Full Day Hansard Transcript (Legislative Council, 3 June 2011, Corrected Copy)

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Friday 3 June 2011

[Continuation of sitting of Thursday 2 June 2011.]

[The bells having been rung, the House resumed at 9.00 a.m. with the President (The Hon. Donald Thomas Harwin) in the chair.]

The Hon. PETER PRIMROSE [9.00 a.m.]: It is with great pleasure that I make a few brief comments in relation to the Industrial Relations Amendment (Public Sector Conditions of Employment) Bill 2011. A number of issues raised by the bill are of concern to me. The first is that the proposed changes seek to restrict the independence of the New South Wales Industrial Relations Commission. The commission will no longer be able to effectively facilitate the making of awards and agreements for public sector workers. The commission works independently, listening to the parties, hearing evidence, and conciliating and arbitrating disputes between public sector workers and their employer, the New South Wales Government. The New South Wales Police Association, the New South Wales Public Service Association, the Health Services Union and the Fire Brigade Employees Union all have agreements that are about to expire or have cases before the New South Wales Industrial Relations Commission.

The proposed changes will transfer the role played by the New South Wales Industrial Relations Commission to the New South Wales Government. The proposal, if enacted, will undermine the separation of power between government and the judiciary. Instead of public sector workers having a fair and independent umpire, the proposed changes seek to make the O'Farrell Government the prosecutor, judge and jury. My next concern is that the changes proposed by the O'Farrell Government to manage public sector wages through regulation are inappropriate. The use of regulation to attempt to manage public sector wages and conditions is inappropriate. The New South Wales Industrial Relations Commission is set up, resourced and skilled to deal with the complex matters associated with the management of New South Wales industrial relations. Regulations may be tabled for a period of time, after which they become enforceable.

The PRESIDENT: Order! There is far too much audible conversation in the Chamber. I am finding it difficult to hear the member's contribution. Members will take their seats and listen to the debate in silence. Members who wish to engage in conversations will do so outside the Chamber.

The Hon. PETER PRIMROSE: The shift with the proposed wages policy to payments above 2.5 per cent being based on the achievements of so-called employee-related savings is another concern. Without flexibility, all new agreements will be largely restricted to 2.5 per cent within the first few years. The effects of the proposed changes are that the O'Farrell public sector wage proposal will undermine the capacity of public sector employees and their unions to bargain. This will reduce the wages and conditions of public sector employees. Next, as employees are unable to advance their interests through proper bargaining, highly skilled employees will leave the New South Wales public sector. With job cuts will go service cuts. Finally, at a time when our State is growing we need more services and workers to deliver these services, not less.

I want to make it very clear that I totally support referring the bill to a committee. That is what our committee system is for in a House of review. I also wish to put to rest once and for all the nonsense that has been mentioned a few times by Government members—that the Coalition is simply implementing Labor policy. Labor did not propose to tear away the functions of the Industrial Relations Commission. Labor did not propose to turn this place into a pseudo industrial court. I turn now to some of the detail of the bill. If this bill is carried into law it will enable the Government to immediately cut the wages of any public sector worker and to immediately cut the employment conditions of any public sector worker, with no guarantee that they will receive a wage increase in return. All of this can happen without workers having access to an independent umpire because the Industrial Relations Commission will be bound to enforce the Government's policy. That is why this bill is worse than WorkChoices.

In New South Wales, the Industrial Relations Commission is the practical and legal successor of the original Court of Arbitration, founded in 1902, and the Industrial Commission, established in 1926. It is the longest-serving court or tribunal not only in Australia but also in the world. The only body anywhere with a comparable history of long service is the United States National Labour Relations Board, which was established in the mid 1930s. The predecessor organisations to our Industrial Relations Commission were established when all parties involved in industrial affairs in New South Wales—the workers, their representatives, employers and the Government—realised that industrial relations needs an independent umpire to stand between employers and employees and to make reasoned and fair decisions on pay and working conditions.

In this State all stakeholders came to that realisation more than a century ago, but today the ideological obsessions of those in charge of the O'Farrell Government have made it blind to these hard-won and enduring lessons. We have had more than 100 years of carefully considered independent legal thinking; 100 years of an independent umpire in the conciliation and arbitration of workplace disputes; and more than 100 years of judges, commissioners and officers dedicating themselves to serving and advancing the people and enterprises of New South Wales. Today all of that is in danger. No government should take the decision lightly to interfere in such a dedicated organisation without justification, without consultation and, most critically, without a mandate.

The Industrial Relations Act 1996, which this bill proposes to amend, is widely considered to be one of the most significant pieces of legislation introduced by the late Hon. Jeff Shaw, QC. Both the now Leader of the Government in this place and I were sworn in as members just prior to the passage of this legislation and, while we were often on opposite sides in the many divisions associated with the passage of that bill, I know that he shares with me a great admiration for the tenacious, courteous and thoughtful role that Jeff played as a legislator in this place. I note that it is just over a year since Jeff Shaw passed away. The Industrial Relations Act 1996, which this bill seeks to amend, has been described as a masterpiece of simplicity compared with the debacle that was the Industrial Relations Act 1991, which was introduced by the then Greiner Government. The objects of the Industrial Relations Act 1996 are as follows:
      (a) to provide a framework for the conduct of industrial relations that is fair and just;

      (b) to promote efficiency and productivity in the economy of the State;

      (c) to promote participation in industrial relations by employees and employers at an enterprise or workplace level;

      (d) to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies;

      (e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments;

      (f) to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value;

      (g) to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality; and

      (h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations.
I have read those objects onto the record because, as with any piece of legislation, the mischief they seek to remedy is very important. The policies, the history and the development of that legislation are important as we now seek to amend it. Amending legislation is not something that is done lightly. The courts ultimately will consider not only the black letter but they will also consider the development and the history of the legislation when they are interpreting the legislation and the will of this place. I have always recalled two things in particular that Jeff said in his second reading speech at the time. First, he said:
      I would like to remind the House that I established and chaired a working party of peak industrial organisations to discuss and develop reform proposals for New South Wales. There were extensive opportunities for the community at large to provide input. The bill reflects the views and input of key players with vast experience in the industrial relations field. The outcome has been that when the New South Wales legislation was released last year it was greeted as a balanced, well-drafted piece of legislation which would facilitate harmonious employer-employee relations in this State. It was particularly well received by industrial relations practitioners, whose involvement and support will be crucial to making the new legislative scheme a success. It was noteworthy that the bill received the broad support of key employer groups.
Secondly, he said:
      The objects of the legislation are particularly significant because the bill requires the Industrial Relations Commission to take into account the public interest in the exercise of its functions and, for that purpose, to have regard to, inter alia, the objects of the legislation. Hence, the commission will be required in its work to have regard to promoting workplace reform and improved workplace relations. The decision to add this new object to the bill reflects the Government's commitment to changing workplace attitudes and culture in order to create more productive workplace relations, while at the same time protecting employees' rights and entitlements.
In the conclusion of that part he said:
      This particular legislative initiative will be matched by revitalisation and improvement of the policies and services of the Department of Industrial Relations so as to create a climate which is conducive to and fosters cooperative workplace change, and hence micro-economic reform.
When one considers those comments and the statements about that particular piece of legislation, one can see how different it is from this bill. The bill has been sprung on the people of New South Wales without any consultation. It was not presented, raised or mentioned at the recent State election and people are still debating what its implications may or may not be. We have already heard from one speaker that, apart from anything else, he has been given an assurance that certain things may or may not happen. While I do not doubt the good intentions and goodwill of the member as to that, this place is not simply about assurances given behind closed doors by one person to another. That is not what legislation is about. Legislation is about having the item included in the law.

Reverend the Hon. Fred Nile: It will be in the regulation. You can disallow the regulation.

The Hon. PETER PRIMROSE: The honourable member indicates that the matter will be in the regulation. I would like to see that regulation. Taking up the point made by Reverend the Hon. Fred Nile in numerous debates—and I am not questioning his goodwill in this matter—I suggest that the people of New South Wales deserve to see what the regulation says in black and white before the legislation is considered. I think it is a reasonable request that the regulation should be presented and tabled in this place before the bill is debated at the second reading stage. Recently Justice Boland, President of the Industrial Relations Commission, spoke about the Industrial Relations Act 1996 at the Jeff Shaw Memorial Lecture. In speaking of the Act we are proposing to amend he stated:
      One of the outstanding monuments to Jeff Shaw, however, is the Industrial Relations Act 1996. Whether it will be lasting remains to be seen. The Act is a masterpiece of simplicity compared to the debacle that was the 1991 Act and the counterpart federal legislation. Yet it provides an unparalleled framework for the conduct of industrial relations that is fair and just. It was drafted following extensive consultation with employers and unions and, unlike its federal counterpart, was not drafted with an eye to political considerations, but rather what was the model best meeting the interests of the industrial parties, and ultimately the people of the State.
From the outset the 1996 Act was well received by all industrial parties: employers, employees and the general community. It delivered fair and reasonable wages and employment conditions through the award system. It provided an efficient and very effective system of conciliation and arbitration for resolving industrial disputes, something not available federally. It gave individuals access to remedies for unfair dismissal and appeal rights to public servants in respect of promotion and discipline. It provided access to remedies for unfair contracts and protection for outworkers. It enabled test cases for matters such as pay equity. It allowed job security and reasonable hours.

It encouraged representative bodies of employers and employees by giving them a principal role in the Industrial Relations Commission rather than conceiving of this House as a pseudo court. In 2004 Peter Lewis commented in newmatilda.com on the late the Hon. Jeff Shaw's contribution to developing that Act. I am citing the history and details of the legislation for a number of reasons. First, the bill is not something that has come out of thin air. I am not sure exactly where it came from, but the bill proposes to amend the 1996 Act. If we are about to amend the principal Act, it is important to be aware of what the principal Act sought to achieve, the policy that was envisaged in the development of that legislation, and the outcomes in this House.

Secondly, I make the point that, unlike this legislation, that legislation was enacted on the basis of broad consultation and consensus as well as agreement, which constitutes a marked difference between that legislation and the legislation before the House. I make those points by referring to the development of the 1996 Act, how it was received by all parties to the industrial bargain, and the development of that Act. Peter Lewis stated in relation to the 1996 Act:
      Unlike the perversion of industrial relations that is the federal system; the NSW system was based on the principles of fairness and equity alongside productivity, making the Commission a meaningful umpire with the power to settle disputes, deliver wage decisions and improve the social wage through test cases and ministerial references.
The 1996 Act represented a watershed in labour law in Australia. The Federal Coalition Government commenced a significant reconstruction of the Federal system, which culminated under WorkChoices and in the complete dismantling of the century-old system of conciliation and arbitration in Australia. I am not seeking to make a political point, but as all members would be aware, that experiment was unsuccessful, although remnants remain under the Fair Work Act 2009. Some have sought to explain that phenomenon by reference to the onslaught of globalisation, but that is not an entirely adequate explanation: undoubtedly, there was an ideological underpinning of the drive for change. Consultation was minimal. Does that sound familiar?

In contrast to that, the late the Hon. Jeff Shaw adopted a completely different model in his 1996 Act, which we are seeking to amend today should this bill become law. He infused the old conciliation and arbitration system with newer elements of enterprise bargaining and minimum legislative standards of employment. The new system was built on the back of a tripartite consensus and allowed flexibility, investing trust in the long-established commission to mould fair and economically sound outcomes in the circumstances prevailing from time to time. It was a case of an orderly system of regulation engineered by someone at the forefront of legal, economic and political understanding of what was necessary.

It should not be assumed that in designing that system the Hon. Jeff Shaw was not mindful of the impact of the commission's decisions on the economy of the State. The Hon. Jeff Shaw strove to set a balance between inevitably competing considerations, and his legislation required the tribunal to take into account the public interest in the exercise of its functions. For that purpose, the commission was required to have regard to the state of the economy of New South Wales and the likely effect of its decisions on that economy. Now further fundamental changes being proposed to the Hon. Jeff Shaw's legacy are the very antithesis of what he sought to create in the 1996 legislation.

The Industrial Relations Amendment (Public Sector Conditions of Employment) Bill 2011 aims to curb the commission's powers to determine the conditions under which public sector employees are employed. Unlike the Hon. Jeff Shaw's 1996 legislation, this attempt at industrial legislation reform has been undertaken without any consultation with the commission as to its terms. Specifically, the bill proposes that the commission, when making or varying an award or order, will be required to give effect to any policy under conditions of employment of public sector employees. That includes nurses, teachers, police, ambulance officers and firefighters. The specific proposals outlined in the explanatory notes to the bill state:
      (a) that is declared by the regulations to be an aspect of government policy that is required to be given effect to by the Commission, and

      (b) that applies to the matter to which the award or order relates.
The bill before the House is framed in very wide terms and is not limited to wages. Its effects are that, first, the commission must give effect to any government policy on public sector employment conditions; and, secondly, any award or order the commission might make may be negated by regulation. That Parliament would directly fix wages and salaries for government employees, rather than an independent tribunal, is a novel proposition in Australia—to put it kindly. No other State or Territory does so; nor does the Commonwealth. Nevertheless, subject to questions of validity, it is undoubtedly the case that Parliament may enact the changes proposed by the Government.

