the world, and Myfanwy is a member of the Australian chapter. The organisation brings people together to share their stories of being born of assisted reproductive technology and how that practice has impacted on them in a very real and human way. Myf Walker wrote an article for the spring 2006/summer 2007 edition of a magazine called the Australian Rationalist in which she reflects on her experience as a young woman born of assisted reproductive technology and how it has had such a profound impact upon her. The article is found on pages 23 to 27 of that edition, and I do not intend to read it out. But I believe people who have an interest in this area will find it worthwhile to read Myf's story.

Myf Walker is not a person of faith—she does not believe in God and she has no traditional religious grounding; she is simply a woman who is speaking out about her real concerns about being born of assisted reproductive technology. I will quote a couple of sections from the article. Myf was born of assisted reproductive technology and was 20 years old before she was able to make contact with her biological father. Up to that age she was raised by a man who, for all intents and purposes, she knew as her father; she did not know that her biological father was another man. I will pick out a couple of quotes that drove her situation home to me. She says:

expectations of who and what should or shouldn't matter to me

who is her biological father, the sperm donor—

She also says:

That is when Myf had her first opportunity to meet her biological father. I will not read any more, but if honourable members want to get some insight into the real impact of assisted reproductive technology on people born of it I recommend that they read material from people like Myfanwy Walker. I will move on to a report that I do not intend to cover in detail this evening. It is a report that was published in May this year by an organisation called the Commission on Parenthood's Future. The title of the report is "My Daddy's Name is Donor: A New Study of Young Adults Conceived through Sperm Donation".

As far as I have been able to establish, the report is the first of its size to look at the impact on children being born of assisted reproductive technology in a thorough and scientific way. The report is 135 pages of tightly typed print, and it contains page after page of interview comments from mainly young adults who, frankly, poured out their hearts about the great hurt and pain they felt while coming to some sort of understanding about the basis upon which they were born and their reflections on how, particularly through their early adolescent years—I am talking from the ages of 10 and 11 through to 15 and 16—they were deeply torn by not knowing who they really were in terms of their biological essence, their biological roots. The press release associated with the report states:

obviously that is the American situation—

itself

This study is not a fit-up of a study undertaken with a predetermined outcome and that simply puts forward a position for ideological reasons. This survey work has some substance and integrity, and they are heartfelt words spoken by these individuals. Reverend the Hon. Dr Gordon Moyes, in his presentation, made some comment about an article written by a well-known Australian bioethicist who resides in Canada, Margaret Somerville. Her name is probably known to some members of this House. She visits Australia from time to time. It cannot be said that Margaret Somerville comes at this whole debate, discussion and reflection with a religious paradigm to try to impose on people; she is simply looking at where this is all going. In March this year Margaret Somerville presented at a symposium in Slovakia a paper entitled "Children's Human Rights to Natural Biological Origins and Family Structure". Reverend the Hon. Dr Gordon Moyes referred to aspects of that paper and I do not intend to repeat what he said. I simply draw the attention of members to the paper. One paragraph encapsulates the issue that we cannot escape and which we must face. Margaret Somerville puts forward her view about what she believes is most appropriate when looking at the issue of assisted reproductive technology. On page 9 she says:

That phrase about wanting and having a right to know about natural biological heritage was used constantly by people looking at this matter carefully and trying to reflect upon it, and by people who were born of this means.

The Hon. Rick Colless: How many chapters have you got?

The Hon. GREG DONNELLY: I do not have many examples; I simply ask members to bear with me. The next example was raised in this debate. I will give the reference to this particular Family Court judgement because it is a classic example of the bind in which society finds itself when it opens up, in quite a laissez-faire way, the whole area of assisted reproductive technology. The case has been referred to as the E case, but the actual title is Wilson and Anor & Roberts and Anor, [2010] FamCA 734. To summarise the decision, basically, a lesbian couple and a gay couple entered into an arrangement whereby one of the gay males, every other month, provided sperm to fertilise one of the lesbian women. The arrangement was—it was understood up front—that if the woman fell pregnant and had a child, the gay couple would stand aside and the lesbian couple would raise the child. However, as these things play out, once the child was born the gay males found that they had enormous affection for the child and insisted on exercising their right to have a relationship with the child. Ultimately, the Family Court had to sort out the rights of the child, the two-year-old boy, vis-à-vis the two men and two women.

It is worth reading this decision because it goes to the heart of the complexity of these issues. Once the genie is out of the bottle, how do we set boundaries with regard to the rights of the child? We have heard time and again this evening that the child must always be the primary consideration. I will provide one final example. Once again, I am not being frivolous in using this example; I am simply trying to illustrate the complexity of the issue. The article is in that well-known journal of record, the Australian Women's Day. I do not say that with tongue in cheek.

The Hon. Luke Foley: Do you subscribe to it?

The Hon. GREG DONNELLY: It came my way. I do not subscribe, but someone did send me a copy. The article relates the circumstances of a lesbian couple who are expecting quintuplets who were conceived using sperm procured from the United States. The article relates the women's joyous experience and their excitement about having the children, and I appreciate their strong feelings. What I find particularly interesting are statements about the children's rights to have contact with their biological father and other father figures. The article states:

As for the criticism about their babies lacking a father figure, Rosemary is adamant there'll be no shortage of male role models.

"Mel's dad is very involved with Lilly—

the couple's one-year-old daughter—

and we have plenty of strong male influence in our lives with brothers and friends." … "We will choose godfathers, and we have a loving extended family, these babies will be fine."

The reality is that statements like that are being contested, not only when children born of these procedures reflect on their life but also in academic literature. We must be mindful of that. We would do this debate a disservice if we failed to discuss these issues or pretended that they do not exist.

I draw the attention of the House to another point that is relevant to this debate. It is something that is not being considered closely enough. I am sure people will have different views on this issue and the Standing Committee on Law and Justice covered it briefly in its report on surrogacy. I refer to the question of the rights of the child and, in particular, those rights as they relate to international covenants and declarations to which Australia is a signatory. I will make specific reference to the 1989 Convention on the Rights of the Child. I am sure that members are familiar with the convention. It contains two articles that are relevant to this debate. Article 7 provides:

The use of the words "as far as possible" must be understood. The provision refers to circumstances such as the death of a parent. It clearly refers to the right of a child to know and to be cared for by his parents. I know members will say that "parents" is a generic term and that it can mean whatever we want it to mean. However, the reality is that "parents" in this instance refers to a mother and a father. Article 8 provides:

States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. If this legislation were to be enacted, I would argue that this Parliament would be breaching rights under that convention.

Members have referred to the child's right to have a mother and a father. I have mentioned this point previously and it has been raised by other members, but I will return to it briefly by linking the Attorney General's second reading speech to a comment made by Mr David Shoebridge. The Attorney General stated:

The bill also requires for a parentage order to be granted that there must have been a "medical or social need" for the surrogacy arrangement. This requirement restricts the grant of parentage orders to surrogacy arrangements that have been entered into because the intended parent or parents would not otherwise be able to have children. To meet this requirement where a woman, single or as part of a couple, seeks to become a parent through surrogacy, she must be unable to conceive or carry a child on medical grounds or likely to conceive a child affected by a genetic condition or disorder passed down by her.

The Attorney General goes on to say:

A single male or a male couple will automatically meet the requirement of "medical or social need'', on the basis that men in such situations cannot conceive a child without the assistance of another party.

It is extraordinary that we are contemplating a provision which has such automaticity. The mere fact that one is a single male or a male in a couple relationship means that one is automatically able to utilise the provisions of this legislation. However, if a woman cannot establish fertility issues or a hereditary condition, she is prohibited from utilising those provisions. I ask members to think about that. It is a bizarre situation. The few people to whom I have spoken about this legislation outside the House—ordinary folk, not lawyers—find this provision extraordinary.

Returning to the question of a mother and a father, I acknowledge up-front that there are members in the House and in the community at large who have a different view to mine and I accept that. Often their starting position is that an adult—or, indeed, adults who may be paired off either heterosexually or homosexually—have a right to a child or children. Indeed people who have been following this debate about ART and its related matters would be well aware that in the United States of America and elsewhere the polygamy and polyandry movements, while currently small, are vigorous and stridently argue their case in the public square. Only time will tell whether their position will ultimately translate into laws and related entitlements.

I also acknowledge that arguments are being used that if an adult or adults cannot access gametes that an individual has donated then that adult or adults are being subjected to discrimination, a proposition which I do not accept. In the end the threshold issue of the right of a child to be brought into the world and raised by a mother and father cannot and will not go away. I do not pretend that this is an easy matter for people to change their position on, and I do not believe they will. I understand that many adults want to have a child or children but in my view those people must accept that a child brought into this world has a right to be raised by a mother and a father. It will not do to use deconstructionist arguments that there are dead-beat dads and mums who may drink too much and, therefore, all we need to consider is that a child is "loved and cared for"—a phrase that I hear time and again in similar debates.

While superficially appealing, I would argue that line of argument does not face up to or address what we know in our heart of hearts is true: motherhood and fatherhood are profoundly unique in their very nature and that we as a society should do everything we can to ensure that a child gets the opportunity to be raised by a mother and a father if at all possible. In my view, children need both a mother and a father and we should not shirk the responsibility of asserting that loudly and clearly. The fact of the matter is that gender does matter with respect to the rearing of children. I agree with the well-known American family scholar Dr James Dobson, who was quoted a few years ago in Time:

In my view, sentiment and feelings should not be the key drivers of this debate. Over the past 20 to 30 years social science generally and child psychology specifically have given us rich insights into the unique and particular contributions that mothers and fathers make to the rearing of children. Time does not permit me to cover in detail—and I do not intend to do so—what we know about the importance of mothering and fathering to children. It is true to say that the influence of mothers with respect to their children is almost intuitively appreciated and has been studied seriously by social science for many decades. However, what we are coming to understand now is the significant impact that fathering has on children.

For those who are interested, many good books and academic papers examine that issue in a high level of detail. I do not intend to go through all the research and data, but I will refer to Dr Kyle Pruett of Yale medical school in his book Fatherneed: Why Father Care Is as Essential as Mother Care for Your Child. Pruitt says dads are critically important simply because "fathers do not mother". The journal Psychology Today explained in 1996:

Peer reviewed research makes the same point: fathers and mothers matter; they both matter. I appreciate the point that those who hold an alternate view to mine will cite different research and findings and that is no surprise. I invite those people to look at a range of books, the titles of which I will not read out, but I am happy to provide them if members are interested. Research in those books and a host of other books and academic articles show that the roles of both mothers and fathers are unique and indispensable to the rearing of children.

The truth of the matter is that as outlined in the Commission on Parenthood Future's report titled, "The Revolution in Parenthood: The Emerging Global Clash Between Adult Rights And Children's Needs", which was referred to earlier, we find ourselves particularly as legislators in a situation where we have to make judgements between competing interests: the claims of adults and the rights of children. It is my view that we must be very careful to ensure that the rights of children are clearly understood in the community and that we as lawmakers protect those rights.

I acknowledge the hard work of the Attorney General in putting together this bill. I know from my experience in raising matters with the Attorney General and from others who have raised issues with him that he was very open and fair minded to look at various ideas and thoughts people put forward in relation to the crafting of the bill. In some sense though, I would argue, the framework set by the Standing Committee of Attorneys-General [SCAG] and used by the Attorney General to craft the legislation that is before this House in my view is flawed. It is also my view that those flaws in the framework have flowed through to this bill. I appreciate that the Attorney General has been working within the framework set by SCAG, but I will not be able to support this legislation because in my view the Attorney General has been hampered—and I say that respectfully—in being able to canvass a number of other issues but for the framework set by the SCAG for the consideration of this matter.

In this debate we have heard, and we will hear time and again, that surrogacy legislation at its heart is all about the child's best interests. This paramount principle is cited as a fundamental consideration of the legislation. I am concerned that this legislation is, in my view, through its operation giving significant consideration to the exercise by adults of their personal autonomy. Indeed, I would argue that this legislation, by legalising surrogacy, will facilitate children being born via this Assisted Reproductive Technology procedure. This, I think, is the key issue that we cannot avoid considering. By formalising surrogacy through legislation, we are saying to society at large that the practice is okay and that it is good for all the parties concerned—the commissioning parent or parents; those who provide the gametes, that is the ova and sperm; and the child who is the product of the surrogacy procedure.

The fundamental question is: Is this okay? Yes, it occurs. People enter into all sorts of arrangements like surrogacy, both inside and outside of legal frameworks that may be created by the legal legislature. That has been the case up until now and I believe it will be the case in the future. For me the question is: Should the Parliament through legislation sanction such arrangements? Having been a member of the standing committee that examined this issue in detail, I am not convinced that surrogacy should be supported by the legislative framework that is being proposed here. I believe that there is mounting evidence that children born of surrogacy arrangements are experiencing a range of very deep personal human suffering and grief, arising directly from the circumstances of their birth. I believe that it is an absolute tragedy that this Parliament is not even giving due recognition to the reality of this suffering that is expressed and documented in peer review journals and publications, let alone taking steps to care for the affected individuals. I find it extraordinary that the same people who politically fought so hard to secure an apology for Australia's indigenous stolen generation turn a blind eye to the very real predicament of many fellow citizens in this State. I think that is unacceptable. I am not in a position to support the bill in its current form. I foreshadow that I will be moving some amendments to the bill when it is considered in Committee.