There are serious legal concerns in relation to that matter with which I will deal in greater detail later, but I am not suggesting that I am a lawyer. Others who are serious counsel have raised them and I want to bring those to the attention of the House as part of my contribution to the debate. Leaving aside the issue of legality, one thing is crystal clear—and that is the pernicious effect of this bill on the commission's independence. That is of particular concern, given the commission's proud tradition of independence. As a result of this legislation, tribunal members, who include judges sitting as the commission as opposed to the court, will be able to be directed as to how they may exercise their discretion. In effect, that means they will be placed in a straitjacket and the test of "fair and reasonable" that the legislation before the House requires will no longer be permitted to be applied.

The capacity for judges and non-judicial members to mould outcomes to suit the particular circumstances of a particular case will no longer be available. Accordingly, one of the hallmarks of the model that was developed in the lead-up to the Hon. Jeff Shaw's 1996 legislation will be removed by this legislation. It is apparent from statements made by the Minister during his second reading speech that one objective of the bill is to require the commission to observe the Government's wages policy. Indeed, that seems to be the genesis of the bill. It is notable that the policy does not refer to productivity or efficiency measures but, rather, employee-related reform measures and cost savings. It is directed to the cost of employing people, not to achieving savings through improvements in productivity or efficiency.

It follows that if this bill becomes law in New South Wales the commission will be unable to apply its wage-fixing principles—principles that have been developed over 100 years. Those principles, which were modified earlier this year, allow for wage claims to be made that are based on the work of value considerations, productivity and efficiency considerations, and equal remuneration.

The Industrial Relations Commission has always sought to avoid a crude cost-cutting approach. Under the proposed legislation, unless the parties reach agreement on employee-related savings as distinct from productivity and efficiency improvements, any increases in wages and salaries will be limited to 2.5 per cent and those considerations will be excluded automatically. The wages policy will apply to all future wage claims and to claims currently before the Industrial Relations Commission. In terms of this bill, as opposed to any other matters that may be considered, that includes claims by the Police Association and claims made by the Public Service Association. Both these claims have been scheduled for hearing before the Full Bench of the Industrial Relations Commission later this year.

The Industrial Relations Act 1996 continues to serve the people of this State well. We are dealing with an amendment bill that seeks to amend this important legislation that will adversely affect 400,000 public sector workers. A reasonable government would consider amending the Industrial Relations Act 1996 only if it had a mandate to do so and only after careful consideration and consultation with its public sector workforce. This bill will prevent the Industrial Relations Commission from being an independent umpire in determining the wages and conditions of these 400,000 public sector workers. The Industrial Relations Commission will now be bound to do the Government's bidding regardless of whether the outcome is fair or reasonable for the workers before it.

Indeed, 100 years of expertise and experience in providing fairness in wages and justice to ordinary working people will be thrown away. Our public servants in New South Wales have served this State with distinction— our police, nurses, teachers, child protection workers, workers in aged care services, school counsellors, workers with people with disabilities, workers in national parks, workers in transport, engineers in the Roads and Traffic Authority, and many others. These 400,000 good, decent, hardworking people in this State deserve an independent umpire to decide their wages and conditions. But if this bill is passed, all that will change. Barry O'Farrell will become the prosecutor, the judge and the jury.

Since the election this Government has displayed a pattern of behaviour in which it attacks workers at any opportunity. We saw this with the community service workers equal pay case and the Government's attack on the rights of women to achieve pay equity. We saw it with the Occupational Health and Safety Amendment Bill 2011 and the Work Health and Safety Bill 2011. We are seeing it all over again with this particular piece of legislation. It is all control for the employer for Barry O'Farrell. There will be no consultation or an independent umpire for workers. There will be no procedural fairness in relation to public sector wage claims. This bill represents an historic turning point for hardworking families in New South Wales. It must be stopped.

It is proper that I remind honourable members that this Government does not have a mandate to introduce this bill. The Coalition, when in opposition, had many opportunities and ample time to advise the voters about these plans and obtain a proper democratic mandate for this bill. The Government had many opportunities to do that. This bill consequently represents a betrayal of the goodwill and trust that the people of New South Wales bestowed on the O'Farrell Government just two months ago. Thousands of police, nurses, those working with people with disabilities and the aged, national park workers, forestry workers, Roads and Traffic Authority workers, transport workers, school counsellors, those who work in maritime, teachers, special needs teachers, special care nurses, paediatric doctors, firefighters, search and rescue specialists, caseworkers, mental health workers and many others in the New South Wales public service did not vote for their pay packets to be cut. We cannot even be told at this point which of those people are so-called front-line workers and which are not. These hardworking men and women did not vote for their conditions to be slashed. They did not vote for an outright attack on the independent umpire.

During this debate we have heard allusions to regulations. We need to see the regulations. I appreciate that this piece of legislation has been rushed without consultation but, if one is proposing to introduce substantial regulations as a consequence, the details of those regulations should be presented now as part of this legislation. They are not simply supplementary, incidental, or flowing from the legislation; those regulations are integral to our consideration of this legislation.

We can have all the goodwill in the world—and I am not suggesting that is not there amongst many members—but we need to actually see the proposal because at this point it seems unclear. Accordingly, I cannot go to any particular person or group in New South Wales and say with absolute confidence, "You are a front-line worker," because I do not know. I look forward to people listing who they believe are the so-called front-line workers and who are not. I would like to see that in black and white. That is what this House deals with. That would help me and other members understand the full implications of this legislation.

How exactly does Barry O'Farrell hope to recruit more nurses, teachers, school counsellors and police by enforcing a policy that will make the public service in New South Wales less attractive to work in, let alone recruit more nurses, teachers and police to rural and regional New South Wales? I seriously wonder whether members from rural and regional communities have really thought about how this legislation will affect people in country New South Wales and how it will affect their care services, safety and protection.

By seeking to strip the independence of the Industrial Relations Commission and forcing it to apply an arbitrary wages policy, the Government is abandoning all opportunities to openly and properly consult with Government employees. Where are the discussions? Where are the consultations with stakeholders on industrial relations issues and the better delivery of services? We have not seen any discussions or consultations. They have not even had discussions with the Industrial Relations Commission. Where are the parties who will be directly affected by this legislation in the discussion?

I highlighted earlier the extensive discussion, debate and overall goodwill subsequently developed by the work of the Hon. Jeff Shaw in the development of the Industrial Relations Act 1996. That does not exist here. That is why there is suspicion; that is why people are very concerned and why we want to see these regulations in black and white. In the absence of clarity on these matters, in the absence of regulations, in the absence of any sense of trust by actually having discussions with the parties prior to trying to seek to ram this legislation through, this matter should be referred to a committee of this House to allow that consultation to take place.

We need to give people who will be directly affected by this legislation and who have not been consulted the opportunity to come before General Purpose Standing Committee No. 1, I presume, to tell the committee members, and accordingly all members of this House and the people of New South Wales, how they believe this legislation will affect them. We need to give them the opportunity to make suggested changes and for their voices to be heard. The voices of the people who will be directly affected by this legislation have not been heard. They have not been heard about how they will be affected by this legislation. They have not been heard because in the lead-up to the election they were not advised about this substantial change, which does not exist anywhere else in this nation. The Government did not put it before them before the election to seek a mandate.

Further, the Government is now saying that the House of review cannot have an inquiry to allow this matter to be properly examined before it is carried. That is the purpose of the House of review. That is the reason we set up general purpose standing committees. The Hon. Jeff Shaw undertook extensive consultation. That is why his legislation was so well received and this legislation is not being well received at all. I compare the approach taken by the Government in this bill to the legislation introduced by the Hon. Jeff Shaw. That 1996 legislation was the product of comprehensive consultation with all interested parties. I quote the Hon. Jeff Shaw in Hansard on 23 November 1995 following the release of the exposure bill:
      This Government has approached the issue of industrial relations reform by seeking broad consensus and by formulating legislation which attempts to incorporate a fair balance between competing views.

The Hon. Jeff Shaw was proud of the consultation that went into his legislation. I quote him again in Hansard on 23 November 1995 in this place:
      The first stage of the reform process involved a comprehensive consultative process to review the present legislation. I established, and chaired, a working party of peak industrial organisations to discuss reform proposals.

I refer to his comments because I believe it is important to look at the breadth of consultation that took place. The Hon. Jeff Shaw continued:
      The working party met on 11 occasions throughout April to November, and I am grateful for the members' contribution to the review process. The working party comprised employer nominees from the Confederation of Employer Organisations, the Metal Trades Industry Association of Australia (New South Wales Branch), the Chamber of Manufactures of New South Wales, the Retail Traders Association of New South Wales and the Employers Federation of New South Wales. From the union side, nominees were put forward by the Labor Council of New South Wales, including representatives from the Labor Council itself and the Transport Workers Union of Australia (New South Wales Branch), the New South Wales Teachers Federation and the Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division (New South Wales Branch).

      The working party's discussions have been ably augmented and assisted by the Blake Dawson Waldron Professor of Industrial Law at the University of Sydney, Professor Ron McCallum, and Conciliation Commissioner Donna McKenna … In addition to the working party process, a public review, coordinated by the Department of Industrial Relations, commenced in April of this year. More than 40 written submissions were received from parties as disparate as BHP Proprietary Limited and individual taxidrivers. Discussions have also been held with organisations such as the New South Wales Farmers Association, the Meat and Allied Trades Federation and the Small Business Combined Association.

I will not read the quote in full, but he concluded his comments on the exposure bill by saying:

      We have taken on board constructive comments and suggestions flowing from the second stage of the consultative process. The result is that the industrial relations community and other practitioners have had a real impact on the fashioning of this legislation throughout the review process undertaken in the last six months.

He finished by saying:
      I wish to advise the Chamber of the overall public response to the style, content and size of the draft legislation. A conscious effort has been made by the Government to streamline and simplify the legislation … it has been drafted in plain language, designed to assist in its accessibility. The response in many submissions has confirmed that the Government has achieved the important goal of making the principal industrial relations legislation in this State a workable and understandable document.

I compare that approach to the approach taken by this Government to the bill before the House. In relation to this bill there is great uncertainty about the meaning of a number of its terms. People are still seeking clarification. We now have been told that clarification may occur by way of regulation. I accept that regulation on subordinate legislation is an appropriate and necessary part of the legislative process but it should not be used to clarify the extent of the principal Act. The purpose of a principal Act is to make clear the effects of the legislation and the mischief it seeks to ameliorate. Regulation should not replace the purpose of the principal Act. That is how the late the Hon. Jeff Shaw went about reforming industrial relations. He spoke about consultation and the consideration of everyone's views, employers and employees alike. In Hansard on 23 November 1995 the Hon. Jeff Shaw quoted the Executive Director of the Motor Traders Association. He said:
      The Executive Director of the Motor Traders Association continued:

      … we acknowledge that the majority of its contents were pronounced well before the election that brought the Carr Government to power.

      Importantly, the legislation indicates a willingness on the part of Attorney General and Minister for Industrial Relations, Jeff Shaw QC, to give impartial consideration to the viewpoints of both employers and unions in matters of critical importance to both groups. Before and following the New South Wales election, we met with Mr Shaw to express our position as the representative of the proprietors of more than 6,500 members and affiliated businesses across the State … Mr Shaw listened to our representations and we believe the draft legislation reflects a number of our concerns.

That is the way to develop legislation when one is seeking consensus. It is done by talking to those who will be affected. It is done by listening to their voices and taking their views into account. It is a decent process that ensures that when legislation is enacted it not only has the force of law but also has some degree of moral authority. This piece of legislation we are considering today, by virtue of it having been brought on so quickly without any consultation, does not have that moral authority. The 1996 legislation is a testimony to the reasonable and decent process that led to the package of industrial relations legislation that was introduced by the Hon. Jeff Shaw.

By contrast, the O'Farrell Government does not have a mandate for this bill. It did not present the bill to the people prior to the election, nor did it even suggest that it was being contemplated. When this Government did speak on industrial relations before the election, such as representations made by the then shadow Minister for Police to the Police Association of New South Wales, it set out a position that clearly is inconsistent with its current conduct. Do we have a bill before us that has been part of a consultation process? No, we do not. Incredibly, it was during question time in the other place on 12 May that the O'Farrell Government announced this policy. That was it; no consultation. The voters knew nothing about this legislation; they did not know it was coming. No policy platform was presented to the voters of New South Wales—nothing.

The New South Wales Industrial Relations Commission has sought openly to do its job, as it should under the law, independently, fairly and in consideration of the objects of its Act. As Justice Boland indicated, the ability of the commission to be flexible and to act independently has enabled it to facilitate agreements between agencies and employees. However, the O'Farrell Government believes the commission itself is the problem. This speaks of a broader and, I suspect, a darker agenda at which we can only guess. Turning specifically to the bill in detail, in the past week we have been informed, as I indicated earlier, by a number of barristers that the bill may be unconstitutional. I shall first consider the bill in detail and then return to this legal opinion. The Industrial Relations Amendment (Public Sector Conditions of Employment) Bill has only one object listed and it states:
      The object of the bill is to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to aspects of government policy declared by the regulations relating to NSW public sector conditions of employment.

The outline of provisions commences with schedule 1 [2] and states:
      Schedule 1 [2] inserts proposed section 146C into the Act to give effect to the object of the proposed Act. The proposed section requires the Industrial Relations Commission ... when making or varying an award or order to give effect to any policy or conditions of employment of public sector employees.

      (a) that is declared by the regulations to be an aspect of government policy that is required to be given effect to by the Commission, and

      (b) that applies to the matter to which the award or order relates. The proposed section will not apply to proceedings before the Commission in Court Session (known as the Industrial Court).

      ...

      The proposed section extends to proceedings on appeal to the Full Bench of the Commission and to proceedings pending on the commencement of the proposed section. Public sector employees are defined to cover the Government Service, the Teaching Service, the NSW Police Force, the NSW Health Service, the service of Parliament and other public sector employees.

I am not too sure whether staff in this House would be regarded as front-line staff. Further provisions state:
      Schedule 1 [1] makes a related amendment to the unfair contracts jurisdiction of the Commission to provide that a contract is not unfair merely because it gives effect to the declared government policies referred to in proposed section 146C.

      Schedule 1 [3] authorises the making of savings and transitional regulations consequent ...

I shall not go through the amendment as members can read it.

The Hon. Melinda Pavey: Thank you for that.

The Hon. PETER PRIMROSE: I will not labour the point. Nevertheless, it is important to consider again the development of this bill. How did the industrial relations policy we are seeking to amend actually develop in New South Wales? I return to the development of the 1996 legislation that this bill seeks to amend: the Court of Arbitration Act 1901. It was a court of record constituted by a president, who was a Supreme Court judge, and two members representing employers and employees respectfully. The court came about as a result of the failure of employers and unions to use a system of voluntary arbitration. The court had jurisdiction to hear and determine any wage dispute or matter referred to it by an industrial union or the registrar. It prescribed a minimum wage and made orders or awards pursuant to such hearings or determinations.

This court and its registry, the Industrial Arbitration Office, came under the administration of the Department of Attorney General and Justice from 12 December 1901—already, the issue was about balance. The Industrial Court established by the Industrial Disputes Act 1908 was constituted by a Supreme Court or District Court judge appointed for a period of seven years. The court did not require the existence of a dispute to ground its jurisdiction and had power to arbitrate on conditions of employment and could hear prosecutions. Together with its registry, known during 1911 as the Industrial Registrar's Office, the court remained under the administration of the Department of Attorney General and Justice. The Act established also a system of industrial boards that consisted of representatives of employers and employees sitting under a chair. The Industrial Court heard appeals from the industrial boards.

The Court of Industrial Arbitration was established by the Industrial Arbitration Act 1912. It was constituted by judges, not exceeding three, with the status of judges of the District Court. The court was vested with all the powers conferred on all industrial tribunals and the chair. The Act empowered the Minister to establish conciliation committees with powers of conciliation but not arbitration. The committees fell into disuse after about 12 months and a special commissioner, later known as the industrial commissioner, was appointed on 1 July 1912. Again, this shows the development process over the past 100 years that led to the 1996 Act that this bill proposes to amend and in many ways gutted. This court and its registry were placed under the jurisdiction of the Department of Labour and Industry, which administered the Act from 17 April 1912.

A royal commission on industrial arbitration in 1913 led to some major changes under the Industrial Arbitration Amendment Act 1916, resulting in an increased membership of the court and the transfer of powers of the industrial boards to that court. The Board of Trade was established by the Industrial Arbitration Amendment Act 1918. It functioned concurrently with the Court of Industrial Arbitration and was constituted by a president, who was a judge of the court, a vice-president and representatives again of employers and employees. The board's functions were to conduct a public inquiry into the cost of living and declare an adult male and female living wage each year for industry generally and for employees engaged in rural occupations. In addition, it was to investigate and report on conditions in industry and the welfare of workers.

The board was, in practice, particularly concerned with matters relating to apprenticeships—again demonstrating 100 years of development. The Industrial Arbitration Amendment Act 1926 abolished the Court of Industrial Arbitration and the Board of Trade and set up an Industrial Commission constituted by a commissioner and a deputy commissioner. The commissioner or deputy commissioner sat with employer and employee representatives from a panel. On any reference or application, the commission could make awards fixing rates of pay and working conditions, determine the standard hours to be worked in industries within its jurisdiction and have the power to determine "any industrial matter".

The commission had authority to adjudicate in cases of illegal strikes, lockouts or unlawful dismissals and could summons persons to a compulsory conference and hear appeals from determinations of subsidiary industrial tribunals. The former boards, which had not exercised jurisdiction since 1918, continued in existence but as conciliation committees with exclusive new jurisdictions in arbitration proceedings. A number of controversial decisions by the Industrial Commission led to the proclamation of the Industrial Arbitration Amendment Act 1927, which abolished the position of industrial commissioner but not the deputy industrial commissioner. The constitution of the commission was altered to that of three members with the status of Supreme Court judge.

The committees were still the tribunals of first instance and their decisions were to be the majority of members other than the chair whose decisions could not be accepted by agreement if the members were equally divided, otherwise the chair had no vote and no part in the decision. Where a matter remained unresolved in committee it passed to the commission for determination. I am seeking to enunciate that through hard-won trials over a century we saw the development of a system that has worked in the best interests of the people of New South Wales. That is why I have addressed the development of the court in the legislation that we are seeking to amend today. In 1932 under the Industrial Arbitration Amendment Act the emphasis fell on conciliation. The positions of deputy industrial commissioner and chair of the conciliation committees were abolished and a conciliation commissioner was appointed to fill the latter position.

The Act also provided for the appointment of an apprenticeship commissioner and for the establishment of apprenticeship councils. The conciliation commissioner could call compulsory conferences in industrial disputes to effect an agreement between the parties when sitting alone or between the members of the committee when sitting as chair. Any such agreement, when reduced to writing, took effect as an award but was subject to appeal to the Industrial Commission. In addition, the conciliation commissioner or a conciliation committee could not call witnesses or take evidence except as directed by the Industrial Commission. Unresolved matters were referred to the commission.

The membership of the commission was increased to four by the Industrial Arbitration Act 1936 and certain provisions regarding appeals were altered under that Act and, again, that is referred to in the development of the 1996 legislation. The Industrial Arbitration Amendment Act 1937 repealed the commission's power of determining a standard of living and wages, and provided for the adoption of the needs basic wage and fixed loadings determined by the Commonwealth Court of Conciliation and Arbitration. Here we are seeing the role and the development of the Commonwealth jurisdiction. In 1938 the number of members of the commission was increased to no less than five and no more than six in the Act.

The Industrial Arbitration and Workers Compensation Amendment Act made provisions regarding investigation of rents and certain price fixing. The Act was again amended in 1939 mainly to address the fixing of maximum prices. The Industrial Arbitration Act 1940 consolidated all of the previous Acts and an attempt was made to refine and rationalise the procedures and operations of the Industrial Commission. The Act provided for the establishment of an Industrial Commission, conciliation committees, conciliation commissioners, special commissioners, industrial magistrates courts and, of course, the industrial registrar. The Industrial Arbitration Amendment Act 1943 empowered the chair, with the agreement of members or by special authorisation of the Industrial Commission, to decide matters where there was division.

The number of commissioners who might be appointed was also increased to five. The Industrial Arbitration Amendment Act 1948 enabled the commissioners to decide matters upon on which the members were equally divided, as well as make an award where the disputing parties have been called into a compulsory conference. In 1955 the maximum number of members of the Industrial Commission was increased to 12, and the next raft of significant changes came with the Industrial Arbitration Amendment Act 1959. These changes included defining wage-fixing powers, and industrial committees and appeal provisions were also reformed. Now I am moving into more recent times. The development speeds up in the latter part of the last century.

In 1979 the Act was again amended to make provision for the establishment of contract regulation tribunals. Generally this gave the commission jurisdiction over contracts for the bailment of taxi cabs and private hire cars and over contracts for the transportation by motor, lorry or loads other than passengers. In 1981 and again in 1989 the commission's powers in relation to dealing with apprentices were clarified. In 1989 the Industrial and Commercial Training Act was passed and apprentices were treated as other employees for all industrial purposes. By 1989 the Act provided that the Industrial Commission consisted of not more than 12 members, one of whom was the president and one of whom was the vice-president. The Act also provided for the appointment of non-judicial members who did not have to be legally qualified, as well as judicial members. There were certain jurisdictional limitations for non-judicial appointees.

In 1988 the then Coalition Government commissioned a comprehensive review of the State's industrial laws and procedure, and I commend it for conducting a comprehensive review—no attempt was made to ram it through without consultation. The subsequent report, the Niland Report, had far-reaching recommendations and became the basis for the Industrial Relations Act 1991. The former commission was abolished and replaced by the Industrial Relations Commission and a separate Industrial Court. Two of the key features of the report were the introduction of enterprise bargaining outside the formal industrial relations system with agreement specifically tailored to individual workplaces or businesses and the provisions relating to unfair dismissal. Individuals could access the commission if they believed they had been unfairly dismissed. The remedy was reinstatement and/or compensation.

As I have indicated previously, as part of this 100-year development, on 2 September 1996 the Industrial Relations Act 1996 came into effect. It repealed and replaced the 1991 Act and is an example of plain English statute law. Chapter 4 of the Act established a new Industrial Relations Commission. Unlike the Federal approach, the States have not separated judicial and administrative functions in relation to the commission's powers. The 1991 Act sought for the first time to adopt the Federal approach and establish the Industrial Relations Commission and the Industrial Relations Court, although the judges remained members of the commission at all times. The 1996 Act restored the traditional arrangement by merging those two bodies. When the commission was dealing with judicial matters it was called the Industrial Relations Commission of New South Wales in Court Session and was a superior court of record of equivalent status to the Supreme Court. Therefore, very briefly, 1988–

The Hon. Melinda Pavey: In conclusion?

The Hon. PETER PRIMROSE: In conclusion in relation to going through the history. I thank the member for her attention. It is very important to understand that the Government is seeking to tinker with what has been developed over 100 years by the very hard work of employers, employees and members of this Parliament of all political persuasions. In 1988 the then Premier, the Hon. John Fahey, MP, as Minister for Industrial Relations, commissioned Professor John Niland to prepare a green paper on industrial relations in New South Wales.

In 1989, Volume 1 of the green paper was released, transforming industrial relations in New South Wales. Volume 2 of the green paper was released in January 1990. Volumes 1 and 2 of the green paper addressed 11 major policy areas. I stress that I am referring to issues in relation to consultation leading up to the development of legislation, and I am commending the Hon. John Fahey—for whom I have great respect—for his dedication in developing a process of consultation prior to the introduction of legislation. As I said, Volumes 1 and 2 of the green paper addressed 11 major policies: an enterprise focus—

The Hon. Catherine Cusack: Point of order: Mr President, the member is quoting from a public document that is available from the Parliamentary Library. Consistent with your rulings, I ask that you direct the Hon. Peter Primrose to summarise the information contained in that document instead of reading extensively from it.

The PRESIDENT: I ask the Hon. Peter Primrose to identify the document again.

The Hon. PETER PRIMROSE: I am quoting from a two-page document entitled "Commentary on the Exposure Draft of the Industrial Relations Bill 1995", which comes from the Parliamentary Library.

The PRESIDENT: It is a Parliamentary Library publication?

The Hon. PETER PRIMROSE: Yes, two pages. I simply seek to go through two pages.

The Hon. Lynda Voltz: To the point of order: There have been numerous interjections of this type during this debate. Whenever a member on this side of the House tries to outline their concerns about this legislation, members on the other side seem to believe that we can pull facts from out of nowhere, and if we refer to any document at all to highlight concerns within the community they automatically try to rule it out. Information provided by members to the Chamber comes overwhelmingly either from consultation with people or from documents—that is the reality.

The Hon. PETER PRIMROSE: To the point of order: The purpose of the Parliamentary Library in producing documents is to inform, in particular, honourable members for the purpose of debate. I simply wish to quote from two pages of a document. I do not seek to bring the whole document into the debate.

The Hon. Catherine Cusack: To the point of order: I understand that members want wide-ranging latitude in debates on industrial relations. My point of order relates to a statement by the Hon. Peter Primrose that he is about to go through 11 recommendations from a green paper that is more than 20 years old. I do not believe that the green paper has any direct bearing on the bill before the House and that is why I am requesting, consistent with previous rulings, that the information be summarised more succinctly, particularly as it does not appear to have a direct bearing on the bill before the House.

The PRESIDENT: As I have consistently ruled on this issue during the debate, it is the practice and precedent of the House that when quoting from a document members should identify the document, which the Hon. Peter Primrose has done, precis its contents and quote selectively and briefly from that document. It is clear that the Hon. Peter Primrose does not propose to quote the entire document. However, I draw to his attention the ruling made by President Willis in June 1996, which is that it is important that he only quote selectively and briefly and, as far as possible, precis the contents of the document.

The Hon. PETER PRIMROSE: I inform the Hon. Catherine Cusack, to allay her concerns, that I do not seek to go through the findings of Volumes 1 and 2 of the green paper, I simply seek to list the headings that were considered in that green paper.

The PRESIDENT: Order! The Hon. Peter Primrose has the call.

The Hon. PETER PRIMROSE: I am referring to the breadth and scope of the consultation that took place in relation to the development of the legislation. Volumes 1 and 2 of the green paper addressed 11 major policy areas, and I will list the headings: An Enterprise Focus; The Industrial Tribunal System; Trade Unions; Employers and Management; Industrial Action, Compliance and Enforcement; Antidiscrimination and Industrial Relations, Compliance and Enforcement; Training for Skills and Industrial Stability; Equity Considerations; Productivity, Efficiency and Participative Practices; Occupational Health and Safety; and the Department of Industrial Relations and Employment.