The Hon. MARIE FICARRA [11.12 p.m.]: I speak on the Surrogacy Bill 2010. I am pleased that the Liberal Party and The Nationals have granted a conscience vote to their members on this very important issue. Because of the late hour, I will not reiterate the objects of the bill; other speakers have referred to them in detail. I wish to congratulate the Hon. Greg Donnelly and Reverend the Hon. Gordon Moyes on their very thoughtful, courageous, sincere, passionate and well-researched remarks.

I have carefully considered the report of the Standing Committee on Law and Justice on altruistic surrogacy, and I note that New South Wales legislation has failed to keep up with scientific technological advances that have taken place over the past 20 years. I came to that realisation after reading an article in the Australian on 11 August 2009. The article entitled "Couple battle to adopt own son", which was written by Caroline Overington, stated:

A Sydney couple will have to apply to the NSW Supreme Court for permission to adopt their own son, after the Family Court found that, in the eyes of the law, he was not theirs.

During its inquiry into altruistic surrogacy the Standing Committee on Law and Justice heard from a range of stakeholders, including the Attorney General's Department, the Department of Community Services, the Department of Health, two major fertility clinics, Sydney IVF and Next Generation Fertility, the Catholic Church and the Anglican Church Diocese of Sydney, the Australian Christian Lobby, the Australian Family Association and the Gay and Lesbian Rights Lobby. The committee also heard from many support groups and professionals working within the area of surrogacy and academics.

The report noted that a child could be negatively affected by being removed from his or her birth mother and raised by non-biological parents and might experience genealogical bewilderment through not knowing his or her genetic background by virtue of the complexity of the family structure in which he or she exists. This family structure potentially could include up to six people who could be called the parents of the child: the birth mother and her partner; the intending parents; and the gamete donors, where donated gametes are used in conception of the child. In addition, some inquiry participants were concerned that outcomes for children born through surrogacy arrangements were largely unknown and so the practice represents an unethical form of social experimentation in which the subject of the experiment, the child, has not and cannot give his or her consent. Some inquiry participants argued that the primary effect on a child's wellbeing came not from the former family in which he or she existed, but the functioning of that family. That is, what has the greatest impact on a child's wellbeing is not that the child is genetically related to parents raising him or her or whether the mother raising the child is also the birth mother, but the quality of the relationship that the child has with the parents.

Concerns were expressed in relation to the birth mother and her ability to give informed consent to the surrogacy arrangements, and some inquiry participants were concerned that prior to conceiving a woman is unable to predict how she will feel about relinquishing the child she will carry and to which she will give birth. Furthermore, witnesses gave evidence that a birth mother could emotionally be coerced into participating in a surrogacy arrangement, particularly in circumstances where she had a close relationship with the intending parents and the pressure of family and friends' expectations could impede her ability to give informed consent. However, other inquiry participants argued that the available evidence does not support the view that birth mothers have difficulty relinquishing the child born through the surrogacy arrangement and that appropriate counselling assists them to make a clear distinction between a child that is their own and a child they are carrying and to whom they are giving birth for the intending parents.

The bill provides for many sensible changes to the current process where children born through surrogacy have only been able to obtain full parenting rights through the adoption process along with parenting orders, making it easier to enrol surrogate children in school, to make decisions about healthcare and to apply for passports for them, just to name a few common areas for parents. Parenting orders would also ensure that children born of surrogacy arrangements would have access to inheritance rights and be eligible for compensation after a parent's death or injury. The laws will apply retrospectively to parents who are now lawfully raising children under the age of 18 if the court is satisfied that the arrangement that was entered into prior to conception was not a commercial transaction and that all parties concerned gave consent—all sensible and reasonable. However, including the right for same-sex couples and single persons to surrogacy is going too far, and this Keneally Labor Government knows that this aspect would be unacceptable to many members in both Houses, as it is with major religious and spiritual organisations and churches in New South Wales. Why press the issue and make this bill so divisive? Clearly, there is an election coming up. This is a desperate Government in its dying days, appealing to the Left and the Greens, and it is obvious to all.

I note the advice to the House of the Hon. David Clarke, who expressed concern that the committee rejected his motion, which was supported by the Hon. John Ajaka and the Hon. Greg Donnelly, that the State Government give consideration to amending the Assisted Reproductive Technology Act 2007 to incorporate a conscientious objection provision for practitioners and employees in the assisted reproductive technology industry, so that they are not obliged to be involved in procedures and programs to which they object and will not be disadvantaged by exercising their right to conscientious objection. I further note the comments of the Hon. Greg Donnelly in his adjournment speech on 26 November 2009 regarding his concern about deficiencies of the inquiry and its findings. I have also tried to give due consideration to the large amount of correspondence and calls I have received on this issue.

I believe that there is nothing sadder or more traumatic than a husband and wife or a de facto couple who have difficulties conceiving. I acknowledge that to date the only way for people with children born through surrogacy to gain full parenting rights has been through the adoption process, and this is a long and difficult road with few children available for adoption. I support reform in this area insofar as I support a married or de facto couple being able to properly claim parental rights without the need to go through the restrictive and often futile adoption process.

Legislating that the birth mother be at least 25 years of age and that she, along with the intending parents, receive legal advice and, importantly, counselling before parental orders can be obtained, is generally supported in the community at large. Commercial surrogacy and any associated advertising remain an offence, and that is important in discouraging persons with motives that are not in line with the best interests of children involved in the surrogacy process. Providing birth mothers with an ability to recover the medical and counselling costs involved is supported as reasonable and fair.

While I support the bill to the extent that I believe a married or de facto couple should be able to establish parentage without going through the adoption process, I stress that, as legislators, our paramount consideration should always be the rights and best interests of the child. I also have specific regard to the provisions of the Status of Children Act 1996, particularly part 3, division 1, establishing parentage presumptions. I do not support any erosion of this important legislation.

I have previously stated in this place that deep in my heart, my brain and my soul I believe that the optimal care for children consists of a family with both a mother and a father, a man and a woman complementing each other in their parenting roles and imparting their physical, emotional and psychological attributes to the children in their care. Accordingly, I do not support surrogacy procedures being used by same-sex couples as I simply do not believe that this is in the best interests of the child. Even though we can all point to bad examples of heterosexual parenting through our own life experiences, on the whole throughout history—and this is overwhelmingly reflected in community opinion—having a mother and a father gives children the best start in life.

This legislation will strengthen the position of intending parents in a surrogacy birth. Any process in which heterosexual couples can obtain a formal parenting order quickly after the birth of a child through surrogacy, and that recognises the rights and obligations that flow in the same way as follows a normal birth, is welcomed. However, I believe that some parts of the bill are contrary to the best interests of the child. Current law recognises that children are vulnerable and that their welfare must be considered above the desires and preferences of adults. Allowing same-sex couples or single persons to commission a child through surrogacy would contravene a child's right to experience both mothering and fathering. It is incumbent on the State to take a cautious approach in this area of reform and, unless this aspect is voted on separately to the rest of the bill, I cannot in all conscience support the legislation.

Reverend the Hon. FRED NILE [11.23 p.m.]: I speak to the Surrogacy Bill 2010 on behalf of the Christian Democratic Party. I will be voting against the bill and, if the bill passes the second reading, I foreshadow moving amendments to it in Committee. I am opposed to the bill because it will in fact legalise same-sex homosexual surrogacy in New South Wales.

It seems that in the past few weeks we have dealt with a rush of bills with a similar theme. I wonder whether there has been some preference deal done by the Australian Labor Party with the Greens—because, as members know, the Greens party is a political wing of the homosexual movement—to have certain bills passed by this Parliament before the end of the year and before the election in March next year, in anticipation that the Labor Party will lose the election and the Coalition will win it. They view may be that such bills may not be accepted by the Parliament under a Coalition government and so, to be on the safe side, somebody has, or some people have, decided that this year bills relating to same-sex homosexual relationships, same-sex homosexual adoptions and same-sex homosexual surrogacy should be brought before the Parliament. The Attorney General reinforced it in his briefing paper in an important provision of this bill. He said:

I note the term "social need". The Attorney General continued:

Where there is a female intended parent, she must demonstrate that she is unlikely to be able to conceive or safely give birth, or is likely to conceive a child affected by a genetic condition or disorder. Male singles or male same sex couples will automatically meet the definition of "medical or social need" as they are unable to give birth.

Shock, horror! Has the Attorney General just discovered that two men cannot give birth to a child? It has always been a fact that homosexual relationships are sterile; they cannot produce a child. Children are only produced by male and female relationships. But to get around that problem the bill refers to a medical or social need. The social need seems to relate to people—homosexual men—deciding, "We want to have a child." That is obviously their social or emotional need, but there is no medical or other reason why they should be given that right. That is the main reason for my opposition to the bill.

There is also some confusion in the community—perhaps not in the Attorney General's mind—about surrogacy law. The Standing Committee on Law and Justice acknowledged at page 9, item 2.24, of its report into altruistic surrogacy that New South Wales has limited legislation relating to surrogacy. In fact there is no real legislation legalising surrogacy in New South Wales. The Assisted Reproductive Technology Act 2007 prohibited commercial surrogacy and made altruistic surrogacy arrangements legally unenforceable, which is a way of not giving them approval. Consequently, in the mind of the layman—and certainly in my mind—it would be assumed that surrogacy is not legal in New South Wales. The medical director of IVF Australia, Peter Illingworth, stated:

New South Wales law ruled that the legal mother of any child was the woman who gave birth to that child.

That is the law of New South Wales. The law does not recognise surrogacy because surrogacy transfers a child from the birth mother to two other people, and as a result that principle of law is breached. The bill will make it possible for another person in due course to become the legal mother of the child although that person was not the birth mother of the child.

I acknowledge that the bill has many positive aspects designed to provide protections for those who enter into a surrogacy arrangement. One is that a surrogacy arrangement must be entered into by the surrogate mother, her partner, if any, and the intended parents prior to conception. This agreement must be in writing. However, these agreements will not be enforceable; that is, if the birth mother decides to retain the child—which is not only possible, but often happens—the intended parents will have no cause of action against the birth mother if she decides to keep the child or, worse still, abort the child. Also, there is a requirement that all parties have undergone counselling with an accredited counsellor in relation to the surrogacy arrangement prior to entry into the surrogacy arrangement, and the birth parents must undergo counselling after the birth of the child. I would support most of the protections, but I question whether they will operate effectively in reality and how the protections would be enforced. It seems to paint an idealistic world to say that all these things will happen, one by one. I have my doubts.

The bill continues the prohibition on any commercial surrogacy arrangement. But, as has happened in other countries, once the bill passes into law, will there be any prohibition on advertising? People will interpret the bill as legalising surrogacy and think, "If it is legal, I can advertise surrogacy arrangements." This is happening in clinics, usually very discreetly, without any great publicity. The Government has been aware of that. One would hope that at least the Department of Health would supervise the operation of those clinics to ensure that they comply with all proper health requirements. However, a number of surrogacy activities have been taking place in the clinics. That is an obvious fact. Clinics could argue, "There is no law prohibiting surrogacy arrangements, so we will advertise them." Passing the bill will open the door to surrogacy arrangements. I believe no current law, certainly none proposed by the bill, prohibits advertising that promotes surrogacy, whether the advertising is by clinics or somebody acting for a mother who wishes to become part of a surrogacy arrangement under which she would bear the child and when it is born hand it over to the surrogate parents.

It is a pity that the Government has included the same-sex arrangement in the bill. That has clouded the issue, and probably will increase opposition to the bill. In a sense, that is not very good politics on the part of the Government. However, I understand pressure is being exerted behind the scenes, and that is confirmed by the very strong speeches made in this debate by those representing the Greens political party in this place. Many statements have been made in opposition to the bill, particularly by Chris Meney, Director of the Life, Marriage and Family Centre for the Catholic Archdiocese of Sydney. He is said to be "equally concerned about the surrogacy bill and warns that it establishes a concept of social infertility, as distinct from clinic infertility, that privileges men above women." Chris Meney says:

The Catholic archdiocese article says:

we are not so naive to think the male couple would not be homosexual partners

Chris Meney said:

He also points out that the bill in its present form potentially violates the United Nations Convention on the Elimination of All forms of Discrimination Against Women, which requires equality of men and women before the law with "special protection" of motherhood. This bill discriminates in favour of two males over a female. I am surprised that female members of this House have not identified that fact and indicated their opposition to that aspect of the bill. We hear many speeches made in this place that are based on the desire of women, which I support, to have equality with males—equality in job opportunities, and so on. The bill takes away that equality. The Catholic archdiocese article paraphrased Mr Meney:

That statement is supported by other leaders in New South Wales, and is obviously supported by the Christian Democratic Party. It is supported also by the Australian Christian Lobby, which has issued a number of statements that are critical of the bill, and said in its statement:

The Salvation Army has issued a statement in which it says:

That was said in the submission to the New South Wales Law Reform Commission Review of Adoption of Children Act 1965. The statement continues:

I agree with that statement. I propose to move amendments to the bill. In a number of places the bill refers to "intended parents" but the key section of the bill is contained at page 13. I say this in case some people have not identified that this bill will legalise same-sex homosexual surrogacy. Clause 28 is headed, and provides:

Medical or social need for surrogacy arrangement must be demonstrated

(i) a man and an eligible woman, or—

No-one would disagree with that

The two men, given what is happening in contemporary society, would be two homosexual men; and I assume the "2 eligible women" would mean two lesbians. That is a major aspect of this bill, and I will move amendments to omit that section and other related sections to ensure that the bill deals with only heterosexual surrogacy arrangements that involve a male and female as the intended parents. I oppose the bill.