The Industrial Relations Bill was introduced in 1990 but failed to pass. The Industrial Arbitration (Enterprise Agreement) Amendment Act 1990 commenced on 21 May 1991. The Industrial Arbitration (Unfair Dismissal) Amendment Act 1991 commenced on 5 July 1991, and the Industrial Relations Bill was passed and received assent on 11 November 1991. I will precis the remainder of the document. In 1992 the Industrial Relations Act 1991 commenced; in 1993 there were further pieces of legislation—the Industrial Relations (Sick Leave) Amendment Act, the Industrial Relations (Public Vehicles and Carriers) Act 1994, the Industrial Relations (Contracts of Carriage) Amendment Act and the Courts Legislation (Mediation and Evaluation) Amendment Act 1995. As I have indicated previously, New South Wales Labor's industrial relations policy was released on 21 February 1995 and the exposure draft of the Industrial Relations Bill 1995 was released for public comment prior to the introduction of the bill in Parliament on 23 October 1995. I thank the House for its indulgence in allowing me to talk briefly about the development.

Where is the O'Farrell Government leading us with this legislation? I suggest that it is leading us to an industrial relations environment full of uncertainty and court cases. It is unpopular legislation, which may be unconstitutional. It could open up award decisions of the Industrial Relations Commission to judicial challenge and make a complete shambles of our industrial relations system and promote uncertainty for the men and women of the New South Wales public sector.

I suspect none of us would want our industrial relations system to go there. The Government is throwing away more than 100 years of growth, certainty, trial and error, and hard-won knowledge by attempting, almost in the dark of night, to pass legislation without any mandate or consultation. It is throwing away all the experience and hard-earned knowledge of the last century. I turn to the definition of "public sector employee" in the bill. Schedule 1 [2] to the bill states in part:
      public sector employee means a person who is employed in any capacity in:

      (a) the Government Service, the Teaching Service, the NSW Police Force, the NSW Health Service, the service of Parliament or any other service of the Crown, or

      (b) the service of any body that is constituted by an Act and that is prescribed by the regulations for the purposes of this section.
The Minister said in his second reading speech that the provisions of the bill will not apply to local government employers and employees. However, paragraph (b) clearly refers to bodies constituted by an Act of Parliament. Local government areas are constituted under the Local Government Act. In short, the definition of "public sector employee" is drafted so broadly that it could easily include local government workers and any other employees working in organisations constituted by any Act of this Parliament. The Government could simply issue a regulation: what it says is what it is. The Government must clarify this basic drafting issue. There are only two possible choices: Is this an error as a consequence of quick drafting on particularly shoddy instructions from the Government, or is it deliberate? I do not know.

Why would the O'Farrell Government draft legislation in this way if it did not intend to use it to include a range of other workers not expressed openly in the bill, including those in the local government sector? The Government may not issue a regulation the day after the assent of this bill, if it is passed. However, it could decide at any time after assent to include those workers. The Government cannot give the community a guarantee that it will not include 50,000 local government employees, including rangers, planners, park officers, childcare workers—and the list goes on. I turn now to the core amendment in the bill, the insertion of new section 146C, which is found in part 2 of schedule 1 to the bill. When the Minister introduced the bill he indicated that wages policy was the motivation behind it. However, as we know, the bill does not explicitly mention wages policy. Schedule 1 [2] inserts new section 146C, which states:
      (1) The Commission must, when making or varying any award or order, give effect to any policy on conditions of employment of public sector employees:
Any policy on conditions of employment is a wide-ranging concept. Effectively, it is a blank cheque on any policy on conditions of employment relating to wages and conditions of public sector employees. New section 146 continues:
          (a) that is declared by the regulations to be an aspect of government policy that is required to be given effect by the Commission, and
          (b) that applies to the matter to which the award or order relates.

      (2) Any such regulation may declare a policy by setting out the policy in the regulation or by adopting a policy set out in a relevant document referred to in the regulation.
I emphasise the words "any policy on the conditions of employment of public sector employees". So this is not only about wages policy; it is about any policy—long service leave, annual leave loading, maternity leave, annual leave, shift allowances, tool allowances, and the list goes on. That is an incredibly broad power: it is a completely blank cheque. There has been no consultation, and no-one has any idea how far the Government will go with it. Indeed, once the legislation is enacted, while the Government may be able to give promises and undertakings in good faith, it cannot bind future governments, which will continue to have the power.

We have no regulation before us that indicates what this could really be about. We can envisage the Government, and possibly a future government, cutting annual leave, reducing shift allowances, maternity leave, carers leave, parental leave and bereavement leave, changing the roster system, and removing transfer entitlements and the top-up for workers compensation. That is the power this Parliament is proposing to give the Government in this legislation. It is not good enough for the Government to simply say, "At this stage we're not considering doing that." It is giving the power not only to itself but to all future governments.

New South Wales is already experiencing a skills shortage. The participation of women in the workforce is at an all-time high, and that is a great step forward towards achieving gender equality. However, a number of challenges remain for working women, especially those with carer responsibilities. It is overwhelmingly women who must deal with the burden of balancing paid employment with caring responsibilities, whether that be as mothers, carers for a relative with a disability or in many other roles. The former Labor Government implemented the Making the Public Sector Work Better for Women strategy to attract, develop and retain female employees, and it piloted an e-mentoring program for women building their public sector careers in rural and regional areas and in non-traditional occupations and senior positions.

It also provided targeted support for women in the workplace, with initiatives such as Railcorp's Stay in Touch Program for employees on maternity leave. It improved arrangements and increased flexibility to facilitate women's participation in the workplace. Under this legislation what will happen to the practice of using sick leave to undertake carers duties? New section 146C provides that the commission, when making or varying any award or order, must give effect to any government policy on conditions of employment of public sector employees. What impact will that have on paid maternity and parental leave? What will be the impact on the right to request to return to work from maternity, adoption or other parental leave on a part-time basis? All of those conditions will be back on the table and will be part and parcel of the trade-offs proposed by the Government. They are all at risk. The bill also amends the Industrial Relations Act to force the Industrial Relations Commission to apply the Government's policy despite any other considerations. New section 146C (7) in part 2 of schedule 1 states:
      This section has effect despite section 10 or 146 or any other provisions of this or any other Act.
Until now the Industrial Relations Commission, when considering a claim, could take into account other sensible factors such as fair and reasonable conditions of work or the objects of the Industrial Relations Act, as well as the state of the New South Wales economy and the State's budgetary position. However, this bill insists that government policy must be applied. In short, the commission becomes the lackey of government policy. It will no longer be independent. There will be no independent umpire for the ordinary working men and women of New South Wales.

Under the O'Farrell regime the commission will become the alter ego of the Government. As I said, its great tradition of providing a fair go will be abolished. The independence of the umpire for the workers who appear before the commission will be gone. The idea of having a disallowable regulation as some sort of safety valve for this system is frankly not appropriate. The pay and working conditions of 400,000 men and women in this State are vital to the efficient working of the State and are the product of the work and effort of legislators, commissioners, employers and unions over a century. They should be decided by an independent workplace umpire and negotiated between employers and employees.

This legislation will have the effect of dramatically altering the pay and working conditions of hundreds of thousands of people in this State. In doing so, it will directly affect the safety, protection, care and quality of service provided to millions of others in this State who rely on public services. It is simply not good enough to introduce such significant legislation without any consultation. None of those 400,000 employees were alerted about this bill. This legislation proposes to change everything dramatically. It will reduce wages and conditions and it should be the subject of consideration by the House of review through its committee processes.

The Hon. Catherine Cusack: That is the fourth time you have said that, Peter.

The Hon. PETER PRIMROSE: And I will keep saying it as long as I can argue the case here—

The Hon. Catherine Cusack: Point of order: The member has indicated that he is deliberately being tedious and repetitious in complete defiance of the standing orders.

The Hon. Lynda Voltz: To the point of order: If the member opposite constantly interjects on members, questions what they are saying and gets a response, that is not repetitious. If she does not want members to respond she should stop interjecting.

The Hon. Peter Primrose: To the point of order: Prior to the honourable member taking a point of order I was in the process of saying that I will continue making this point as long as I can make a case that will lead to that conclusion. I have said on a number of occasions already that because of history, because of the development of other pieces of important legislation, and now because of the consequences of this legislation that I am outlining will emerge if it is enacted, I have come to the same conclusion—and I indicated that I would repeat that conclusion—that this matter should go before and be properly considered by a committee.

The PRESIDENT: Order! I am listening closely to the member's contribution. At this time, he is in order. There is no point of order.

The Hon. PETER PRIMROSE: Thank you, Mr President. This bill insists that Government policy be applied and removes the independent umpire. In short, the commission loses its independence. As I said prior to the interjection, the commission will become the alter ego of the Government. The idea of having some form of disallowable regulation as a safety valve is inappropriate. The 400,000 people in the public service who provide services in our hospitals, our firefighters, search and rescue personnel, maritime workers, harbour workers, nurses, teachers, biologists, clinicians, radiographers and so on will all be affected. Their pay and conditions, which as I have indicated have been developed over 100 years, should continue to be decided by the independent workplace umpire, not this Chamber.

As I said, it is important to place this bill in its historical context. However, with due deference to your earlier rulings, Mr President, I think I have outlined my case sufficiently with regard to the history of this issue. Since the introduction of the Industrial Relations Act 1996 the award making and agreement approving powers in chapter 2 and the dispute resolution powers in chapter 3 have been used extensively for the purpose of resolving industrial disputes and employment grievances and for regulating the terms and conditions of employment of a large proportion of the New South Wales workforce. Since 2000, after the extensive review process, there are now around 904 State awards. Since 1996 the commission has dealt with, on average, 1,020 industrial disputes each year, and it approved 325 agreements in 2004 and 384 in 2005.

Again, I have a substantial amount of material here, but I will not burden the House by going through it. I urge honourable members to look at the history of this matter so that they understand what has happened and are clear about the point we have reached. The commission's current operations are a consequence of the hard-won knowledge gained over the past century. Today the Industrial Relations Commission conciliates and arbitrates to resolve industrial disputes, sets conditions of employment and fixes wages and salaries by making industrial awards, approves enterprise agreements and decides claims of unfair dismissal. Today's Industrial Relations Commission is the product of more than 100 years of legislation, negotiation and agreement. The commission, which as I indicated was established under the Industrial Relations Act 1996, has both conciliatory and arbitral functions. Section 3 of that Act sets out its functions, which include providing a framework for the conduct of industrial relations that is fair and just. It must also promote efficiency and productivity in the economy of the State.

The Hon. Catherine Cusack: Hear! Hear!

The Hon. PETER PRIMROSE: Thank you. Its function is to promote participation in industrial relations by employees and employers at an enterprise or workplace level; to encourage participation in industrial relations by representative bodies of employees and employers; to encourage the responsible management and democratic control of those bodies; to facilitate appropriate regulations of employment through awards, enterprise agreements and other industrial instruments; to prevent and eliminate discrimination in the workplace and, in particular, to ensure equal remuneration for men and women doing work of equal or comparable value; to provide for the resolution of industrial relations disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality; and, finally, to encourage and facilitate cooperative workplace reform and equitable, innovative and productive workplace relations.

The commission may be constituted as the Industrial Court of New South Wales, and in such circumstances is accorded equivalent status to the Supreme Court and is therefore a superior court of record. The commission's role today is to regulate the industrial relations affairs of the State. Whilst the commission, depending upon the issues, exercises both a civil authority, in its administrative role as the Industrial Relations Commission, and a criminal authority, in its judicial role as the Industrial Court of New South Wales jurisdiction—although I will refer to the occupational health and safety legislation recently passed by this place in relation to that matter—it seeks to conduct its proceedings in a non-technical and expeditious manner. Broadly speaking, as a consequence of 100 years of development the commission now exercises its jurisdiction in relation to the regulation of the workplace through the making or variation of an award. The key feature is the triennial review of awards to eliminate discriminatory provisions, modernise language and rescind awards made relevant through legislative enactment.

When making and approving enterprise agreements the commission must be satisfied it complies with the Industrial Relations Act 1996 and the Anti-Discrimination Act 1997, and that on balance the agreement does not "provide a net detriment to the employees who will be covered by the agreement comparable with the aggregate package of conditions of employment under relevant awards". Examples of the promotion of equal opportunity in employment include the commission exercising power to resolve disputes over the industrial matter of employment discrimination by conciliation and arbitration. The commission, in making awards, is required to grant remuneration and other conditions to both men and women doing work of comparable value, and the president of the Anti-Discrimination Board may, with the leave of the commission, intervene in matters before the commission to seek variations to awards or agreements if the board has found provisions to be illegal.

Civil matters and prosecutions under various industrial laws include underpayment of statutory and award entitlements and superannuation appeals. Today the resolution of industrial disputes through conciliation and arbitration also comes under the ambit of the legislation. The commission may only arbitrate after it has issued a certificate of attempted conciliation and when arbitrating the dispute. The commission may issue dispute orders including ordering parties to cease industrial action and return to work or ordering parties to discontinue a secondary boycott. If a dispute is ignored or contravened the commission may impose a range of penalties, including suspending the operations of an award, cancelling the approval of an agreement or imposing a maximum penalty of $10,000.

We discussed in the House criminal proceedings for alleged breaches of the Occupational Health and Safety Act and it made a determination, so I will not reflect on that. The commission also deals with registration and regulation of employer and employee organisations, including proceedings for the enforcement of rules, challenges to the validity of rules and the acts of officials, proceedings for the relief from alleged unfair dismissal and, finally, proceedings for the avoidance and variation of unfair, harsh or unjust contracts with consequential orders for the payment of money.

From 1 January 2010 the Government made a decision that all employees currently covered by the New South Wales industrial relations system other than the State public sector and local government employees would be transferred into the national scheme. Therefore, those employees who are employed by sole traders or partnerships and employees of constitutional corporations have been covered under the national scheme since the WorkChoices legislation was enacted in 2006. The commission retains jurisdiction in relation to the terms and conditions of employment of State government or local government employees.

The commission also has an appellate jurisdiction, considering matters dealt with by a single member of the commission, the industrial magistracy and the registrar. Appeals are to a Full Bench of the commission and proceed by way of application for leave to appeal. In a practical sense the appeal itself often forms part of the grounds for leave to appeal and it is not unusual for leave to be granted but the appeal to be dismissed as part of the same proceedings. In other circumstances, the consideration of an application for leave to appeal can be a distinct and separate hearing from the appeal, with the Full Bench reserving its decision in relation to the application for leave, delivering that decision and subsequently listing the appeal for hearing on further occasions.

Finally in relation to this matter, the Full Bench of the commission constituted to hear an appeal from a decision of the commission consists of at least three members and, other than the Full Bench of the Industrial Court of New South Wales, includes at least one presidential member, that is, a judge or deputy president, and at least one commissioner. A Full Bench of the Industrial Court New South Wales must include only judicial members. It is certainly worthwhile for honourable members to look at the operations of the court.

A number of individuals, organisations and agencies have also contacted me in relation to the bill. I am not going to read out the list of names but I would like to precis some of the comments by a few of those people as part of my contribution to this debate. Unions NSW, in a media release of 20 May, indicated that it has serious concerns about the State Government's public sector workplace policy, arguing that it amounts to WorkChoices for New South Wales. Unions NSW suggested that:
      The proposal represents the most radical change to workplace laws in more than a century. If passed, New South Wales public sector workers would be banned from negotiating their rights at work. The Industrial Relations Commission would be sidelined and the conditions of public sector workers would be potentially determined at the whim of the Government.
Mr Mark Lennon, Unions NSW secretary, stated:
      This is an unprecedented assault on the rights of public sector workers to have their day in court to determine their wages and conditions. The Government has offered to discuss the legislation with unions and we welcome that opportunity but at the moment we are looking at a policy that will unravel more than a century of hard-won rights and conditions at work.
That is precisely the argument I have been making by revealing the history of this legislation. Mr Lennon also said:
      It will also mean poorer public services. You can't cut jobs, wages and conditions for police, teachers and other public sector workers without cutting their services.
He goes on:
      All Australians should be entitled to negotiate a pay rise or have it determined in the Industrial Relations Commission. Why is the Government singling out police, nurses and other public sector workers for WorkChoices style laws?
Again, looking at some particular concerns, Unions NSW has indicated that it believes this bill, and I share the concern, will allow the New South Wales Government to implement as law any—I stress any—government policy on conditions of employment of public sector employees that is declared by the regulations to be an aspect of government policy. As I indicated, the bill further limits the role and independence of the Industrial Relations Commission of New South Wales. Unions NSW makes the point, and I think it is worth stressing, that the bill goes much further than simply giving effect to Labor's public sector wages policy. The bill gives the New South Wales Government a blank cheque in relation to setting and enforcing any or all public sector policies on conditions of employment.

Looking at the amendments giving effect to public policy on public sector employment, the bill requires the Industrial Relations Commission, when making or varying any award or order, to give effect to any policy on conditions of employment of public sector employees that is declared by the regulations to be an aspect of government policy. This will enable the New South Wales Government to regulate any aspect of conditions of employment of public sector employees. The regulations have not been released at this time, and the extent of policies that are to be included is unknown.

The bill seeks to restrict the independence of the Industrial Relations Commission. The Industrial Relations Commission will no longer be able to effectively facilitate the making of awards and agreements for public sector workers. As I have said, the bill requires that the Industrial Relations Commission must—I stress must—when making or varying any award or order, give effect to any policy on conditions of employment of public sector employees that is declared by the regulations to be an aspect of government policy. The proposal, if enacted, will undermine the separation of powers between the Government and the judiciary. Instead of public sector workers having a fair and independent umpire, the proposed changes seek to make the O'Farrell Government the prosecutor, judge and jury.

A particular concern that I have is that the bill seeks to retrospectively regulate all public sector proceedings currently before the Industrial Relations Commission of New South Wales. The Police Association, the New South Wales Public Service Association, the Health Services Union and the Fire Brigade Employees Union all have agreements that are about to expire, or have current cases before the Industrial Relations Commission in New South Wales. The amendments outlined in the bill extend to appeals or references to the Full Bench of the Industrial Relations Commission of New South Wales. Section 146C (4) does not apply to matters in the Commission in Court Session.

Further, the proposed amendments will have effect despite any provisions of this or any other Act. While sections 10 and 146 are specifically mentioned, the bill would further affect section 17, Variation or rescission of awards, part 2 of chapter 2, Enterprise agreements, and chapter 3, Industrial disputes. Also included in the bill is a definition of public sector employee: "Public sector employee means a person who is employed in any capacity". I have read this part of the bill previously, so I will not take up the time of the House by reading it again.

The Hon. Melinda Pavey: That's very sweet and considerate. You are lovely.

The Hon. PETER PRIMROSE: I thank the Hon. Melinda Pavey for her goodwill. Also in relation to the amendments to unfair contracts jurisdiction, the bill seeks to amend section 105 by inserting a new subsection (2), which in certain circumstances removes the role of the Industrial Court of New South Wales to provide a right of review of unfair contracts of employees of the public sector. This occurs where such "unfair contract" gives effect to any government policy on conditions of employment of public sector employees that has been declared by the regulations to be an aspect of government policy. I urge honourable members to have a look at new section 146C. If the bill is passed the New South Wales Government will be able to implement as law any policy it creates regarding the conditions of employment of public sector employees—not only this Government but any future government, and this Government cannot bind a future government with any good wishes it may have at the moment.

Public sector workers who provide essential services will not get a pay rise of more than 2.5 per cent a year unless they trade off "employee related cost savings and reforms". "Employee related cost savings" means having one rather than two police officers in a patrol car, fewer than five nurses in an operating theatre, three rather than four weeks holiday. The bill seeks to force a court to implement government policy as law. The New South Wales Industrial Relations Commission will become a commission with no ability to make independent decisions on public sector wages or conditions. It will be forced to implement government policies. The new law undermines the separation of powers and independence between the Government and the commission.

The bill will remove the role of the Industrial Court of New South Wales to provide a right of review of unfair contracts forced on public sector employees. The Government has removed the only independent umpire in New South Wales dealing with wages. The bill applies retrospectively. It seeks to retrospectively regulate all public sector proceedings currently before the Industrial Relations Commission, including pay claims for police officers, child protection workers, prison officers, health service workers and teachers. As I have outlined that aspect previously I will not repeat it.

The Leader of the Opposition, the Hon. John Robertson, indicated on Thursday 12 May this year, just after the bill was first proposed, that police wages could be frozen and resources slashed within months if the bill were carried. On that day, Thursday 12 May, the Premier announced in question time that the police, nurses, teachers and all other public servants could be forced to cut resources before being awarded any wage increase above 2.5 per cent. The Leader of the Opposition said at that time:
      This outrageous policy will effectively freeze wages for police officers and other public servants for at least 12 months.

      The only way for police to secure a real wage increase will be to agree to major cuts in police numbers from July 1—which is completely unacceptable.

      The O'Farrell Government has declared war today on nurses, teachers and police and foreshadowed major cuts to public services.
On 16 May this year the Hon. John Robertson detailed the issues relating to the New South Wales police award, which expires on 30 July this year, and the fact that an agreement is yet to be reached with the New South Wales Government. The O'Farrell Government through this legislation will also strip the powers of the Industrial Relations Commission to conciliate and arbitrate disputes for public servants. In a press release issued on 16 May the Hon. John Robertson said:
      The O'Farrell Government has shown its true colours this week, attacking frontline workers and threatening the public services that the people of NSW rely on.
As a consequence of the thousands of representations that were made to the Opposition, on 25 May the Hon. John Robertson declared that Barry O'Farrell's bill is worse than WorkChoices. The Hon. John Robertson said further:
      The Premier has outdone John Howard and Peter Costello with this unprecedented attack on the rights of nurses, teachers and police.
The Hon. John Robertson also said:

      Barry O'Farrell said he wanted to help ease cost of living pressures for families. Instead, the Premier is cutting—
The Hon. Catherine Cusack: Point of order: I ask the Hon. Peter Primrose to provide the source of the quotation. In addition, I ask you to remind the honourable member that he should not quote from Hansard of another place.

The Hon. PETER PRIMROSE: To the point of order: Firstly, I am not quoting from Hansard. Secondly, at the beginning of this part of my speech I indicated the document I was quoting from and the date of it. I am now on my last quote from that document.

The PRESIDENT: Order! It is not out of order for members to quote from Hansard of the other place. However—

The Hon. PETER PRIMROSE: I was not quoting from Hansard.

The Hon. Lynda Voltz: He wasn't quoting from Hansard.

The PRESIDENT: Order! I am ruling upon the point of order taken by the Hon. Catherine Cusack. It is not out of order for members to quote from—

[Interruption]

The PRESIDENT: Order! Government members will come to order; I am making a ruling. It is not out of order for members to quote from Hansard of the other place. Reasonable quotations are certainly permissible, but it is the practice and the precedent of this House that members when quoting from a document should identify the document, precis its contents, and quote selectively and briefly. I remind the Hon. Peter Primrose of that ruling and previous rulings I have made on the same issue.

The Hon. PETER PRIMROSE: Thank you for your ruling, Mr President. As I indicated, I have already quoted briefly from two comments in press releases by Mr John Robertson. I have indicated that on 25 May 2011, as a consequence of the thousands of representations that the Opposition has received, the Hon. John Robertson issued a press release and declared that in his view Barry O'Farrell's bill is worse than WorkChoices. Before the point of order was taken I was selectively quoting these two paragraphs:
      "Barry O'Farrell said he wanted to help ease cost of living pressures for families.

      Instead, the Premier is cutting the wages of ordinary mums and dads, teachers and nurses, who are trying to make ends meet," Mr Robertson said.

More concerns kept being expressed to the Opposition. I quote from a press release by the New South Wales Leader of the Opposition, Mr John Robertson, on 31 May headed "O'Farrell wages bill puts local government workers at risk":
      "Barry O'Farrell has drafted a Bill that is so broad and far reaching that the wages and conditions of more than 50,000 local government workers are now at risk," said Mr Robertson.

      "This is in addition to our hardworking nurses, teachers and police across NSW who are already in the firing line."

Mr John Robertson said:
      Barry O'Farrell's amendment to the Industrial Relations Act 1996 creates a definition of "public sector worker" so broad that local government workers can be dragged into his plan to cut worker conditions and wages.

      Barry O'Farrell's amendment drags local government workers into his disastrous wages legislation that will allow the government to cut wages and conditions ...

      "It's called an amendment for a reason, Barry."

      "Barry O'Farrell is spinning so hard on this proposed legislation—but the truth is there for all to see in his amendment.

On 31 May 2011 Mr Robertson issued a very cogent document looking at what had been said by the Premier in relation to the legislation and what the arrangements were. I will not quote this or go through it in detail but I will precis one or two aspects. In Hansard on 12 May, Premier O'Farrell said:
      Our system will work on the principle that the Parliament sets the rules and the umpire, the Industrial Relations Commission, enforces them.

As I have outlined previously, forcing the umpire to enforce the Government's employment condition decisions removes the independence from the negotiation process. Under these changes the Premier could decide, for example, that from 1 July the Government's policy is to reduce annual leave entitlements for nurses, teachers and police and the independent umpire would be bound to enforce it. In Hansard on 26 May Premier O'Farrell said:
      The wages policy being pursued by this Government is exactly the same as the policy that members opposite pursued when they were in government ...

The reality is totally different. This bill amends legislation put in place by the former Government and gives unprecedented power to politicians to cut worker conditions if it becomes part of government policy, with no guarantee that there will be a wage increase or other benefits in return. On 25 May Premier O'Farrell said in Hansard in the other place:
      ... the Parliament will always have the right to disallow our wages policy decisions if it regards it as being too harsh ... Given that we do not have a majority in the upper House, I have no doubt that the crossbenchers, combined with the colleagues of those opposite, will quickly reject any change to our policy that they thought was unfair.

The major flaw in the legislation is that it takes power away from the Industrial Relations Commission and gives it to members of Parliament. The bill means that a future government with control of both Houses could pass any legislation regardless of how harsh or unfair it was. In this term of government the legislation will leave the fate of police, teachers and nurses in the hands of crossbenchers in this place. Public sector workers deserve an independent body to mediate in wage negotiations, not political parties. I also think it is very unfortunate and inappropriate that members on the crossbenches will be asked to bear that burden. It is not something that members of Parliament signed up to; it is not part of their role and it has not been for 100 years. It does not exist in any other jurisdiction.