Ms CATE FAEHRMANN [11.39 p.m.]: I support the Surrogacy Bill 2010 and I congratulate the Attorney General on the thoughtful work that has gone into this important piece of legislation. The bill represents an important step in providing a supportive legislative framework for altruistic surrogacy arrangements, one that gives certainty and clarity to those individuals and couples who choose to have a child and the women who give them that choice by offering to carry the child. It also serves the important purpose of finally allowing children conceived and born under a surrogacy arrangement to live with parents who have the full support of the law in caring for and making decisions on behalf of and in the interests of that child.

We debate this bill in the knowledge that altruistic surrogacy already occurs. There are many children living today with parents, both heterosexual and same sex, who saw that child conceived and borne through a surrogacy arrangement. I welcome the fact that the bill does not seek to impose limits on couples that can access parentage orders nor on the form of conception that may be used in a surrogacy arrangement. I also welcome the fact that the bill does not seek to propose discriminatory eligibility criteria, ensuring same-sex couples are also able to access parentage orders. The Government should be congratulated on ensuring there is minimal State intervention in these matters. The Greens support a legislative situation that reflects and acknowledges the needs of families and communities and that takes direction from them, rather than tries to prescribe an idea of what it means to be a family, or indeed what it means to be a parent.

The bill clarifies the rights of birth mothers engaged in a surrogacy agreement. It preserves the status of birth mothers as the presumptive parent, although I note that this was an issue of some contention for members of the Standing Committee on Law and Justice. The suggestion that a woman should be obliged, having borne a child under a surrogacy arrangement, to give up that child is not one I could support. Women who choose to become surrogates must retain the ability to make choices about their pregnancy and the child that they carry up until the point when they willingly give the care of that child to the intended parents. If at the end of the process of carrying a child a woman decides that she is not able to give up that child, we should respect that choice.

As I have informed this House before, I was adopted at birth in 1970. Thirty years later I was told the story of the circumstances of my birth by my birth mother, when we were reunited. She told me how I was whisked away at birth, meaning she was never able to hold me. She told me how, from that point on, she felt the loss of her eldest child, her only daughter, enormously. To give others the gift of a child is an incredibly selfless, generous act. I have such admiration for those women who make what can only be one of the most enormous personal sacrifices, often for someone they love dearly, perhaps a sister or a very close friend. However, I believe that should the surrogate mother change her mind and keep her child, this should be her right. Of course, I acknowledge how difficult and heartbreaking this situation would be, and is, for the intended parents. Therefore, I strongly support this aspect of the bill.

In considering this legislation, we in this place all agree about the enormity of a decision to enter into a surrogacy agreement. The bill goes to some length to ensure that all parties involved understand the extent of a decision to enter into a surrogacy arrangement by imposing a number of preconditions to the granting of a parentage order. In addition to the requirement to obtain counselling and legal advice, one of the preconditions is that the birth mother must have been at least 25 years old when entering into the surrogacy arrangement. This is a reflection that a decision to take on the role as the birth mother requires significant maturity, and we support this.

The bill reinforces that commercial surrogacy remains a criminal offence. This is an important protection to ensure that surrogate mothers and the children born through surrogate arrangements do not become commodities. The bill does however create a framework whereby the reasonable costs to the birth mother associated with the surrogacy can be paid or reimbursed. The provision of a list of eligible costs in the bill adds clarity that should prevent this feature being used in a way that undermines the prohibition on commercial surrogacy.

Before I finish I will address some comments that have been made this evening on issues of family, and what constitutes ideal parents—in the view of some members it is a natural mother and father and nothing less; or, second best, at least a mother and a father. I refer to the case of "Baby E", who was the subject of a custody dispute between that baby's four parents, two same-sex couples. Despite what moral judgements some members of this House place on arrangements and families such as those, me not included, to hold this example up as a reason not to support the bill is ludicrous. What of all the heterosexual couples who break up or divorce immediately after the birth of a child, or indeed at any time? In 2007, 13,726 divorces were granted in New South Wales, with 46.5 per cent of these divorces involving children. This argument also carries no weight because the bill recognises that parentage presumptions must remain with the surrogate mother upon the birth of the child, if that is her wish.

I must address the attacks in this place tonight on the ability of same-sex couples to be loving parents to well-adjusted, healthy children. The Hon. Greg Donnelly has quoted various literature and research and I would like to do the same to balance the record, or even perhaps to set it straight. In 2007 the Australian Psychological Society released a literature review of family studies research about parenting by lesbian, gay, bisexual and transgender people. The literature shows that since the 1970s it has become increasingly clear that it is family processes, such as the quality of parenting, the psychosocial wellbeing of parents, the quality of and satisfaction with relationships within the family, and the level of cooperation and harmony between parents, that contribute to determining children's wellbeing and outcomes, rather than family structures per se, such as the number, gender, sexuality and cohabitation status of parents.

I will read the references because I think it is important to have them on the record. For example, see Chan, Brookes, Raboy and Patterson, 1998; Chan, Raboy & Patterson, 1998; Clarke-Stewart, Vandell, McCartney, Owen and Booth, 2000; Featherstone, 2003; Flood, 2003; Golombok, 2000; Kelly, 2000, 2003; Mcintosh, 2003; McNair, 2004; Millbank, 2003; Patterson, 1995a, 1998, 2001; Patterson, Fulcher and Wainright, 2002; Savin-Williams and Esterberg, 2000; Silverstein and Auerbach, 1999; Tasker, 2005; Vandewater and Lansford, 1998; Wainright, Russell and Patterson, 2004; Walker and McGraw, 2000; Wise, 2003. Furthermore, the American Academy of Pediatrics reported in 2002:

… no data have pointed to any risk to children as a result of growing up in a family with one or more gay parents.

This literature review went further to say that:

As an example of the momentum to remove discrimination, recognise human rights, and enhance the wellbeing of families and children, in 2007 two Australian legal inquiries recommended significant family-related law reform. The Human Rights and Equal Opportunity Commission [2007a] identified a large number of "federal laws which discriminate against same-sex couples and their children". That is partly why we are here tonight.

I urge some members in this place to step into the twenty-first century. We are legislating for New South Wales in 2010 where families, relationships, sexualities and genders are diverse. I am close to a number of families comprising same-sex parents and children, and you could not want for more loving, respectful relationships and well-adjusted, happy, gorgeous children. We are not in this place to impose our ideological or religious views on others. It is our duty in this place to ensure everyone has full rights, including children. I also want to address Reverend the Hon. Fred Nile's ridiculous statement that the Greens are the arm of the homosexual movement. Yes, we support full rights for all people, something that Christians surely also support.

Reverend the Hon. Fred Nile: Don't you represent their concerns in Parliament?

Ms CATE FAEHRMANN: As I said, we represent full rights for all people, as I am sure Christians also do.

The PRESIDENT: Order! Members should not interject and the member with the call should refrain from responding to interjections.

Ms CATE FAEHRMANN: In conclusion, women who choose to become surrogates are giving their bodies to allow another to have a child. It is of the utmost importance that we do not allow that altruism to compromise the rights of these women to make decisions about their body. This bill protects those rights while ensuring a child born into such an arrangement has a recognised parent-child relationship under the law. I join my Greens colleagues in supporting the bill.

The Hon. RICK COLLESS [11.50 p.m.]: The Surrogacy Bill 2010 seeks to achieve two important objectives amongst the 10 broad objectives as outlined in the explanatory note attached to the bill. The bill prohibits the commercialisation of surrogacy arrangements, including advertising, and allows the parentage of a child to be transferred from the birth parent or parents to the intended parents. The Legislative Council Standing Committee on Law and Justice conducted an inquiry into surrogacy in 2008 and received many submissions from a wide range of professionals, including government agencies, fertility clinics, and legal, medical, religious and ethics organisations. The bill is a result of the findings of this inquiry and a consultation paper issued by the Standing Committee of Attorneys-General.

The Status of Children Act 1996 currently determines that a child's legal parents are the parents to whom it was born. This provides significant problems for parents who had a child with the assistance of surrogate parents, in that they have to turn to adoption processes to achieve full legal parentage rights to their child. It is very obvious that parents in this situation have to turn to legal processes to achieve full legal parentage rights through schemes which were not designed for surrogacy situations. Under the bill, permanent relief and certainty will be provided to parents who seek to become parents via a surrogacy arrangement, in that they can be certain that they will be the legal parents before the process begins despite the court order process and without a long and drawn-out legal process that was not designed for that purpose. Children born under surrogacy arrangements live with their intended parents without the benefit of full parentage rights, so the bill will ultimately secure the best interests of the children, allowing them to enjoy proper parents through into their own adulthood.

A number of safety nets are provided in the legislation. The intended parents may apply for a parentage order between 30 days and six months after the child's birth, to allow the birth mother time to adjust and carefully consider giving her consent to the parentage order, while the six-month upper limit seeks to provide certainty that the matter will be finalised as soon as possible. The application for an order must also be supported by an independent counsellor's report, to ensure the order is in the best interests of the child. The bill does not impose preconditions in relation to the gender or relationship status of the intended parents other than a requirement that they be a couple.

While I respect the rights of people to live the lives they desire to live, I have some concerns about adults making future decisions on behalf of children who have no say in those decisions and I do not concur with this aspect of the bill. As has been raised by other speakers in this debate, the issue is similar to that concerning the same-sex adoption bill and other bills that have been before this House previously. It is about children, and I believe that if we are to put the considerations of children before and above every other issue then children should be given the chance to grow up in a heterosexual family. I respect the rights of same-sex families to have a young family around them, and I certainly do not have a problem with same-sex couples having a family when one person in the couple is a parent of the child—as I am sure happens in the majority of cases.

However, surrogacy is surely an option for couples who are unable to conceive as a result of one or both persons in the couple being infertile or unable to sustain a pregnancy, rather than for same-sex couples who may be highly fertile but unwilling to explore alternative options to become parents of a child. In my view, clause 21 confirms this, and the court must be satisfied that making a parentage order is in the best interests of the child. However, the question remains as to the court's interpretation as to what form those "best interests" ultimately take. I would prefer to see a clause included in the bill, simply as a safety net, whereby the child would have the option to return to the natural birth parents if the situation arises where the child is incompatible with the intended parents.

I fully endorse clause 22 of the bill, which prohibits the surrogacy agreement being a commercial agreement and provides that there can be no advertising of potential surrogate parents. I am comfortable with the remainder of the provisions of the bill, particularly with regard to the privacy arrangements and enabling the child to have access to birth information in a similar arrangement to that available to adopted persons. Despite my concerns about the bill, I will not oppose it as I feel more good will come from the bill than otherwise and many children and families will ultimately benefit as a result.

The Hon. JOHN AJAKA [11.55 p.m.]: At the outset I indicate my support for the Surrogacy Bill 2010. I was one of the six members of the Standing Committee on Law and Justice that inquired into and reported on the legislation on altruistic surrogacy in New South Wales. That is report No. 38 of May 2009. Being a member of the committee offered me the opportunity to examine all the evidence before us, either by way of submissions or, more importantly, from witnesses. I will not dwell on all the matters raised in our committee report, as I spoke on the report during debate in this House on 2 June 2009. My speech is recorded in Hansard and is available for all members and the community to peruse. I stand by the matters I raised in that speech.

I note that the provisions of the bill are structured to meet the 10 recommendations made by the Standing Committee on Law and Justice in its report No. 38 of May 2009. I am pleased to note that the Attorney General has incorporated those recommendations in the provisions of the bill, and I congratulate the Attorney on introducing the bill. I will not repeat each and every relevant provision of the bill, as members are able to read those provisions and the Attorney General has canvassed them in his second reading speech. I propose to summarise in a general way the effect of the provisions of the bill on the parties who are affected by them.

As a lawyer it was my usual practice to explain to clients, in a simple and general manner, the true effect of certain laws that were applicable to their particular circumstances so they were able to understand the relevant issues and, where necessary, make an informed determination as to how they wished to proceed—in other words, to use a common analogy, to paint a picture for them. I found this approach most effective, so that informed decisions were made by my clients, who were able to grasp the general principles of the law that was applicable to them.