On 26 May Premier O'Farrell said in the other place that the bill would "guarantee to public servants fair wage increases". On 25 May he said, "We will allow 2.5 per cent wage increases across the public sector. There is provision for increases above that level but only if they are offset by employee-related savings." The reality, of course, is different. The legislation makes no mention at all of wages or wages policy. There is no requirement for the Government to pass on a wage increase above 2.5 per cent even if conditions are lost as part of employee-related savings. The bill states:
      The Commission must, when making or varying any award or order, give effect to any policy on conditions of employment of public sector employees:

      (a) that is declared by the regulations to be an aspect of government policy ...

How did others in the community respond to this? I have literally hundreds of individual letters but I will not precis them; I will leave that to others. I will precis a couple of items so that people are aware of the concerns but I will not go through the letters I have received and take up the time of the House. I refer to a couple of industrial organisations, such as the Teachers Federation. The President of the Teachers Federation, Bob Lipscombe, said on 26 May:
      Changes to the state wages policy announced by the O'Farrell Government could result in cuts to the real income of teachers, police, firefighters and other public servants in NSW.

      The legislation allows for a regulation that will give details of the Government's wages policy. The regulation will go further than Federation expected and refer to conditions as well as wages. The union understands it will restrict, and could diminish, leave entitlements.

Concern has again been expressed about the uncertainty. No-one genuinely understands what this legislation is about. It is a work in progress because we have not seen any of the regulations. Accordingly, this House is being asked to have faith and trust not only in the gestures and goodwill of the current members but also in the goodwill of future governments that have not yet been elected. Once it is law it remains law until it is rescinded. We are talking not only about good will; we are talking about the future and forevermore. That is what laws are about. The Teachers Federation believes this to be a serious attack not only on wages and conditions in the public sector but also on the ability of unions to negotiate and seek the assistance of an independent Industrial Relations Commission. Bob Lipscombe then said:
      … the O'Farrell Government's policy restricts teachers and other public servants' salary increases to 2.5 per cent per annum, with any increases above that amount to be funded from "employee-related savings". However, unlike the previous policy, the full savings must already be achieved before any such rise can be paid.

      This means that, regardless of arguments about already improved productivity, work value, increased workload, or inflation rates, the IRC will not be able to grant any increase above 2.5 per cent unless employees are prepared to sacrifice conditions to fund it.

      With teachers in a position where no reasonable "employee-related savings" are available, and economic analysts such as BIS Shrapnel predicting that inflation will be above 3 per cent in the coming years, the Government is really trying to impose annual pay cuts on teachers for the three-year life of our next salaries award. Of course, during that time electricity charges, council rates, grocery prices and the myriad of other costs that impact on teachers will continue to rise.

      Apart from elimination of rights that non-government employees will continue to enjoy, the independence of the judiciary in what until now has been one of the most senior courts in the state will be destroyed, and the fundamental concept of separation of powers will have been abandoned. An IRC that was supposed to be an independent umpire will now have the combined roles of government prosecutor, judge and jury.
He concluded:
      If it is passed, teachers will need to prepare to engage in a concerted campaign if they are not to see their real incomes cut when the current salaries awards for teachers expire at the end of 2011. Of course, this short-sighted policy will do nothing to support the professional salaries needed to attract and retain the new teachers required over the next few years to replace the accelerating number reaching retirement age.
Brett Holmes, General Secretary of the NSW Nurses Association, wrote to me on 20 May 2011. I will not seek to read that document in its entirety into Hansard but I will precis some of his comments. In doing so I repeat that I am only illustrating a few of the concerns that have been raised with me. Brett said in that letter:
      The NSW Nurses Association is strongly opposed to the attempts by the NSW Government to remove the independence of the NSW Industrial Relations Commission (IRC) and seeks your support—

my support—
      to stop any legislation that undermines or removes the independence of the NSW IRC.

      There are various reasons why any such legislation is not in the public interest and it is also clear that the NSW Government does not have a mandate for such legislation and policies.
This next paragraph is very important:
      The NSW Government is trying to camouflage its attack on the NSW IRC's independence behind the previous government's so-called wages policy. However, its actions are nothing but an attack on the rights at work of more than 40,000 nurses and midwives, who work for State Government departments such as NSW Health and the Department of Family and Community Services, Ageing Disability and Home Care.
Mr Holmes then talked about the role of the NSW Nurses Association over a long time, the development of its experience and its relationship with the New South Wales Industrial Relations Commission. He also talked about the association's concerns in working with the Industrial Relations Commission and the Legislative Council in relation to matters such as WorkChoices. I continue to quote from his letter:
      NSW Nurses' Association members look forward to the Legislative Council again doing the right thing on this issue.

      If it does not, and it allows the current government's attack on their rights at work to proceed, NSWNA members in Ageing and Disability services will be the first to face the impact of these changes. These nurses provide professional care to developmental disability clients in large residential facilities and community services. They work in the most difficult circumstances with clients who have severe and complicated disabilities, often accompanied by mental and physical co-morbidities.

      These nurses deserve to be paid at least the same rates as their public health system colleagues, who have recently achieved Award increases of 3.9 per cent, three per cent and 2.5 per cent, to be fully delivered by 2012. However they work for a Department that is chronically under-funded and for which employee-related cost savings or further productivity is almost impossible.

      Disability nurses are also an ageing group and it is already very difficult to recruit registered and enrolled nurses into this area of nursing. A wages policy that takes no account of severe workforce shortages and the need to remain competitive, and lacks the flexibility to argue a different outcome to the employer's original offer, is destined to hurt some of the most vulnerable people in our society. It is no secret that without their expert care their clients are destined to suffer more complications and die earlier.
In his final paragraph he states:
      So, on behalf of my members and the people of NSW who depend upon the professional and safe care of nurses and midwives, I respectfully request that you refuse to pass the O'Farrell Government legislation and regulations when they are presented to the Legislative Council.
The Police Association of New South Wales issued a media release on 30 May 2011 which states:
      The NSW government’s proposed industrial relations changes are a “slap in the face” for police officers, the Police Association of NSW has warned.

      Last week, the O’Farrell government introduced legislation into state parliament that would strip the Industrial Relations Commission of its power …

      PANSW [Police Association of New South Wales] president Scott Weber on Monday said the proposal undermined the promises made by Coalition MPs before the state election.
I received a letter from Scott Weber on 17 May 2011. I will not take up the time of the House by going through that letter in great detail, but the first paragraph states:
      I write in respect to the [Industrial Relations Commission and Public Sector Salary Policy] and with reference to the letter of 20 March 2011 from the then Shadow Minister for Police, Mike Gallacher on behalf of the Coalition in response to the Police Association of NSW Pre Election submission.
That submission was attached to the letter. I continue the quote:
      I specifically refer to his responses in regard to the Industrial Relations System.

      As you would be aware Police industrial and disciplinary matters are an important part of the Commission's jurisdiction. Indeed in the pre-election commitment the Police Association and its members were specifically assured that:

      "The NSW Liberals & Nationals are committed to retaining all NSW public sector employees under the NSW industrial relations system. We have previously indicated we would not refer industrial powers in respect to Police to the Commonwealth Government and that Police would keep their rights to collective bargaining, awards and an independent umpire."

He goes on to state, in reference to the rights of his members to enjoy appeal rights against a decision of the commission to remove them from employment, that the Coalition made the following commitment:
      "The NSW Liberals & Nationals acknowledge the ongoing right of aggrieved Officers to appeal to the Industrial Relations Commission and do not plan to change existing legislation in respect to appeal rights."

Mr Weber then goes on to state:
      Firstly I must raise serious concerns regarding the Government's announcements on Thursday regarding the proposed changes to the Industrial Relations Commission's (IRC) wage fixing role and the Government's Public Sector wages policy. It is understood from the announcement that the IRC's role in determining fair and reasonable salaries will be limited to enforcing the Government's public sector wages policy. If our understanding is correct then this represents an egregious attack on the independence of the judiciary and will effectively neuter the Commission as an independent umpire. In the absence of any draft Bill we will assume that Hansard reflects the Government's intentions.

He then goes on to quote Hansard, which I will not do beyond making the point that his concerns are exactly correct: the bill does reflect an egregious attack. Subsequently, on 31 May, I received another letter from Mr Weber, from which I will quote very briefly:
      Dear Peter,
Re: Industrial Relations Amendment (Public Sector Conditions of Employment) Bill 2011

      I write in regard to our recent correspondence regarding the above Bill with particular reference to the attached legal advice prepared by prominent Senior Counsel Arthur Moses and Barrister Yaseen Shariff.

      The advising raises significant concerns regarding the validity of the Bill from both a constitutional and legislative perspective. I especially draw your attention to paragraph 2.1 of the advising where Counsel summarise their views regarding the bill. In their view, it is arguable that the Bill—

Mr Weber then quotes from the legal advice from which I will cite briefly because it is in his letter—
      "would impair the institutional integrity of the Industrial Relations Commission (IRC) and render it "incompatible with Chapter III of the Australian Constitution". Counsel are also of the opinion that any Awards made by the IRC as a result of the amendment "are susceptible to be set aside and quashed" ... on the basis that they will have been made in denial of procedural fairness". In addition they argue that "the regulation may itself be susceptible to judicial review on the grounds that it is (i) inconsistent with the objects of the IR Act;—

That is my reason for earlier citing the objects of the Hon. Jeff Shaw's legislation—
      (ii) it denies procedural fairness to employees".

Mr Weber advises me in his letter in paragraph 6.1 of counsel's conclusion:
      In "our opinion, if enacted, the Proposed Amending Act and any Awards made pursuant to section 146C, would be the subject of reasonable challenge as to their validity. We consider that such challenges have a reasonable foundation".

Mr Weber then indicates, in accordance with his previous correspondence to me, that the Police Association has serious concerns regarding this legislation and its effects more generally. As he has outlined, his legal advisers, who are eminent counsel, have brought into very sharp focus the whole tenor and validity of the legislation. He then goes on in his letter specifically to address the issue of police, who are his members. He states:
      This advising confirms our view that the Bill is unfair as it denies our members procedural fairness and access to an independent umpire as promised by the Police Minister in the lead up to the last election. It also would create a totally uncertain industrial relations environment in which members could have no confidence that their salaries and conditions would be set fairly and were not subject to legal challenge.

      The Bill also effectively vests in the parliament the role currently performed by the IRC in adjudicating on employment conditions.

His letter goes on to state:
      At paragraph 5.0 Counsel advises the bill "places parliamentarians in the unenviable position of being lobbied by and receiving submissions from interested parties to allow or not allow the regulation without having the necessary expertise or powers of the Commission. It "would, in effect, make Parliament a de facto tribunal for receiving and debating the submissions of industrial parties a role which properly has to date been left to specialist tribunals".
I echoed those sentiments earlier during the reasons I stated for outlining the development over a century of the 1996 legislation.

The Hon. Duncan Gay: That is more work than you have done in six years.

The Hon. PETER PRIMROSE: I thank the member for his attention. The letter from Mr Scott Weber goes on to state:
      We have written to the Government today seeking that the Bill be withdrawn. In the event that they proceed we seek your commitment to oppose the legislation. It is untenable that the parliament be asked to consider legislation that is in the view of eminent Senior Counsel constitutionally invalid.

I have indicated to Mr Weber and reiterate for the record today that, in response to his request, he has my commitment. Not being a conciliation commissioner and certainly not being a lawyer, it is very difficult for me to consider the pros and cons of a whole range of submissions that will be put to me that properly are the province of the Industrial Relations Commission, if this legislation is passed. I have been given the advice by eminent counsel and I have referred to it. I will not trifle with the House by reading the whole of the advice, but the executive summary states in part in 2.1:
      (a) it is arguable that the Proposed Amending Act would impair the institutional integrity of the Industrial Relations Commission ... so as to make it a body (when in Court Session) whose exercise of judicial powers is incompatible with Chapter III of the Australian Constitution;

      (b) the Proposed Amending Act, if enacted, is likely to be considered a valid exercise of the power conferred under Parliament by the Constitution Act 1902 (NSW);

      (c) if the Proposed Amending Act was enacted, any awards made by the Commission pursuant to the mandatory provision in s. 146C (1) (to give effect to Government policy as promulgated in a Regulation) are susceptible to be set aside and quashed upon application for prerogative relief upon the basis that they will have been made in denial of procedural fairness;

      (d) if any Regulation promulgated pursuant to the IR Act, (as amended by the Proposed Amending Act) which seeks to require the Commission to enforce a Government policy on the setting of public sector terms and conditions of employment (including as to the removal of existing benefits), then the Regulation may itself be susceptible to judicial review and declared invalid on the grounds that it:

          (i) is inconsistent with the objects of the IR Act;

          (ii) denies procedural fairness to employees.

The advice is very extensive and I will not refer to it beyond what I have already stated. I turn briefly to the issue that keeps bubbling up in this debate, and that is the whole issue of public sector workers being overpaid. I shall refer to and precis a couple of things. I refer to a paper by Dr John Buchanan, dated 31 May 2011, entitled "Are New South Wales public sector workers overpaid?" It is a research note that looks at wage rates for public sector teachers, senior constables and registered nurses at the top of their pay scales in Australian States and Territories in 2010-11. The purpose of the note is to provide some factual information on which debates about future wage setting in the New South Wales public sector can occur. As I said, the paper compares the rates paid to key categories of public sector workers at the top of their classifications.

This is important because this bill is making some dramatic proposals for changing wage determination for public sector workers. The arguments include that the legislation is needed because of the implication that New South Wales public sector workers have received disproportionate wages growth over the past decade. The data released most recently by New South Wales Treasury in particular implies that there has been a wages explosion for this group of workers. The note assesses this assertion by reporting on how well typical New South Wales public sector workers at the top of their pay scales are paid relative to their counterparts in other States.

It is well known that a significant proportion of State Government outlay is expended on education, health, and law and order. To ascertain whether New South Wales workers in these sectors are overpaid, data on rates paid for representative job categories was collected from all States and Territories by Dr Buchanan. There were four job categories: public school teachers at the top of their scale; senior constables at the top of their scale; registered nurses at the top of their scale; and assistants in nursing at the top of their scale. The data for New South Wales workers was then adjusted to report on what workers in those job categories would have earned had the legislation that is before us today been in place since 2000. This involved comparing the rate prevailing today with what it would have been had the 2.5 per cent maximum proposed by the Government been in place from 2000 to 2011. Dr Buchanan found that for people at the top of the classification structure in those four key occupations in New South Wales, workers are paid, "Pretty much the same as equivalent workers in other States."

New South Wales teachers are the second best paid—that is, only 3.4 per cent higher than the average paid to equivalent teachers in other States. Senior constables are the second best paid in Australia; however, only 4.3 per cent higher than the average paid in other States and the Northern Territory. Registered nurses are second highest after Queensland, but the spread here is very limited. It is only 4.3 per cent more than the Australian average across all States and Territories. New South Wales assistants in nursing are paid the lowest, at 7.3 per cent below the Australian average. When compared with all other industries in New South Wales, these public sector workers in those four categories that I have outlined are paid pretty close to average weekly earnings. Dr Buchanan defines it as "full-time ordinary hours on an annualised basis".

Moreover, because average weekly earnings in New South Wales are amongst the highest in Australia, it is not surprising that New South Wales—and public sector workers—is usually amongst the two top States in respect of going rates of pay. However, the report notes that being one of the top States does not mean significantly better than elsewhere; it means marginally better than the average. It is also important to remember, Dr Buchanan believes, that not all public sector workers are teachers, police and registered nurses at the top of their scales. Assistants in nursing, for example, earn approximately $20 an hour, which is significantly less than State average weekly earnings, currently just over 40 per cent less than the standard reference being made for living standards.

The report estimates what the going rates would be for these occupations had the proposed policy been in place since 2000. The average teacher, senior constable and nurse employed at the top of the pay scale rates would be about $15,000, $9,000 and $12,000 respectively worse off per annum if they worked on a full-time basis. They would also be the poorest paid of any of the States, despite working in the State with one of the highest costs of living. Dr Buchanan concludes:
      On the basis of comparing rates of iconic job classifications across States and Territories, New South Wales public sector workers are paid pretty close to the Australian going rate of pay. Had the proposed changes been in place since the year 2000, all things being equal, New South Wales teachers, police and nurses would be the worse paid in the country by a significant margin.

There are a number of interesting and detailed associated tables that I am not going to take the time of the House by going through. That is just a very quick summary of Dr Buchanan's work, and I think it well and truly puts paid to the fundamental argument that New South Wales public sector workers are overpaid. The Workplace Research Centre Research Note No. 2 by Yury Andrienko and Serena Yu compares New South Wales public sector workers with their private sector counterparts. I am not going to go through the document in detail; it is readily available to members if they wish to read it. However, I refer to one paragraph at the beginning of the document, which states:
      Official statistics appear to show that New South Wales public sector workers are better paid on average than their private sector counterparts. However, when we control for relevant factors (e.g. workers with similar levels of education and work experiences) we find that similarly qualified and experienced workers earn similar wages—whether they work in the New South Wales public sector or private sector.

The researchers do not simply make that as a bald assumption; they provide extensive analytical and statistical material to back up that argument. There is a range of other matters that I want to consider but, given that this matter might be debated in Committee, I would like the opportunity to discuss it then, listen to debate and consider it in much more detail. I look forward to being able to raise my other concerns as they relate to amendments in Committee. I will not take the time of the House now. These are just a few preliminary remarks. This bill is not grounded in any historical development except that of the late and unlamented neoliberal experiment of WorkChoices. That approach is both dead and unlamented. We should take the same approach to this bill and consign it to the waste bin.

The Hon. LYNDA VOLTZ [11.39 a.m.]: I oppose the Industrial Relations Amendment (Public Sector Conditions of Employment) Bill 2011, which amends the Industrial Relations Act 1996. The Industrial Relations Commission has a long and distinguished history in determining industrial disputes for workers in New South Wales. Our communities rely on a strong public sector. This legislation will undermine the services that our public sector delivers to our community. Barry O'Farrell and the Coalition did not go to the last election saying they would introduce WorkChoices-style legislation, cut the pay and conditions of New South Wales public sector workers and undermine the role of the New South Wales Industrial Relations Commission.

One wonders where this idea came from. Yesterday during debate I put forward my theory on why the Government has introduced this bill. The Government has a bad story running in the papers every day about the Solar Bonus Scheme. So the Government releases another bad story and picks a fight with the unions. I believe that is what is happening in this Chamber. Yesterday we saw the spectacle of a second private member's day in a row being overturned. For the second time it was overturned to introduce a bill that attacks the conditions of workers across New South Wales. That is the agenda of this Government. It is not unusual for Government members to pick a fight with the unions. It is in their DNA. They are following in the footsteps of their uber-leader, Tony Abbott. We know his record on workers' conditions. As the workplace relations Minister in the 2001, 2002 and 2003 minimum wage cases, Tony Abbott, as a member of the Howard Government, attempted to restrain pay rises to $10—

The Hon. Matthew Mason-Cox: Point of order: My point of order relates to relevance. The member is straying into the area of Federal industrial relations. We are dealing with State legislation. I ask that she be brought back to the leave of the bill.

The Hon. Shaoquett Moselmane: To the point of order: The member is going to the heart of the matter, which relates to wages. She is completely within the realm of this legislation. She has every right to talk about wages.

The Hon. LYNDA VOLTZ: To the point of order: Pay and conditions of workers across New South Wales goes to the heart of this legislation. Fundamental to that is the setting of wages and minimum conditions by the Industrial Relations Commission. A relevant issue is the ideology of the parties and their approach to this issue. It is appropriate for me to draw a distinction between the way Coalition governments time and again have attacked workers' pay and conditions. In this type of debate that is not inappropriate.

The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! Members are extended a wide latitude during second reading debates. However, I remind the member that she must speak within the leave of the bill.

The Hon. LYNDA VOLTZ: I understand why the Hon. Matthew Mason-Cox is embarrassed about the Howard Government's position on the minimum wage cases. The Howard Government sought pay rises of $10, $10 and $12.

The Hon. Matthew Mason-Cox: The member is verballing me. I ask that she withdraw those statements.

The Hon. LYNDA VOLTZ: I will withdraw them. I should have noted that the member was proud of those decisions by Tony Abbott.

The Hon. Matthew Mason-Cox: She is verballing me again.

The Hon. LYNDA VOLTZ: The member is either embarrassed or proud. He can tell me which one it is.

The Hon. Matthew Mason-Cox: Just leave me out of it and get to the bill.

The Hon. LYNDA VOLTZ: I am speaking on issues relating to the bill. Obviously, the Hon. Matthew Mason-Cox no longer wants to claim to be a member of the Liberal Party and support the policies of his leader.

The Hon. Matthew Mason-Cox: Point of order: The member is now being defamatory. I ask that she withdraw those comments and return to the leave of the bill. I find her comments offensive.

The Hon. LYNDA VOLTZ: To the point of order: I fail to see that my statement as to whether the member wants to define himself as a member of the Liberal Party is defamatory. I am referring to what his leader of the Liberal Party has done. I fail to see how that is a defamatory statement.

The Hon. Shaoquett Moselmane: To the point of order: I am not sure whether the Hon. Matthew Mason-Cox is insulted or has been defamed.

The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! The Hon. Matthew Mason-Cox has taken exception to the suggestion that he does not want to be known as a member of the Liberal Party. It is understandable that he has taken exception.

The Hon. LYNDA VOLTZ: I will withdraw the suggestion that the Hon. Matthew Mason-Cox is not embarrassed about being a member of the Liberal Party.

The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! The member will return to her speech.

The Hon. LYNDA VOLTZ: Tony Abbott, as the workplace relations Minister in the Howard Government, in 2001, 2002 and 2003 attempted to restrain pay rises to $10, $10 and $12. In each of those years the Australian Industrial Relations Commission granted well above the Government claim, awarding $17, $18 and $17. Basically, Tony Abbott, during his three years as workplace relations Minister, wanted Australia's lowest-paid workers to get $20 less than they received from the industrial umpire. Liberal leaders have plenty of form when it comes to stripping away workplace conditions. The example of Tony Abbott is but one that will come up in this debate. The Government diverts attention from the Solar Bonus Scheme by picking a fight with the public sector over wages and conditions. It has the added bonus that it is appealing to the heartland of the radical right. I note that the Hon. Dr Peter Phelps is not in the Chamber. He is probably out helping on the Sarah Palin campaign.

When the Minister introduced the Industrial Relations Amendment (Public Sector Conditions of Employment) Bill 2011, he put it in the context of the need to achieve the Government's long-term plans. First, he raised the Government's commitment to provide 900 additional teachers as part of the Literacy and Numeracy Action Plan. I want to go to this part of the Minister's speech because it lies at the heart of the spin and deceit that this Government puts forward in relation to this bill. The O'Farrell Government does not believe it can achieve its wages policy. Therefore, it wants to straitjacket the Industrial Relations Commission and make it the whipping boy for the wages and conditions of public sector workers. Justice Boland said:
      That Parliament would directly fix wages and salaries for government employees rather than an independent tribunal is a novel proposition in Australia. No other state or territory does so; neither does the Commonwealth.

When Barry O'Farrell made a commitment to the literacy and numeracy program, he stated clearly that the Government would reallocate more than 300 kindergarten to year 2 support teacher learning assistants and that the funding would be provided through $136 million of additional recurrent funding from the State budget and $114 million from the National Partnership for Literacy and Numeracy—that is, from the Federal Government. That funding comes not from State coffers but from the Federal Government. In relation to the State Plan, the Minister said that 2,475 extra nurses would be provided under the Better Hospitals and Health Care Plan.

According to the New South Wales Liberals at the time of the election, when they put forward their policy on the healthcare plan, their policy statement was that they would deliver 1,390 extra beds and 2,475 more nurses for the New South Wales health system. When talking about commitments and savings, it is important to look at the detail. The Minister in his second reading speech, when parroting the praises of this announcement, did not say it was 550 extra beds and 275 extra nurses over and above those that had already been budgeted for by the previous Labor Government. It is pleasing for them to talk about 1,390 extra beds and 2,475 extra nurses, but the bulk of that had already been projected in the budget of the previous Labor Government.

According to the Government's election promises, the only additional cost for this whole policy on extra beds, extra nurses and extra teachers is an additional $340 million. Remember that figure when the Government talks about budget black holes. I will get to that later because I know the Hon. Matthew Mason-Cox is keen to hear about it. The previous extra beds and nurses announcement was already funded in the State budget and by the Commonwealth. The 2,475 extra nurses referred to in the Minister's second reading speech now becomes 275 extra nurses. Nowhere in their announcements was there one word about an attack on the working conditions of nurses and teachers. Nowhere in the Minister's speech was there any mention that the additional 275 nurses and 550 beds would come about by removing nurses' night shift allowances, attacking police rosters and cutting public sector jobs.

None of this was mentioned during the election campaign. Indeed, if the election commitments were to be believed, the Coalition was making savings of $2.8 billion for what the Minister outlined in his remarks as outlays of nearly $340 million. The O'Farrell Government at that time also committed a savings plan for work on planning and budgeting for the North West Rail Link. When talking about infrastructure we must remember that according to the Coalition's pre-election commitments its savings plan was going to fund all of this. All of these proposals were part of its committed election process. Let us refer to the detail of those commitments.

According to the O'Farrell Government's election commitments, the recurrent budget would have a 25 per cent reduction in consultancy expenses, totalling $80 million over four years to 2014-15; abolish the displaced employees list, totalling $56 million over four years; a 25 per cent reduction in travel, totalling $140 million over four years; a 25 per cent reduction in advertising, totalling $80 million over four years; a total government procurement of $1.15 billion over four years; and for Sydney Ferries, a total of $40 million over four years—a fairly large figure. According to the Government's election commitment, the Sydney relief line and the Epping to Parramatta rail link will be deferred, at a total cost of $2.4 billion over four years. The Coalition committed specifically to transfer funding to the construction of the North West Rail Link and South West Rail Link—no ifs or buts about it. The Coalition said, "We've got a savings plan. We've got the money there. This is where we're going. We won't be attacking your public sector conditions on this. We have a plan."