I would like, in effect, to paint a picture as to the effects of this bill. The bill provides that two persons, that is, the intended parents, reach an agreement with a woman, that is, the birth mother, and that that agreement will be known as a surrogacy arrangement. After the birth of the child the intended parents—or, in certain circumstances, one of the intended parents—makes application to the Supreme Court for a parentage order. The court is empowered to make a parentage order, the effect of which will transfer parentage of a child from the birth mother to the intended parents or parent. The effect of the parentage order is that the child becomes the child of the intended parents or parent, and the intended parents become the parents of the child. Further, the child ceases to be the child of the birth parent and the birth parent stops being a parent of the child.

The bill also provides that, in effect, there will be two birth certificates for the child. The original birth certificate will provide full particulars setting out details of the child's birth. The Registrar General will need to be provided with details of the birth mother, full details of the intending parents and, where applicable, full details of the persons who provided the gametes. The subsequent or second birth certificate will be issued by the Registrar General after the parentage order is made. The birth certificate will contain the details of the intended parents as the parents of the child, in place of the information that was recorded in the original birth certificate before the parentage order was made. This birth certificate must not include any information that indicates that the person was a child of a surrogacy arrangement.

The bill makes provision for a person who is the child of a surrogacy arrangement. When a parentage order has been made he or she has a right to obtain his or her original birth certificate, and the full particulars that are relevant, once he or she has attained the age of 18. In effect, this is the best of both worlds for those for whom a parentage order has been made as a result of a surrogacy arrangement. It protects a child at school—an example that was given on many occasions to the committee. If a child is being enrolled at school the new birth certificate will be provided to that school. No-one else needs to know about the surrogacy arrangement, so there is no possibility of any embarrassment to that child. When a child reaches the age of 18 or older, he or she is then entitled to obtain the full particulars. They are open to that person; they are not concealed and he or she can then make an informed decision about what should occur.

The bill sets out also mandatory preconditions that must be satisfied prior to the Supreme Court making a parentage order. The court may make a parentage order if the mandatory preconditions are not satisfied. However, that will occur only when the court is satisfied that exceptional circumstances justify the making of such an order. The preconditions are set out specifically in the bill. I note that those preconditions mirror many of the recommendations that were made by our committee. First, the order must be in the best interests of the child; second, the arrangement must not be a commercial surrogacy arrangement; third, the surrogacy arrangement must be a preconception surrogacy arrangement; and fourth, the intended parent must be single or, if there are two intended parents, they must be a couple at the time of the arrangement.

Fifth, the birth mother must be 25 years of age at the time of the arrangement; sixth, the intended parent, or parents, must be at least 18 years of age at the time of the arrangement; seventh, the court must be satisfied that there is a medical or social need for the surrogacy arrangement; eighth, all the affected parties must consent to the making of the order, except in limited circumstances; ninth, the applicant or applicants must be resident in New South Wales; tenth, the child must be living with his or her intended parent or parents; and eleventh, the affected parties must have obtained counselling. Twelfth—one of the provisions that I raised with the committee—the affected parties must have received legal independent legal advice so that any decision being made by them at the time of the arrangement is an informed decision based on independent legal advice.

Thirteenth, all information must be provided to the Department of Health central register; and fourteenth, the birth of the child must have been registered. In addition to these preconditions, the Act provides also that the application for the parentage order is to be made with the Supreme Court not less than 13 days and not more than six months after the child of the surrogacy arrangement is born. In effect, this provides an appropriate period for applicants to consider the matter prior to rushing into an arrangement. It will ensure also that applications are made within a reasonable time. It is in the best interests of the child that the time permitted for the lodging of applications should not be extended for too long.

The Act defines also certain clear prohibitions. First, no commercial surrogacy arrangement is permitted. Such an arrangement will constitute an offence under the Act of 1,000 penalty units and/or two years imprisonment for an individual, or 2,500 penalty units for a corporation. Second, it prohibits any form of publishing—any advertisement, statement, notice or material—that states or implies a person is willing to enter into or arrange a surrogacy arrangement, or is willing to act as a birth mother. Third, any surrogacy arrangement is unenforceable except to the extent that it provides for payment of a birth mother's costs. Those costs are defined and limited to reasonable costs associated with becoming or trying to become pregnant; pregnancy at birth; and entering into and giving effect to a surrogacy arrangement. Further, a cost is reasonable only if that cost is incurred and can be verified by receipts or other documentation.

As I indicated earlier, if one goes outside those provisions one comes within the prohibited area of a commercial surrogacy and one could be committing an offence. Clearly, members in this place hold different views. Being one of the last speakers in debate on this legislation afforded me an opportunity to listen to the views expressed by other members. In my opinion, those views mirror and correspond with different views that have been expressed by members of the community. For the record, I do not agree with the concept that was put forward on a number of occasions that the only family unit is a husband and wife with children. I remember making that statement when I was asking witnesses questions. Sadly, I was misquoted in a number of articles by some people who said I had stated that a husband and a wife with children was not a family unit and the word "only" was conveniently left out in those articles.

Clearly, that is not the case. Our society contains many different family units or structures. Men are raising children on their own as are women, aunts, uncles, grandmothers and grandfathers. A number of situations exist and they are good family units. I do not accept that there is a right or a wrong view. I do not accept also views that appear to be based on any form of prejudice. It is inappropriate for members to have any form of prejudice in relation to this bill. We are under an obligation to do what is in the best interests of residents, constituents and children in this State. If we compare the options that are available under our current law prior to the implementation of this bill we find that there are serious shortcomings which will impact negatively on the best interests of our children. I repeat a few paragraphs of a speech I made in May 2009 when I was debating the committee's report:

I take the view that the most effective response to altruistic surrogacy in NSW is not to blindly implement a blanket prohibition, but to acknowledge that the practice is real, it is occurring, and giving rise to difficult (and hitherto, largely unanswered) legal questions.

During debate on that report I said also:

However, the NSW legislation, as it currently stands, provides few alternative arrangements to prospective "parents" who are concerned with the protection of their children in the instance of death, separation or incapacity. For instance, intending parents in a surrogacy arrangement can only be recognised as the legal parents of the child through adoption; or they may apply to the Family Court of Australia or Federal Magistrate's Court of Australia for a parenting order, outlining custody and day-to-day care arrangements.

Further on I said:

The other primary complaint was directed towards the significant delays involved in the adoption process. And indeed, a number of adoptive parents who participated in the inquiry expressed a high degree of anxiety over the uncertainty surrounding the adoption application process.

If we weigh up the current law and we compare it to the provisions in this bill we find that the best interests of the child and the best interests of the relevant parties are served. The bill provides us with a structured position, specific boundaries and obligations, as opposed to the current position in which no real structure or boundaries exist. On that basis I again confirm that I support the bill.

The Hon. JOHN HATZISTERGOS (Attorney General, Minister for Citizenship, Minister for Regulatory Reform, and Vice-President of the Executive Council) [12.08 a.m.], in reply: I thank all those members who contributed to debate on the Surrogacy Bill 2010. I listened with interest to their respective views and, to a large extent, those views were mirrored in the various consultation processes that have been undertaken, both through the Standing Committee of Attorneys-General and through the Legislative Council Standing Committee on Law and Justice. I state at the outset that because of the various aspects with which this legislation deals I know that it has troubled many people. As I indicated in various consultations in which I participated, I was not offended—and I continue not to be offended—by any person who has a view that is at variance to my view in respect of any aspect of this legislation.

There are no necessary rights or wrongs. People's views may differ on different aspects of the legislation. The Government tried to wrestle with this complex issue as best it could. I reassure members that the complexity of the issue is why it has taken so long to come to this House. I believed it appropriate before we go to an election—bearing in mind that the consultation process has taken a good part of three years—that this Parliament, which has been acquainted with it, be the one to make the determination as to how we go forward. To that extent, I noticed a mischievous comment in one of the newspapers that some attempt was being made by the Government to put pressure on members opposite as we lead into an election by debating issues of this nature. That certainly was not the case. I reassure members that I sought to bring this matter to a conclusion before the election took place.

The Hon. Trevor Khan: I don't feel pressured.

The Hon. JOHN HATZISTERGOS: Mention was made in one of the newspapers that there was an attempt to cause a wedge with an issue of this nature. That certainly was not the case. I am not going to comment on matters that will be the subject of foreshadowed amendments. Members will be able to debate those in due course. But, as has already been stated, altruistic surrogacy is perfectly legal—it operates. Persons in same-sex relationships and single people have access to assisted reproductive technology. When that was debated in 2007 no attempt was made at that time, through any amendment moved by any member of this House, to limit access to assisted reproductive technology to any individual or couple of an individual nature. That is the law. There are children who exist today—and who will exist in the future—who were born as a result of assisted reproductive technology, and they will live with couple, same-sex and heterosexual, and with individuals. When considering this legislation the issue to be confronted is how to deal with that situation.

Bearing in mind that altruistic surrogacy already exists, and will continue to exist, is it not preferable to have a legislative regime that encourages any individual who wishes to go down this route to obtain legal advice, counselling, and protection for a birth mother in relation to any legal obligations that might otherwise flow as a consequence of those arrangements? Is it not better to ensure that all parties upfront are aware of all of the potential consequences that might be encountered in an agreement of this nature? I believe it is. The incentive for individuals or couples to be able to go down this particular route is that they can obtain that recognition at an earlier point in time rather than going down the adoption route. The adoption route is still available but it is a complex and time-consuming route. I do not believethat a child, immediately or very shortly after birth, who is living in a relationship with a parent or parents should be disadvantaged by reason of the fact that it has been brought into the world through arrangements chosen by the parents. That is what this legislation seeks to do.

I want to respond to a number of matters raised by Reverend the Hon. Dr Gordon Moyes. He asked how a child who turned the age of 18 would know his or her genetic origins and therefore be able to access information that might be relevant to him or her relating to the donor parent and to the surrogate mother. The bill creates certain safeguards. After a child turns 18, upon application for his or her birth certificate, the registrar must attach an addendum to the certificate stating that further information is available about the entry. That is provided for on page 38 of the bill which refers to new section 25D (3) being inserted into the Births, Deaths and Marriages Act. That provides some protection for people born into surrogacy arrangements in that it may alert them to the existence of the original birth certificate recording the details of their birth parents.

Information about the birth parents and the gamete donors will also be recorded on the register and administered by the Director General of Health under the Assisted Reproductive Technology Act. That information should be available to children once they turn 18 years of age, should they seek it. The types of information that will be recorded are yet to be formalised, but they will be formalised through the regulations. However, it is expected that details will be recorded about the child's birth parents and biological parents, as they are for donors under the Assisted Reproductive Technology Act. That will include things such as the name, address, date and place of birth, the ethnicity and physical characteristics, any medical history relating to the future health of the child or his or her descendants, the sex and year of birth of other children of the donor or birth parents, and any other information that is provided voluntarily by the donor or the birth parent.

Clause 33 (2) of the bill requires that the birth mother is to receive counselling both before entering into the arrangement and after the birth of the child. The bill also provides that the intended parents may also apply for a parentage order between 30 days and six months after the birth of the child. That time limit operates as a cooling off period for the birth mother, during which time she will receive counselling and other opportunity to carefully consider consenting to the parentage order after the birth of the child. Reverend the Hon. Dr Gordon Moyes also commented on the differences in various jurisdictions and the need for a national approach. That is why this matter was taken to the Standing Committee of Attorneys-General and that is why a framework was developed. In March 2008 the Standing Committee of Attorneys-General agreed to develop a framework for the legal recognition of parentage achieved by surrogacy arrangements. The secretariat of the Standing Committee of Attorneys-General engaged in extensive consultation and a significant amount of work was undertaken to develop the model principles and the draft provisions. All the mainland States, with the exception of New South Wales, have now provided some form of parentage order. I believe it is high time that we did so in New South Wales.

Reverend the Hon. Dr Gordon Moyes and some other members raised a range of different circumstances they claimed were not covered by this bill—I think the term used by Reverend the Hon. Dr Gordon Moyes was "half-baked". I have tried very carefully to prepare this legislation on the basis of the submissions that were forwarded and the outcomes of the report of the Standing Committee on Law and Justice. That report considered these issues very carefully. It was determined that it was necessary and important in prescribing any characteristics of adults who may enter into these arrangements and be eligible for a parentage order to take the path of minimum regulation. That recommendation was made.

The bill does not prescribe any characteristics that need to be present in relation to gender relationship status, previous status for the birth mother, or the genetic connections between the child and its birth mother or its intended parents. That recommendation was adopted by the majority of the standing committee, having considered all the views and expert judgements of councillors and clinicians in this field. The bill prescribes a process that people must follow if they wish to be eligible for a parentage order, including an agreement in writing, legal advice and counselling seeking to ensure that surrogacy arrangements are carefully considered and are likely to be in the best interests of the child and the parties.

I acknowledge that Reverend the Hon. Dr Gordon Moyes, and indeed others, may have some strong views about the sorts of persons who should be entering into surrogacy arrangements. But let me make it very clear that the defeat of this bill will not defeat altruistic surrogacy. All it will do is see altruistic surrogacy continue in this State without any protection for birth mothers and without any counselling or legal advice and, indeed, without any protection for children. I would be very surprised if people who thought seriously about the impact of voting down this legislation would intend those consequences. All it will do is drive those people who still want to have children, and will still have children, because members voted for an assisted reproductive technology Act—

The Hon. Trevor Khan: In 2007.

The Hon. JOHN HATZISTERGOS: In 2007. It does not place any limits on who can have access to the characteristics to which I have referred. People will continue to have relationships, they will continue to have children through those relationships, and those children will remain unprotected. There will be no need for counselling, legal advice and all the other protections that this bill provides. This bill seeks to provide a framework for people to go down these tracks. There has been talk about providing some guidance and about setting some moral values. It is more significant to encourage people to go down this track knowing that their relationship will be recognised in a short space of time without the need for the intervention of third parties such as the Department of Community Services and others, and ratified by the court to ensure that the child will be able to develop and grow into that relationship with the people responsible for his or her parentage and all the protections that flow.

The Hon. Trevor Khan: And the children have the benefit.

The Hon. JOHN HATZISTERGOS: And the children will have that protection. They will have protection in relation to things such as victims compensation, motor accidents compensation, recognition of siblings for the purposes of workers compensation laws and various laws of the Commonwealth, including issues such as social security, veterans affairs, intestacy and so on. All those rights that flow to our children in the ordinary way will flow to those children born of surrogacy. And, of course, as those children grow and develop they will be able to exercise rights in their own right, vis-a-vis their parents. For example, if a parent loses capacity the child will be able to make an application in relation to guardianship to intervene, if he or she wishes. I do not believe, quite frankly, that we serve the interests of the people we represent well if all we are trying to do is put in stumbling blocks and barriers to try somehow to reinforce some moral position that makes the lives of these people more difficult and fails to recognise the reality.

Finally, I make one further comment, as I did on a previous occasion when legislation of this kind was proposed. This bill shows the capacity and maturity of the Parliament to resolve difficult issues on rights without the need for charters of rights, which I have never supported. However, members would be aware that I have championed the right and ability of this Parliament to make difficult decisions on these sorts of issues to enable us to have democratic input from the people. That is what occurred through this process. People have been able to go to committees, put forward submissions and argue their cases, and committees have provided submissions. In the end the Parliament will resolve it. That is a preferable way of resolving difficult and complex issues to having court-imposed solutions that translate serious and difficult political and moral issues ineffectively into legal battlefields. I commend the bill to the House.

Question—That this bill be now read a second time—put.

The House divided.

Ayes, 24

Mr Ajaka
Mr Cohen
Mr Colless
Ms Cotsis
Ms Cusack
Ms Faehrmann
Mr Foley
Miss Gardiner
Mr Gay

Ms Griffin
Mr Hatzistergos
Dr Kaye
Mr Khan
Ms Parker
Mrs Pavey
Mr Primrose
Ms Robertson
Ms Sharpe

Mr Shoebridge
Mr Veitch
Mr West
Ms Westwood

Tellers,
Mr Harwin
Ms Voltz

Noes, 9

Mr Catanzariti
Ms Ficarra
Mr Gallacher
Mr Kelly
Mr Mason-Cox

Reverend Dr Moyes
Reverend Nile
Tellers,
Mr Donnelly
Mr Obeid

Question resolved in the affirmative.

Motion agreed to.

Bill read a second time.

Suspension of Standing Orders: Instruction to Committee of the Whole

The Hon. GREG DONNELLY [12.30 a.m.]: I move:

That standing orders be suspended to allow a motion to be moved forthwith that it be an instruction to the Committee of the Whole that it has power to consider an amendment relating to conscientious objection to ART services.

I will speak briefly to the motion. I have circulated four amendments that I propose to move in Committee. I want to ensure that there is no doubt whatsoever that the Committee of the Whole is able to deal with my amendment No. 4. The issue of conscientious objection is an important one in the context of the Surrogacy Bill 2010. We are looking not backwards but forwards in relation to persons working in assisted reproductive technology [ART], specifically those associated with providing surrogacy services. Such work is currently done in establishments that essentially are dedicated niche clinics. As we look into the future it is possible that this work will be done in public hospitals, private hospitals and other types of clinics. It is important that persons should not be required to do such work if they have a reason of conscientious objection. I want to ensure there is no doubt that the Committee is capable of dealing with this proposed amendment. That is why I have moved the suspension motion.

The Hon. JOHN HATZISTERGOS (Attorney General, Minister for Citizenship, Minister for Regulatory Reform, and Vice-President of the Executive Council) [12.32 a.m.]: I oppose the suspension motion. The Hon. Greg Donnelly raised this issue before the Legislative Council's Standing Committee on Law and Justice during its inquiry and it was not accepted that it was necessary to move an amendment of this type. This proposal is outside the leave of the bill. On my advice, there has been no consultation with any of the clinics or health workers concerned. Moreover, the proposal goes way beyond surrogacy to dealing with all assisted reproductive technology services. In any event, the issue is addressed by ethical guidelines that are used by the clinics under the National Health and Medical Research Council entitled "Ethical Guidelines on the Use of Assisted Reproductive Technology". Those guidelines provide adequate protection. The substance of the matter is able to be dealt with through that process. For all those reasons, I am unable to support the suspension motion.

The Hon. TREVOR KHAN [12.33 a.m.]: The Hon. Greg Donnelly talked about surrogacy services. The amendment he seeks to move does not relate to surrogacy services; it relates to assisted reproductive technology [ART] services. The point I made earlier—and I was accused of being either dishonest or disingenuous—was that this is precisely the problem that exists with the approach taken by the Hon. Greg Donnelly. His problem is not with surrogacy services, but with assisted reproductive technology. His problem began in 2007 when he voted for the bill. Whether he likes it or not, he voted for the bill. He did not move the amendment then. He did not take the opportunity to exercise his conscience and his will. It is not I who should be accused of being dishonest or disingenuous; it is the member who now seeks to use this bill as an artifice to correct or clear his own conscience. This motion should be defeated.

The Hon. GREG DONNELLY [12.34 a.m.], in reply: I do not need to comment in detail about the contribution of the Hon. Trevor Khan.

The Hon. Duncan Gay: It was a good contribution.

The Hon. GREG DONNELLY: I reiterate my comment about his being dishonest and disingenuous and put it again on the record so that it is in Hansard for perpetuity and the member can show his grandchildren. I have articulated my arguments and I have nothing further to say on the motion. Surrogacy is a procedure within assisted reproductive technology [ART]. That is the reality; that is what surrogacy is. We need to capture that when dealing with this issue. Surrogacy is a subset of assisted reproductive technology, and the Hon. Trevor Khan knows that. My motion should be supported by the House.

Question—That the motion for the suspension of standing orders by agreed to—put and resolved in the negative.

Motion negatived.

In Committee

The CHAIR (The Hon. Kayee Griffin): Before consideration of the bill in detail commences I advise that amendment No. 4 as circulated by the Hon. Greg Donnelly is outside the leave of the bill and cannot be moved.

If there is no objection, I propose to put the bill to the Committee by parts. There being no objection I shall proceed.

Part 1 [Clauses 1 to 5] agreed to.

Part 2 [Clauses 6 to 10] agreed to.

Reverend the Hon. FRED NILE [12.38 a.m.], by leave: I move Christian Democratic Party amendments Nos 1, 2 and 3 in globo:

(1) An application for a parentage order must be made jointly by the 2 intended parents under the surrogacy arrangement concerned.

Note.

It is a mandatory precondition to the making of a parentage order in respect of a surrogacy arrangement that there are 2 intended parents under the surrogacy arrangement, and that the intended parents are a man and a woman who are married or are de facto partners.

(2) An application may be made solely by one of the 2 intended parents under a surrogacy arrangement if the Court grants leave to the intended parent to make a sole application for a parentage order.

24 Intended parents must be members of a couple

couple

(2) There is a medical or social need for a surrogacy arrangement if the intended parents under the surrogacy arrangement are a man and an eligible woman.

The three amendments relate to the same issue. Amendment No. 1 amends clause 13 by omitting all words on lines 13 to 18 and inserting instead subclauses (1) and (2). Amendment No. 2 omits all words from lines 9 to 15 in clause 24 on page 12 and inserts instead:

24 Intended parents must be members of a couple

couple

Amendment No. 3 seeks to omit all words on lines 13 to 21 in clause 28 on page 13 and insert instead:

Ms Cate Faehrmann: And Methodist.

Reverend the Hon. FRED NILE: Both amendments make the same point. The Methodist denomination is now part of the Uniting Church, and has been absorbed. Ms Cate Faehrmann is a bit out of touch with history, but I understand where she is coming from. The purpose of amendment No. 3 is to delete all words from lines 12 to 21 in clause 28 (2) on page 13 of the bill, which currently states:

(b) there are 2 intended parents under the surrogacy arrangement and the intended parents are:

As the bill states, the provision relates clearly to two men in a same-sex relationship and two women in a same-sex relationship. That would be understood in contemporary society to refer to two homosexual men or two lesbians. I do not believe that provision makes the interests of the child a priority. I believe all members should support the amendments I have moved in globo.

The Hon. JOHN AJAKA [12.41 a.m.]: I oppose all the amendments of the Christian Democratic Party that have been moved in globo. With respect to Reverend the Hon. Fred Nile, as has been clearly indicated, surrogacy arrangements exist. As I pointed out earlier and as others have pointed out, current arrangements in relation to surrogacy, what occurs, and the consequences thereafter, are clearly defective in my view. They are not sufficient. That is why the majority of committee members made the recommendations reflected in the bill. By moving Christian Democratic Party amendments Nos 1, 2 and 3 Reverend the Hon. Fred Nile is creating two completely separate situations.

Dr John Kaye: Trying to.

The Hon. JOHN AJAKA: He is trying to create two completely separate situations—I thank Dr John Kaye. Reverend the Hon. Fred Nile is trying to create a situation in which there is one set of laws for what he considers to be his perfect definition of a couple—a man and a woman—and a completely different set of laws for gay couples and lesbian couples. With all due respect to Reverend the Hon. Fred Nile, that is exactly the point I make when I say that these amendments are about pure prejudice. That is all this is—a case of pure prejudice. With all due respect, I, for one, will never accept what is being implied—which is that gay and lesbian couples are second-class citizens who do not have the same rights as couples comprising a man and a woman. That is unacceptable.

Reverend the Hon. Fred Nile: It is to do with the rights of the child.

The Hon. JOHN AJAKA: I note Reverend the Hon. Fred Nile's interjection. Basically, he is saying that children born to a same-sex couple are not entitled to the same laws as children who are born to a couple comprising a man and a woman. He is placing those children in a scenario that ensures they too become second-class citizens. I will not accept that. I am sorry if I am becoming emotional, but I hate prejudice. I hate prejudice when it comes to religion. I hate prejudice when it comes to someone's sexuality. It is unacceptable in today's society, and I will not tolerate it. I object to these amendments.

The Hon. JOHN HATZISTERGOS (Attorney General, Minister for Citizenship, Minister for Regulatory Reform, and Vice-President of the Executive Council) [12.44 a.m.]: The approach adopted with this legislation accords with the approach recommended by the Legislative Council Standing Committee on Law and Justice. The committee considered these issues. All the issues were well ventilated and argued before the committee. The majority of the committee, in my view quite appropriately, was very cautious about any prescription of the form that families should take in legislation to be enacted. The committee considered that the circumstances were best addressed through clinicians and counsellors being in a position to determine on a case-by-case basis the particular characteristics of the intended parents and whether they strengthen or undermine a surrogacy arrangement, and to be able to do that through advice. As I asked during the second reading debate: What is sought to be achieved by amendments of this nature? Will they result in these relationships ceasing to exist? Will they result in children born as a result of assisted reproductive technology ceasing to exist? No. Reverend the Hon. Fred Nile voted for the legislation in 2007 that allowed people to have access to assisted reproductive technology services, irrespective of whether they were male or female, same-sex or heterosexual. That is the situation.

The Hon. Don Harwin: Or single.

The Hon. JOHN HATZISTERGOS: I believe I included that. The point is that these relationships continue to exist and these children continue to exist. What Reverend the Hon. Fred Nile is seeking to do through these amendments is basically exclude people from the benefits of this legislation, thereby making them, as the Hon. John Ajaka indicated, second-class citizens and disadvantaging the children. The amendments are an attempt to introduce some form of disincentive that will obstruct parents having these children. But they will have those children anyway. All that will happen is that they will not be able to have the protection that this legislation seeks to afford them.

The Hon. TREVOR KHAN [12.47 a.m.]: My comments will be brief. It is always beneficial when considering amendments to examine the part that is being amended. Part 3 commences with "Parentage Orders". Division 1 commences with "Parentage Orders". Clause 11 is headed "Parentage Order", and states:

These amendments will hamstring the capacity of a court to make a parentage order. They limit the circumstances. They do not affect the child because the child has already been created through assisted reproductive technology. The body is there. What is being impacted upon by all the amendments is the capacity of a court to put in place a legal structure for the care of the child. What the amendments will do is hamstring the court. A court's capacity to make an order in the best interests of the child will have additional restrictions placed upon it. If the amendments are accepted the child will still exist and the parents will still exist but they will exist outside a legal artifice that protects the child.

The Hon. John Hatzistergos: And the birth mother.

The Hon. TREVOR KHAN: That is the inherent deficiency in the approach reflected in the amendments. With the greatest respect, the purpose of the amendments is to attack the introduction of the Assisted Reproductive Technology Act 2007, which allows, for example, same-sex couples to use the technology. The amendments before the Committee do not address that issue; rather, the amendments address a legal structure that is designed to protect the parties who have already created the child under the 2007 legislation. As I stated earlier, Reverend the Hon. Fred Nile missed the boat in 2007, and these amendments will not fix that. I will not need to speak to the amendments to be moved by the Hon. Greg Donnelly because I will be saying virtually the same thing.

The Hon. GREG DONNELLY [12.49 a.m.]: My contribution to consideration of the amendments will be brief. I must say that I find strange the logic in the arguments that have been advanced. Essentially, the argument is that something happened in 2007 and, in prospectively examining this legislation, it has become clearer that an issue relating to the 2007 legislation is still an issue now—at least in the view of some members of the Legislative Council. Those who advance that case argue that real issues are manifesting for people who were born as a result of assisted reproductive technology. If we accept the argument of the Hon. Trevor Khan it is bad luck; it cannot be revisited.

The Hon. Trevor Khan: You can. You can introduce a private member's bill that addresses the assisted reproductive technology legislation.

The Hon. GREG DONNELLY: You cannot do that. You cannot go back in a debate such as this and in the context of a bill brought before the Chamber by the Attorney General and try to deal with what are seen by certain members as imperfections, which is not agreed by other members.

The Hon. Trevor Khan: But you are amending the wrong bill.

The Hon. GREG DONNELLY: We can only deal with what is before us, and we are endeavouring to deal with a piece of legislation in Committee. In the future there may well be opportunities to look at other options in regard to this; we will have to wait and see. I appreciate that the Hon. John Ajaka said that he was getting quite passionate about discrimination, but I find what he said extraordinary. I will not repeat what is on page 47 of Hansard, which was the paragraph that I referred to in my earlier contribution, but there is an automaticity that if you are a male or a male couple you are automatically able to be considered to have met the requirement of a social need, and the definition of "social need" was not in the legislation back in 2007.

The Hon. Christine Robertson: You heard that was not true.

The Hon. GREG DONNELLY: The 2007 legislation before this House did not deal with issues of medical versus social need in terms of surrogacy or assisted reproductive technology rights. But here it is introduced in this bill. If I can go back to the point I was making about what the Hon. John Ajaka said, he is fired up about the issue of discrimination and he spoke passionately about it, but the reality is that single males and male couples get the tick-off automatically; it is considered that there is a social need for them. They can put up their hand up and say, "We make a claim that we want surrogacy and we want to work through the surrogacy provisions within the legislation." However, to meet the requirement—I will go back to the wording in the provision—a woman, single or as part of a couple, who seeks to become a parent through surrogacy must be unable to conceive or carry a child on medical grounds or likely to conceive a child affected by a genetic condition or disorder passed down by her.

You cannot have it both ways. If a blanket statement is made about discrimination it has got to cut both ways. I do not accept the arguments put in this Chamber this evening that just because allegedly the boat was missed in 2007 it is an extraordinary thing to come before the Chamber in the context of a debate on what is a fulsome piece of legislation dealing with surrogacy and seek to put some parameters around it because one has a particular view that a child's interests are best served by being raised by a mother and father in a permanent relationship. I support Reverend the Hon. Fred Nile's amendments.

The Hon. JOHN AJAKA [12.52 a.m.]: I refer to what has been said by the Hon. Greg Donnelly. I hope no-one takes this as a sexist comment because it is not meant to be. As I understand it, women are able to have children biologically; men cannot. Men cannot have a child and for that reason the definition has been inserted to cover that situation. If a woman is capable of having a biological child the reality is that she will not go and enter into an arrangement with a surrogate because there is no basis for such an arrangement. A man cannot have a child, so it is not a matter of prejudice. I think the Hon. Greg Donnelly's response to what I said on the issue is a nonsense.

The Hon. GREG DONNELLY [12.53 a.m.]: I will not prolong the debate. The Hon. John Ajaka does not understand what happens in other jurisdictions in terms of surrogacy arrangements. The reality is that there is an emerging situation globally, such as in India, where there is a multibillion-dollar commercial industry with business coming from couples where the woman is fertile but does not wish to go through a pregnancy and bear a child. That is a situation that is happening right now.

The Hon. JOHN HATZISTERGOS (Attorney General, Minister for Citizenship, Minister for Regulatory Reform, and Vice-President of the Executive Council) [12.54 a.m.]: That is precisely the reason why the legislation was drafted the way it was, because we did not want to have a situation of what might be described as a takeaway baby where someone, for convenience, goes to a surrogate mother to have a child on her behalf when she is able to bear a child. That is the reason the legislation was structured in the way it was. We followed the upper House committee's recommendations in relation to this issue. We were not going to get into the method of conception; I think that would be inappropriate and no-one wants to get into that area. Obviously, a child can be conceived in a variety of different ways—assisted reproduction, artificial insemination and so on—but the legislation seeks to deal with the reality and to avoid precisely the problem that the Hon. Greg Donnelly has raised.

Reverend the Hon. FRED NILE [12.55 a.m.]: I still urge members to support the amendment. I object to the emphasis the Hon. John Ajaka puts on this amendment being based on prejudice. It is not based on prejudice. My total focus is on the baby and for the baby to have as much chance to have a mother and a father as other children—that is my priority. My prejudice is in favour of the child. I am not looking at homosexuals or anyone else. I want these rights for the child. That does not seem to worry the Hon. John Ajaka. One day when some of these children who have been brought up in a same-sex surrogacy arrangement turn 18 and want to know how they got into that situation I hope they will go and ask the Hon. John Ajaka and he can explain it to them.

Mr DAVID SHOEBRIDGE [12.56 a.m.]: Reverend the Hon. Fred Nile says that he is concerned about the rights of children, but it is only one class of children that he is concerned about. He is actively putting forward a proposition to discriminate between classes of children. The very purpose of this bill is to treat children equally and to put the paramount interest of all children at the centre of the consideration and not divide them up into classes where some have the protection of the law, some have the protection of certainty and some, if this amendment got up, have none.

Reverend the Hon. FRED NILE [12.57 a.m.]: If the amendment got up then we would have to have a private member's bill prohibiting any surrogacy arrangement by same-sex couples and that would solve Mr David Shoebridge's problem.

Question—That Christian Democratic Party amendments Nos 1 to 3 be agreed to—put.

The Committee divided.

Ayes, 11

Mr Borsak
Mr Brown
Mr Catanzariti
Ms Ficarra

Mr Gallacher
Mr Kelly
Reverend Dr Moyes
Reverend Nile

Mr Obeid
Tellers,
Mr Colless
Mr Donnelly

Noes, 23

Mr Ajaka
Mr Cohen
Ms Cotsis
Ms Cusack
Ms Faehrmann
Ms Fazio
Mr Foley
Miss Gardiner

Mr Gay
Mr Hatzistergos
Dr Kaye
Mr Khan
Ms Parker
Mrs Pavey
Mr Primrose
Ms Robertson

Ms Sharpe
Mr Shoebridge
Mr Veitch
Mr West
Ms Westwood
Tellers,
Mr Harwin
Ms Voltz

Question resolved in the negative.

Christian Democratic Party amendments Nos 1 to 3 negatived.

The Hon. GREG DONNELLY [1.06 a.m.]: I move my amendment No. 1:

27 Birth mother must have previously given birth to a child

Not only does this legislation bring together provisions relating to surrogacy that are found in different pieces of legislation in other Australian States and Territories, it also draws on overseas experience. However, it is fair to say that essentially the Standing Committee of Attorneys-General process focused on the experience in the other States and Territories. As the Attorney General said, all the mainland States, except New South Wales, have surrogacy legislation. I support the provision in the bill that the birth mother must be older than 25 years of age. Effectively, my amendment adds a proviso that the birth mother must have given birth to at least one other live child before entering into a surrogacy arrangement.

I did not create that provision. Rather, I drew on the legislation in Victoria and in some overseas jurisdictions. It is argued that if a women contemplating entering into a surrogacy arrangement has already given birth to a live child she fully understands the whole experience of carrying to term and giving birth. The mother would be in a better position to appreciate the experience she is contemplating. That is the basis of the argument that informed the Victorian legislation. This is a sensible addition to the legislation and I urge the Committee to support it.

The Hon. JOHN HATZISTERGOS (Attorney General, Minister for Citizenship, Minister for Regulatory Reform, and Vice-President of the Executive Council) [1.10 a.m.]: I do not support this amendment. Of particular relevance is the Standing Committee on Law and Justice report entitled "Legislation on altruistic surrogacy in NSW", which states:

… the majority of the Committee has decided against making recommendations about criteria that refer to particular characteristics of the individuals involved, the relationship that may exist between individuals and the genetic connections between them and the child who is born through the surrogacy agreement. Instead the majority of the Committee has made recommendations where it considered the process through which surrogacy arrangements are facilitated could be improved …

This amendment provides that the birth mother must have given birth previously to a live child as a condition of making a parentage order. The committee considered this issue and the submissions of those who advocated that approach. I appreciate that they were concerned to make it less difficult for a birth mother to relinquish a child, but ultimately I agree with the committee's view; that is, that this issue should not be prescribed by law. Rather, it should be left as something that is considered during the pre-treatment counselling process by the counsellors determining the suitability of the mother for the particular surrogacy arrangement proposed.

Question—That amendment No. 1 of the Hon. Greg Donnelly be agreed to—put and resolved in the negative.

Amendment No. 1 of the Hon. Greg Donnelly negatived.

The Hon. GREG DONNELLY [1.12 a.m.]: I move my amendment No. 2:

27 Birth mother must not be biological parent

Status of Children Act 1996

Status of Children Act 1996

The Standing Committee on Law and Justice inquiry into surrogacy heard evidence of the dichotomy with regard to traditional surrogacy involving a biological connection between the woman and the child that she carries—obviously that means her ovum is involved—and the situation wherein there is no biological connection between her and the child that she is carrying, which is referred to as "gestational surrogacy". It has been argued strongly in various places, including other parliaments, that surrogacy is easier for a woman to contemplate if she is not surrendering a child whose genetic makeup is at least half hers; in other words, she is the biological mother. There is some merit to that argument. Some jurisdictions stipulate that only gestational surrogacy will be contemplated by legislation. That is my proposal and I ask the Committee to support my amendment.

The Hon. JOHN HATZISTERGOS (Attorney General, Minister for Citizenship, Minister for Regulatory Reform, and Vice-President of the Executive Council) [1.13 a.m.]: I do not support this amendment. If it were agreed to, those children born as a result of traditional surrogacy—that is, where the birth mother's ovum is used—could not be the subject of parentage orders. I am aware of the concerns that have been raised about the birth mother giving up a child born of her own genetic material—in particular, she may change her mind about giving up the child or she may be more likely to suffer upon giving up the child.

Once again I agree with the majority view of the Standing Committee on Law and Justice. The report states that the committee preferred to leave decisions relating to particular characteristics of the birth mother to counsellors and clinicians. Counsellors should address the issues that may arise as a result of the birth mother relinquishing her own child, and in some cases that may result in a decision not to proceed with an arrangement. In other cases a traditional surrogacy may be the best option for some people, especially where the surrogacy occurs within families. For example, a male same-sex couple might wish to enter into a surrogacy arrangement with a sister of one member of the couple and the sister may wish to be involved in the child's life. To exclude traditional surrogacy would have significant implications in that scenario.

If we exclude those arrangements we would also exclude self-insemination as a method of conception. Obviously, self-insemination requires the birth mother to use her own ovum. That issue again raises a number of matters, including children who are born into surrogacy arrangements involving a birth mother who is a genetic parent. Should parentage orders not be available in such cases, those children would be disadvantaged. They may live with their intended parents as agreed by the parties to the surrogacy arrangement, but without the benefit of the parentage order to give the intended parents full parenting rights to make decisions about the child. If assisted reproduction technology is the only option to achieve conception, again that might lead to the exclusion of people who cannot afford that kind of treatment.

Question—That amendment No. 2 of the Hon. Greg Donnelly be agreed to—put and resolved in the negative.

Amendment No. 2 of the Hon. Greg Donnelly negatived.

The Hon. GREG DONNELLY [1.16 a.m.]: I move my amendment No. 3:

28 Biological connection between child and intended parents

Status of Children Act 1996

Status of Children Act 1996

This amendment is again a product of my experience serving on the Standing Committee on Law and Justice and its inquiry into this issue and the experiences of other jurisdictions. In setting boundaries, parameters or frameworks for surrogacy, is it desirable to ensure there is a biological connection between the child and the intending parents? Would or should there be a requirement that the ova or sperm of one of the intended parents be used? That would obviously create a direct biological connection between at least one of the commissioning parents and the child. If that is not a requirement, the purchase and sale of gametes becomes an issue. That scenario has not been addressed during this debate and it certainly was not addressed in 2007. I will not open up another can of worms this evening, but obviously if there is no biological connection, the intending parents must obtain an egg and semen from somewhere else. I would argue that there is merit in having a direct biological connection and that is the reason for this amendment, which I urge the Committee to support.

The Hon. JOHN AJAKA [1.18 a.m.]: I oppose this amendment. We again go back to the argument that surrogacy exists today and assisted reproduction technology exists today. As I said earlier, the danger is that we will end up with two sets of laws—one for one group and another for another group. We do not want to deem certain groups as second-class citizens. The irony is that if one partner in a homosexual couple has donated genetic material, this amendment will not apply to him. If this amendment is passed, if neither the husband nor the wife is capable on medical grounds physically to donate a gamete, he or she is excluded from being able to seek an order through the court. This will create one set of laws for some and another set for others. On that basis I strongly urge members not to agree with the amendment.

The Hon. JOHN HATZISTERGOS (Attorney General, Minister for Citizenship, Minister for Regulatory Reform, and Vice-President of the Executive Council) [1.20 a.m.]: This amendment requires a biological connection between the child and one of the intended parents. Again I refer to what the Standing Committee on Law and Justice reported: the genetic relationship between the child and the intended parent should not determine the eligibility for surrogacy arrangements. The position in this legislation is precisely the position that exists in Queensland, Western Australia and Victoria. Whilst there is an argument that a genetic relationship with the intended parents may contribute to the closeness of the child with the intended parents, I do not believe it is for the law to prescribe that as a precondition of an award of a parenting order. Leaving this matter to expert clinicians and councillors will enable infertile singles or couples who cannot contribute genetic material to have access to parenting orders. For those reasons I do not believe it is appropriate that we should go down the track of making an additional hoop that couples or individuals need to jump through in order to be able to access the benefit of parenting orders.

Question—That amendment No. 3 of the Hon. Greg Donnelly be agreed to—put and resolved in the negative.

Amendment No. 3 of the Hon. Greg Donnelly negatived.

Part 3 [Clauses 11 to 49] agreed to.

Parts 4 to 6 [Clauses 50 to 58] agreed to.

Schedules 1 and 2 agreed to.

Title agreed to.

Bill reported from Committee without amendment.

Adoption of Report

Motion by the Hon. John Hatzistergos agreed to:

That the report be adopted.

Report adopted.

Third Reading

Motion by the Hon. John Hatzistergos agreed to:

Bill read a third time and transmitted to the Legislative Assembly with a message seeking its concurrence in the bill.

ADJOURNMENT

The Hon. JOHN HATZISTERGOS (Attorney General, Minister for Citizenship, Minister for Regulatory Reform, and Vice-President of the Executive Council) [1.24 a.m.]: I move:

That this House do now adjourn.

LOWER HUNTER HOUSING

The Hon. ROBYN PARKER [1.24 a.m.]: The Lower Hunter is the sixth-largest urban area in Australia and one of the State's major centres of economic activity. The Urban Development Institute of Australia, New South Wales, Hunter Chapter, has recently released a report about the need for adequate supplies of new housing for the Lower Hunter. It is an economic and social imperative. The Lower Hunter is home to a deepwater port, a booming resources sector, a skilled workforce, particularly in manufacturing and a strong population growth that has an unemployment rate that is the envy of many, at 4.1 per cent lower than the national average. Despite those strong attributes, housing supply in the Hunter has been dropping steadily over the past five years, with the total number of houses built in 2007-08 less than a third of what was built in 2004-05. As the report says, the Lower Hunter is facing a chronic housing supply shortage which, if not addressed immediately by policymakers—and that is this Government at the moment—will lead to a dramatic decline in housing affordability right across the region. A lack of supply equals a rise in cost and a lack of supply means less affordability.

The Urban Development Institute of Australia, New South Wales, Hunter Chapter, stated the land report is intended to bring to light the chronic undersupply of housing to the region over the past five years. It provides recommendations to policymakers on housing delivery. It also provides the industry evidence to forecast housing production from new greenfield release areas over the next three years, which demonstrates the need for a shift in thinking from the State Government to meet the region's demands. Indeed, I asked a question of the Treasurer, and I might have asked it of the Minister for Planning if he had been here last week, about the fact that only 1,590 residential lots of land are being released per annum in the Hunter, falling well short of the 4,600 per year needed to cater for a population growth of 160,000 by 2031, which was indicated in the Government's Lower Hunter Regional Strategy. In terms of encouraging the growth of the Hunter economy, how can that happen whilst this Government is strangling development by failing to make more residential land available? Land is available, but is stuck by the Government's lack of infrastructure and lack of availability to move on release of that land and basic failures in terms of assisting that availability.

In the Maitland area alone one major piece of infrastructure that the Government needs to move on quickly is the Thornton bridge. Land development and release is reliant on the bridge, yet we do not seem to be getting anywhere. All we have are glossy brochures being mailed out on behalf of the member for Maitland. The Roads and Traffic Authority is sending out glossy brochures spruiking the Thornton rail bridge, yet there is no timetable, no plan, no funding and no budget. It seems that nothing will happen until after the next budget is delivered, well into June next year. Development in what was called Thornton North and is now called Chisolm is reliant on that bridge being built; developers need to know what is happening when, so that houses can be built.

The Hunter's new housing stock is at critically low levels. It will get worse unless the New South Wales Government takes urgent action to reinvigorate housing lot production. Fortunately, we have an opportunity in 150 days from today—it is now actually 149 days until the next election on 26 March—to get this State moving, to get housing development going, to keep the economy going, to keep unemployment at record low rates and to move on a stimulus package. I know that the O'Farrell-led Government will have at its centre infrastructure development through Restart New South Wales, through Regional Kick-Start and through the Hunter Investment and Infrastructure Fund. Infrastructure will be at the heart of the O'Farrell Government, because we constantly hear the need for change. The hope for change is by way of a change of State government, it is by way of making a move in 149 days to make sure that infrastructure keeps pace with growth— [Time expired.]

GAME COUNCIL

The Hon. ROBERT BORSAK [1.28 a.m.]: I refer to an article that appeared in the Sydney Morning Herald last Friday about the Game Council, which said that the Game Council has somehow acted inappropriately for a government body by publishing material about a conservation group on its website. Before I do so, I want to correct the statement in the article that I supposedly declined to provide a comment. That is not the case. As I explained to the journalist, Alexandra Smith, it would be inappropriate for me to comment as I am now a sitting member of Parliament. This was conveniently left out of the story. I am not surprised by such dishonest and second-class journalism from the Sydney Morning Herald, which is a mouthpiece for the Greens and their cronies.

The article refers to the latest NSW Ombudsman's report in which he said that the Game Council has misquoted and misrepresented the work of a conservation advocacy group on its website and has subsequently failed to take the information down when requested to do so. Furthermore, it is also claimed that the content and tone of other articles on the website were inappropriate for a statutory authority. The Game Council wrote to the Ombudsman's office on 12 February 2010 addressing all the issues raised by the complainant, Ms Carol Booth, of the Invasive Species Council.

The Game Council has a function under section 9 (1) (a) of the Game and Feral Animal Control Act to represent the interests of licensed hunters in matters arising under the Act. The Game Council is meeting the objects of the Act through the current licensing system for hunters and managing hunting arrangements on behalf of public land and private land managers. The Invasive Species Council has consistently opposed the hunting of animals by anyone, apart from professional hunters, and opposed the implementation of public land hunting under the Act. The Game Council was simply performing one of its statutory functions when it responded to a number of attacks on the Game Council and voluntary conservation hunters by the Invasive Species Council when it developed the paper, released media statements and responded to the Invasive Species Council during radio interviews.

Instead of approaching the Game Council directly, Ms Booth wrote to the NSW Ombudsman about the paper that appeared on the Game Council's website entitled, "Conservation hunting and its role in game and feral animal management: a response to papers by the Invasive Species Council of Australia", written by Dr Andrew Moriarty, Associate Professor Tony English and Professor Robert Mulley. For the record, Ms Booth has been a consistent and vociferous critic of voluntary conservation hunting and the Game Council. She is simply an anti-hunting campaigner who displays the highest class of social snobbery and bigotry against hunting and firearms owners.

Going by her tertiary qualifications, Ms Booth has limited understanding of complex environmental issues. Ms Booth has a PhD in chemistry from an obscure university in the United Kingdom and a PhD from the School of History, Philosophy, Religion and Classics from the University of Queensland. The title of her rigorous PhD dissertation from the University of Queensland says it all:

Duty, Beauty, Delight and Happiness—motivations for conservation.

She has no practical background or knowledge of managing over-abundant animals of any kind. Her only motivation is stopping practical solutions to one of Australia's greatest environmental challenges: managing game and feral animals and over-abundant native animals. She frequently extols the virtues of Tim Low's very ordinary publications on "Feral Futures" and fails to let people know of her own conflict of interest. Low is her partner and the father of her children. No wonder she extols his books and encourages people to buy them!

People think that she, Tim Low and her fellow Invasive Species Council cronies are genuine without knowing that the Invasive Species Council is just another front for the Greens. They are not a council; they are a self-appointed closed shop of extreme Greens. They do not list how many members they have; they do not have public meetings; they do not hold public elections—they just waste the time of Government and genuine environmentalists. They extol professional shooters. They should have a look at the Industrial Relations Commission case involving a Moss Vale Rural Lands Protection Board ranger to see just how professional he was.

Last, but not least, I will briefly address a quote attributed to Ms Cate Faehrmann when she said that the Game Council is a law unto itself. This is an absolute fabrication of the truth. The Game Council provides a cost-free public benefit to the taxpayers of this State through its world-class voluntary conservation hunting program. It has an obligation to advocate for conservation hunters. Unfortunately, however, the council does not get the same positive media coverage that some extreme Green and socialist left groups get, which, under the auspices of some career environmental activists such as Ms Faehrmann—who in the past has held positions with the Nature Conservation Council of New South Wales, the Environmental Defenders Office and GetUp, to name a few—have been able to master the art of extrapolating government handouts at the expense of taxpayers and the real environment of this State with minimal, if any, positive return.

ONGOING RELEVANCE OF ORGANISED LABOUR

The Hon. IAN WEST [1.33 a.m.]: In Monday's Sydney Morning Herald, opinionist Paul Sheehan went to some lengths to talk up just how powerful a player labour unions are in New South Wales. Meanwhile, in stark contrast, Rodney Cavalier in his book Power Crisis hammered home his view that unions are irrelevant. I enjoy listening to authors and journalists cogitating on issues like the relevance of organised labour. To me it, first, shows that free speech is alive and well; and, secondly, confirms that trade unions are alive and well.

The struggle between capital and labour has been, is and will continue to be central to human endeavour and political activity regardless of legislative frameworks or modes of production. It remained central throughout the agricultural, industrial and technological revolutions. It remained central over the centuries from royal divine right to rule, slavery, convict labour, serfdom, master and servant, employer and employee, contract labour, self-employed labour, franchisees and labour hire, and the list goes on.

Age-old human struggles against the continual abuse of power and self-interest are the very essence of organised labour's existence and ongoing relevance. Getting or winning a right or passing legislation is, as we know, only the beginning. One must then campaign for its implementation and maintenance, then defend it against breaches and attempts to turn back the clock. WorkChoices and occupational health and safety are classic examples of breaches of hard-won, basic human rights and attempts to turn back the clock. Too often the political Left are far too complacent in allowing our ideological opponents to write the narrative.

Premier Keneally's ardent refusal to accept anything less than best practice in occupational health and safety laws emphatically highlights the perpetual importance of Labor's defining principles. This is a fact belied by the often acidic tone used by certain groups in attempting to marginalise those dedicated to ensuring that workers do not end up paying the ultimate price. Last week, capital's chief crier, Heather Ridout, almost fell over herself to describe New South Wales Labor's efforts to raise national workplace safety standards as "total capitulation to the New South Wales union movement". Her simplistic rhetoric would be thoroughly laughable if she were not dead serious. The irony of Ridout and her fellow comrades of capital organising collectively and maximising political influence, all under the guise of encouraging "prospective" investment, certainly is not lost on those who think past the rhetoric.

A closer look at current negotiations between the Commonwealth and the New South Wales Government reveals an infinitely more nuanced reality. New South Wales maintained from the outset that legally registered unions should retain the long-held right to prosecute dodgy employers for safety breaches and that the responsibility remain on employers to provide a safe and healthy work environment. The so-called agreement was subject to those two elements being incorporated into the proposed national framework to avoid a "lowest common denominator" approach. We must never forget that life and death is what is at stake here. For the family of 16-year-old Joel Exner, it is something they know painfully well. In 2003 Joel tragically fell to his death on a construction site in his first few days of work. But only after the Construction, Forestry, Mining and Energy Union initiated legal proceedings against Joel's employers to salvage some degree of justice did WorkCover prepare its own prosecution, two years after the incident. Persistent calls to dilute the role of unions in Labor's policy development remain ignorant of the fact that to do so would deny the party's fundamental purpose and future. Senator John Faulkner rightly said at the 2001 Australian Labor Party National Conference that:

Unions are amongst the most representative organisations in our country. They account for almost two million members, hold elections administered by the Australian Electoral Commission and are registered under State and Commonwealth industrial legislation. Critics point to declining union membership to support claims of organised labour being a relic of bygone times. Yes, structural changes arising from things like globalisation and labour market deregulation have challenged the viability of traditional union organising models. But it is interesting to note that for the second consecutive year union membership grew, and union density increased for the first time in 20 years. The truth is that the values that galvanise organised labour will endure long after governments are seduced by jargon such as "harmonisation" to quench the big end of town's eternal thirst for the mighty dollar. [Time expired.]

COOMA SERVICES

The Hon. MELINDA PAVEY [1.38 a.m.]: I speak on a matter of great importance to the people of Cooma, in my duty electorate of Monaro, although the issue has relevance to many other regional centres. The Australian Government's White Paper on National Aviation Policy, "Flight Path to the Future", released in December 2009, tells us that over the period 1984 to 2008 the number of regional airports served by scheduled airlines fell from 278 to 138, with the steepest decline on low-density routes. In that time the number of airlines serving regional airports fell from 53 to 27. The white paper also notes that there has been a high attrition rate and turnover in the industry and that airlines serving smaller centres sometimes operate on low profit margins, and in the past three years several regional airlines have ceased operations. With this background in mind, I want to discuss briefly tonight the issue of equitable regional access to Sydney Airport for new services provided by Aeropelican into Cooma. Earlier this year the people of Cooma welcomed the return of regular flights, after several years' hiatus.

These flights to and from Sydney followed a great deal of hard work by many people at local, State and Federal government levels. The Newcastle-based airline Aeropelican stepped into the gap left by another airline two years earlier and began offering regular flights. The service is obviously in most demand during the snow season. However, the airline is still running services six days a week during other periods, leaving Sydney at 1.10 p.m. and returning from Cooma at 2.50 p.m. Whilst this service is a most welcome addition to the transport options for the community, unfortunately for most businesspeople and public servants these flights do not meet their need to be able to fly into Sydney between 7.30 a.m. and 9.30 a.m. and out again between 5.00 p.m. and 7.00 p.m.

I do not have access to the airline's internal data and the publicly available figures provided on the Department of Transport website seem to cover only a portion of its first quarter of operation. However, I understand from a number of seasoned observers in the community and from the airline itself that the Cooma service may not be viable in the long term on current patronage figures. We know that under current Federal legislation and regulation New South Wales regional routes are slot protected through a ring fence set at the level and seat capacity existing in 2001. The slot system was welcomed by many regional communities at the time as it provided certainty and meant they could not be crowded out by international and interstate routes, which obviously have much higher yields.

I note in passing that the Sydney-Melbourne route is now the third busiest in the world and Sydney-Brisbane is the eighth busiest. These are amazing figures for a country with a relatively small population. On these figures one can imagine that without the slot system, peak times at Sydney Airport would be taken up with flights to and from Melbourne and Brisbane only. The Nationals have taken up that cause for many years to protect regional flights into Mascot. However, an unintended consequence of the slot system is that no regional services can obtain new slots between 6.00 a.m. and 11.00 a.m. from Monday to Friday or from 3.00 p.m. and 8.00 p.m. from Monday to Sunday. These are precisely the slots required in order for the smaller regional routes to be viable. It is clearly time for these arrangements to be reviewed by the Australian Government in light of the demand for additional services from regional centres.

Let me be clear: I am not suggesting that there should be additional flights into Sydney Airport at peak times. However, I am advised by Aeropelican that additional slots should be available to regional airlines due to the reclassification of some flights into other regional centres being serviced by jets, namely, Ballina and Albury. All members will agree we cannot sit by and watch economic growth in regional communities threatened. I note that the Productivity Commission is scheduled to undertake a full review of Australia's airport economic regulatory regime in 2012, which will include all arrangements at airports, including special arrangements for regional airlines at Sydney Airport. The Australian Government has indicated that it will respond to the Productivity Commission's recommendations in 2013. Even if this timetable is met, it is far too long for communities like those in Cooma to wait and we do not want the situation where a viable service becomes unviable because of the available time slots.

I urge the Federal member for Eden-Monaro, Mike Kelly, to examine ways in which these issues can be considered at the earliest opportunity. He will have the support of The Nationals candidate, John Barilaro, to ensure we keep the Aeropelican service to Cooma at a more practical time for the community. The community needs the service from a tourism perspective during the snow season and to meet the growing demand during summer for people wanting to travel to the mountains, as well as businesspeople and public servants who need to access Sydney.

CATHOLIC CHURCH AND CHILD SEXUAL ABUSE

The Hon. IAN COHEN [1.43 a.m.]: The Festival of Dangerous Ideas was recently held in Sydney, an event that aims to provoke discussion about ideas that are usually considered too impolite to raise in the public arena. One of the talks that drew my particular attention this year was between Alan Dershowitz and Geoffrey Robertson, QC, about whether the Pope should be held accountable for the heinous and long-running crimes of sexual abuse perpetrated against children by members of the Catholic clergy. Geoffrey Robertson is an internationally renowned lawyer who has been involved in many significant human rights cases and was appointed as a jurist member of the United Nations Internal Justice Council in 2008.

In this talk he was firmly taking the position that the Pope should be indicted for crimes against humanity on the basis that the Pope and others high up in the church were directly involved in the illegal cover-up of sexual abuse by priests throughout the world, thereby aiding and abetting the continuation of this widespread practice. This is a view that is discussed in more detail in his recently published book, The Case of the Pope: Vatican Accountability for Human Rights Abuse. Geoffrey Robertson bases his argument on provisions of the Rome Statute, under which the International Criminal Court was constituted and which explicitly defines widespread or systematic rape, sexual slavery and other types of sexual violence as crimes against humanity, and on the fact that he considers the Pope to be a "spiritual advisor" rather than a head of State who may be subject to legal immunity.

The evidence for the culpability of the Pope and the church hierarchy rests on the numerous inquiries and test cases that have been held around the world. During those inquiries and test cases it became obvious that not only did the church know that there was a widespread problem with child sexual abuse but that the church actively hid the perpetrators from public scrutiny by moving them between parishes or countries to avoid retribution from victims and their families, allowing abusers to perpetuate their crimes against more and more victims. It seems that public outcry was to be feared more than what the impacts of such abuse would be on the abusers' past and future victims. One of the most damning examples of this was the experience in Ireland, as reported to the Commission to Inquire into Child Abuse by the numerous victims of the endemic system of gross physical, sexual and emotional abuse and neglect by religious and lay staff to whose care the children had been entrusted. One of the many conclusions of the commission was as follows:

Sexual abuse was known to religious authorities to be a persistent problem in male religious organisations throughout the relevant period. Nevertheless, each instance of sexual abuse was treated in isolation and in secrecy by the authorities and there was no attempt to address the underlying systemic nature of the problem.

The commission's report is a painful and heartbreaking document to read, and it is impossible to imagine how difficult it must have been to live through the experiences that are documented. There is no question that the Catholic Church knew of and covered up the abuse of children in its physical and/or pastoral care. Geoffrey Robertson argues that what we must now do is have the conviction to tackle the church head on about its denial of due process to its victims and indict the Pope for crimes against humanity. I agree with this course of action. It is not enough to rely on individual and secretive financial settlements as proper compensation for the crimes committed. There must be a public airing of the complaints in a court of law, with appropriate punishments meted out to those responsible. This has been attempted in the United States, with the Pope named in a sex abuse test case in 2005; however, this was not successful as President Bush claimed sovereign immunity on the Pope's behalf. This was on the basis of advice provided by the same lawyer who advised President Bush that the detention and torture of prisoners at Guantanamo Bay was legal under international law—surely a cause for serious concern.

The contention that the Pope is immune from prosecution as a head of state just does not stack up when examined closely. The claim that the Vatican City, of which the Pope is the head, is a wholly independent nation state belies the reality that numerous administrative and political functions are undertaken by the Holy See, which is a different entity altogether as it acts and speaks on behalf of the entire Catholic Church in all countries around the world. It is the Holy See, not the Vatican, which participates as a permanent observer, not as a member state, at the United Nations. In any case, Geoffrey Robertson's argument that the Pope is subject to international law and could be prosecuted through the International Criminal Court puts paid to any wrangling over whether he is actually the head of a state in the true sense as sovereign immunity would not apply.

I find it a strange situation indeed when societies around the world continue to accept the primacy of canon law over civil or international law when it has been shown to be so grossly and dangerously inadequate. I feel certain that the same countries that turn a blind eye to the Pope's complicity and do nothing to detain and prosecute him when he visits there would in turn be horrified if the same arguments of understanding and tolerance were extended to proponents of sharia law. The brave victims of clerical sexual abuse must not be forgotten in all of this. They deserve our support in taking on the deep-rooted belief that the Catholic Church and the Pope are somehow separate from the rest of society and should therefore be afforded concessions that are legally and morally corrupt.

ADELONG PUBLIC SCHOOL

The Hon. MICHAEL VEITCH (Parliamentary Secretary) [1.48 a.m.]: On Friday 24 September I was in attendance at the sesquicentennial celebrations of Adelong Public School, which just happens to be my old school. I attended Adelong Central School, as it was then known, from 1968 through to 1974. It was a great school then and, quite clearly from the student performances on 24 September, it is a great school now. Not a lot of schools can claim 150 years of continuous education in New South Wales, and the people of Adelong are rightly proud of their school's achievement.

The official program of the day included an outstanding traditional Aboriginal smoking ceremony and welcome to country by local Wiradjuri elder Uncle Vince Bulger, OAM. Uncle Vince conducts one of the best smoking ceremonies I have seen anywhere in my travels. There was an entertaining welcome by the Principal of Adelong Public School, Ted Conroy. Ted is quite a passionate and enthusiastic leader for his school community, and this was evident throughout his welcoming address. There was a very patriotic rendition of Advance Australia Fair and then the song Adelong Has Gold in Its Veins, by Keith Campbell, was sung, bringing tears to a few eyes in the crowd.

The sesquicentennial function was a wonderful opportunity to officially open and to inspect the school's new library, which was funded through money from the Building the Education Revolution economic stimulus program. Mr Peter Brabin, the school education director for Riverina East, capably cut the ribbon to the new library. These types of functions are never complete without a huge cake. This function was no different, and what a cake! And, yes, I certainly enjoyed a slice or two. The school choir performed Celebration and everyone was able to view an outstanding historical display and inspect the classrooms. The historical display included photographs of past students and teachers. It was fascinating to look at old school photographs of me as a young student in the 1960s and 1970s. This afternoon I showed some of those photographs to my colleagues in the Chamber. My, how we change from our schooldays!

The other historical item to draw most attention was the punishment book. Most people were keen to locate their names in the book and then to elaborate for anyone in the near vicinity of the book the reasons for that punishment. I inform members that my name is not in the punishment book. I was quite proud also to have my mother, Val, in attendance with me at the sesquicentennial celebrations. My mother and her brothers and sisters also attended Adelong Public School. Mum travelled across from Tumut for a number of the celebration events held over that weekend. I enjoyed walking though the classrooms and the playground reminiscing about my days in the old schoolyard.

What I found refreshing was meeting some of my former teachers, including my kindergarten teacher, Mrs Isaac. I was able also to have a quiet chat to Joe Schipp, another former teacher at Adelong who went on to become a member of the New South Wales Legislative Assembly. I assure members that Joe continues to have an acute mind and on the day he appeared to be enjoying good health. Celebrations such as this significant occasion do not happen unless a core group of hardworking volunteers is present. I commend all members of the Adelong Public School sesquicentennial committee and specifically extend my appreciation to Loren Curtis for her assistance and tireless work. I worked as a shearer alongside Loren's father, Colin, and each of her brothers, Greg, Grant and Blake.

I had a wonderful time at the Adelong Public School sesquicentennial celebrations. There are a number of people to thank but, as I could not do them justice in the time that I have available to me, I extend my appreciation to everyone who was involved. I place on record my appreciation for and congratulations to the people of Adelong for a fine day and a fine event, and for ensuring that past and present students, past and present teachers, and past and present members of the parents and citizens association were looked after capably on the day.

ABBOTSFORD PUBLIC SCHOOL

The Hon. DON HARWIN [1.53 a.m.]: Last Friday afternoon, along with the Leader of the Opposition and the candidate for Drummoyne, Councillor John Sidoti, I visited Abbotsford Public School to view the construction of classrooms funded by the Building the Education Revolution program. Members will recall that I moved an urgency motion in this House about this exact subject. Leaving aside the fact that the building of four new classrooms to replace four perfectly good existing classrooms is now running several months behind schedule, we were told that the demountable classrooms would have to remain because the education department got its school population estimates wrong. The incompetence of this education department knows no bounds. This is yet another example of Building the Education Revolution program bungling. The prediction before construction that there would need to be no new classrooms has been shown to be false. Unbelievable!

Question—That this House do now adjourn—put and resolved in the affirmative.

Motion agreed to.

The House adjourned at 1.54 a.m. Thursday 28 October 2010
until 11.00 a.m. on the same day.

_______________

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