The Government needs to explain to this Chamber what happened to its savings plan. Why suddenly has its savings plan disappeared? The forecast spending was $2.4 billion. The Coalition was going to reduce government external consultancy expenses by 25 per cent. Apparently, part of its savings plan is to reduce reliance on external consultants and improve the technical capabilities of the New South Wales public sector. I am not sure of the detail and I do not know whether external consultancies means casual nursing staff or bringing in architects. I am sure that Government members will explain why their forecast budget impact totalling $80 million—which they say they outlined before the election because they were fiscally responsible—suddenly cannot meet the commitments they made before the election.

The Government will abolish the unattached employees list. Of course, we know that means that there will be forced redundancies. That is the reality of abolishing the list. The forced redundancies of the unattached employees list will total, according to the Coalition, $56 million over four years. The Government says it will reduce government domestic and international travel expenses by 25 per cent. I assume that we in the Parliament will no longer travel anywhere. That is probably a good thing; I do not know. Let us see how many overseas trips are taken by Ministers and members of Parliament as the reduction in overseas travel is implemented.

The Hon. Matthew Mason-Cox: Point of order: My point of order relates to relevance. The member is canvassing a range of expense items from an imaginary budget. I ask that she be directed back to the leave of the bill, which deals with industrial relations.

The Hon. LYNDA VOLTZ: To the point of order: Obviously, the member did not read the Minister's second reading speech when the bill was introduced. The Minister specifically referred to the Government's election commitments as the need for this legislation.

The Hon. Duncan Gay: To the point of order: The member is misleading the House. She was talking about overseas travel for members and others. The second reading speech does not mention that. She indicated also that no-one in the Government had spoken on the bill, yet in speaking to the point of order she used the words "from the Minister's speech". How can a Minister make a speech and no-one from Government speak?

The Hon. LYNDA VOLTZ: Further to the point of order: I fail to see with regard to international travel expenses how politicians are suddenly exempt and that it is not part of the second reading speech when the Government is proceeding on that whole premise. I am sure the members of the public would fail to understand why politicians are exempt from the public sector savings.

The Hon. Greg Donnelly: To the point of order: The fundamental problem is that the Government refuses to participate in this debate. We are left with trying to join the dots together in respect of the implications of this legislation. In trying to do that, we are required to examine a range of issues. On that basis, the exploration of the matter by the member is completely within the leave of the bill and the debate. She is not out of order.

The Hon. Shaoquett Moselmane: To the point of order: The Hon. Lynda Voltz was not misleading the House. In actual fact, she was within the ambit of the debate. Most importantly, other than the relevant Minister reading a second reading speech without any further comment, Government members have not spoken in the debate. The member suggested that no other member on the Government side has spoken.

The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! There is no point of order.

The Hon. LYNDA VOLTZ: I thank you, Madam Deputy-President, for the ruling. International travel expenses seem to be an affront to the other side when I mention that the reduction might apply to politicians. Of course, the Coalition was going to get better value for money from government procurement: it was going to acquire 60 per cent of government expenditure on goods and services to be purchased through whole-of-government contracts by 2015. And, of course, there were also going to be savings from Sydney Ferries of $40 million over four years—savings to the Government, of course. We do not know how much it will cost the public.

That will be a problem for the member for Manly. The Government is outlining its election commitments as though they were dependent on this bill. Mysteriously no mention of it was made during the election campaign. The Minister is crying havoc and letting slip the dogs of war. The Government outlined projected savings of $2.8 billion for its commitments and has outlaid $340 million for its commitments to nurses, beds and teachers—unless the Minister has discovered that the Coalition's figures were wrong from the start. The Minister in his second reading speech went on to say:
      To this end we have announced the establishment of the Public Sector Commission to provide advice on public sector reform. In order to deliver on this plan and ensure that the commitments will be funded, action needs to be taken to control government expenditure. Employee-related costs are the largest component of government expenditure, accounting for almost half of government expenses.

There it is: all of a sudden it comes down to the wages of the workers who deliver the services to our communities, the services that members of the public actually expect State governments to deliver. State government is the level of government that delivers doctors, hospitals, nurses, teachers, schools, buses, roads along with local government.

The Hon. Walt Secord: Hansard.

The Hon. LYNDA VOLTZ: Yes, they deliver to the Parliament. This part of government goes directly to service delivery. The Federal Government does not deliver hospitals or doctors; it does not treat one patient. The responsibility for these people is with the State Government. The body that educates our children and has built up an education system over centuries is the State Government. The bodies that have dealt with the Industrial Relations Commission since the 1800s are State governments. All these services have been developed by State governments. State governments provide services to the people. It is not surprising that wages are a major component of the State Government: that is what we do. We should ask why all of a sudden the Government no longer believes its only savings figures from its election promises. We can only assume that it is going back to its fictional oratory—spin—on the budget black hole, that time-honoured tradition of finding an excuse to introduce policy that it did not tell anyone about.

The Hon. Walt Secord: No mandate.

The Hon. LYNDA VOLTZ: It has no mandate. It hopes that the spin will deflect attention from the fact that this Government did not tell people about it before. At least Peter Debnam was honest about what he was going to do to the public sector. Maybe the Government learned a bit from the experience of Peter Debnam about not telegraphing its punches to the public sector about what it intends to do. The report of the independent Parliamentary Budget Office has discredited the analysis of the State's financial position by both Barry O'Farrell and Treasurer Mike Baird. There is now not one but two reports that make a mockery of the Premier's so-called budget black hole. The excerpt from the Parliamentary Budget Office on page 8 states:
      The above analysis suggests that most of the claims made in the relevant media release of 27 April 2011 [titled "O'Farrell: Black Hole Blows out Further] are unsupported by evidence or conflict with available information on the State's fiscal position and budgetary processes.
There it is. They put out a press release about the budget black hole to divert attention, and what do we find out? It is not supported by any of the evidence. Go figure. Maybe the Government needs not question time committees but more media people to insert some facts into its media statements. On page 7 the report states:
      The media release offers other claims of gross economic incompetence. Insofar as fiscal policy is concerned, the State's triple-A status does not support this claim.
That is the triple-A status that this State had for the entirety of the former Government. What is the triple-A status? It says that the Government is a good economic manager, is rock solid and has good fiscal credentials. It continues:
      A fear that Labor had cooked the books to distort the true state of New South Wales is not supported either by the report issued by Mr Lambert or by his examination of the available data.
Not only did the Coalition not tell the truth at the time of the election about its intentions but it put forward a savings plan that suddenly seems to have disappeared. The Coalition issued press statements to distort the true state of the finances of New South Wales, and they are not supported by either report. Does the Coalition really think anyone is buying its black hole claims? If one reads the major national newspapers one would have to say, "I doubt it". The editorial of 28 April in the Sydney Morning Herald stated:
      TREASURY'S report into the NSW Government's purported "black hole" reveals what a hamfisted job Barry O'Farrell is doing at informing the NSW public about the true position of the state's finances. Of the original claim of a $4.5 billion hole, Treasury finds only $1.9 billion could credibly be claimed as a discrepancy between the midyear budget review and Treasury's incoming brief to the government—
I know that the Hon. Matthew Mason-Cox will probably clap about the $1.9 billion—
      and even this discrepancy "accurately reflected available information at the time" and was "consistent with a robust approach to budgeting adopted by NSW Treasury'.

But despite all the statements and reports saying the claim was wrong and absolving the then head of Treasury, Michael Schur, who reported to the Government, he was let go on "personal gardening leave". Surprise, surprise! Even though the reports support what he said, Barry O'Farrell advertised his job. That is the Premier's idea of clear and transparent government. Treasury provides a great report and advises exactly what is going on—it is robust, frank and fearless in its views—and what does the Government do in the name of transparent government? It gets rid of Schur because it does not like what Treasury was telling it. It does not support the Government's fictional black hole so it gets rid of him, even when report after report, and newspaper article after newspaper article, support Treasury. That does not matter—off you go, Michael. The Sydney Morning Herald continued:
      All this talk of "black holes" comes straight from the standard-issue political playbook. The political aim of the game is to discover a black hole big enough to justify deep cuts to the predecessor's projects to free up the funding needed to implement ideas …

      Voters did not depose the Labor government because it couldn't add up.
The Sydney Morning Herald was wrong. It was not to free up funding for a new idea—or maybe it was a new idea. It was an excuse to attack the unions and the wages and conditions of the public sector. If it was for anything else, I look forward to hearing about it from the Government. The editorial went on:

      For an incoming government that rightly fought against spin from opposition, this heavy handed use of "black hole" politics, not to mention hysterical comparisons between NSW budgeting and Enron is not promising. Indeed, it may even be dangerously counterproductive.

      In its handling of Schur, the Liberal leadership risks creating unnecessary fear and hostility in Treasury, the central economic decision-making department represented in cabinet. Incoming governments have always had the freedom to choose their department heads. If O'Farrell did not deem Schur a competent, or even desirable, head of Treasury he could simply have stood him down. He did not need a smoking black hole to blast him out. How can this performance do anything but breed mistrust and cynicism?
The Hon. Walt Secord: Point of order: The Hon. David Clarke is asleep.

The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! The Hon. Walt Secord has taken his first point of order. There is no point of order. I welcome on behalf of the members of the Legislative Council the participants in the secondary school leadership program who are in our upper gallery. Welcome to the Legislative Council on this rather auspicious occasion. We hope you enjoy your visit to the Parliament.

The Hon. LYNDA VOLTZ: So the Sydney Morning Herald may not be the favourite newspaper of Government members. However, the Australian was of the same view. Under a heading "Barry O'Farrell's attempt to claim that NSW Treasury and the former Labor Government cooked the books is turning into a Dr Who episode." Given the terminology, it could almost have been written by the Hon. Dr Peter Phelps. It states:
      The "incredible shrinking black hole" as claimed by O'Farrell, began as a $4.5 billion gap between the budget numbers in the half-yearly review and what Treasury boss Michael Schur told the new Premier on his first day in office.

      By day one, the $4.5bn had shrunk to $4.3bn, after The Australian found O'Farrell had wilfully ignored an improvement in the budget position over the first two years of the four-year forward estimates …
Here we go again. We are getting more spin from the start—not only does the Coalition devise figures that are not true and are unsupported—

The Hon. Walt Secord: Too much spin.

The Hon. Matthew Mason-Cox: Point of order: I take offence at the master of spin saying that there is too much spin.

The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! There is no point of order.

The Hon. LYNDA VOLTZ: The article continues:
      That's the number former Treasury boss Michael Lambert, tasked with getting to the bottom of the hole, says you arrive at if you compare like with like.

      O'Farrell failed to do this when he placed the four years in the December review next to the five contained in the briefing he received from Schur. Cue the arrival of the Daleks—
There is a reference to the Daleks. I really am surprised. If it mentioned dragons I would believe it was written by the Hon. Dr Peter Phelps. I will not repeat the mistakes of other members and say that he takes a draconian view of such matters. The article continues:
      But here's the climax: there's nothing black hole about the $1.9bn hole. As revealed by the Australian on March 31—
the Australian likes to promote itself—
      the updated estimates given to O'Farrell by Schur simply reflected revised macro-economic parameters. So O'Farrell has chosen to begin his premiership with a disgraceful politicisation of the state's financial position that also seems certain to deprive him of Schur's services.

Obviously Schur has done an outstanding job in giving the Government what it needs. It continues:
      Is he softening voters up for budget cuts or simply trying to deepen Labor's ignominy? Fiscal credibility was the one strength NSW Labor could claim to, even in its twilight. Lambeth's report leaves that secure but O'Farrell's credibility damaged.
We have been given no explanation as to why the Government cannot meet the savings commitments it made before the election. We have the black hole, which—the more and more we read into it—is disappearing in the tardis or in the black hole of some star at the edge of the universe. We should go to that old radical Ross Gittins, the economics editor of the Sydney Morning Herald, who wrote on 7 May—

The Hon. Charlie Lynn: Doesn't he agree with you?

The Hon. LYNDA VOLTZ: Not often, but that is okay. I listen to people who do not agree with me. On 7 May in the Sydney Morning Herald Ross Gittins wrote:
      Without a Premier with the wit to understand the essential role played by treasury and its treasurer in keeping him out of financial trouble, even the most able and determined treasury won't be able to save a government and the public from its folly. This makes it all the more remarkable that the first act of the new Premier and his Treasurer, Barry O'Farrell and Mike Baird, who arrived with solemn vows to reform the state's finances, was to sack their treasury secretary, Michael Schur. This guy must have been pretty bad, right? Wrong. Was he a political appointment of the previous government? No, a career public servant with high qualifications. And people who were political appointments did survive (as their good performances said they deserved to). Was Schur lazy or incompetent? No, quite the reverse. He was both diligent and inventive in his efforts to protect and improve the state's finances. Like his predecessors, he gave the government of the day frank and fearless advice.

      So what was the problem? What game are these guys playing? You'll find this hard to believe, but Schur is the innocent victim of grubby politics. In opposition, O'Farrell and Baird claimed the Labor government was "cooking the books". In government they claimed to have discovered a $4.5 billion "black hole" in the budget, which the media quickly exposed as a fudge. And then their own outside auditor failed to find evidence of wrongdoing.

      I believe Schur was made a scapegoat to cover O'Farrell's political embarrassment over his failure to produce a smoking gun. We can't prove it, he's saying, but nudge, nudge, wink, wink. The alternative explanation is that Schur was a victim of a power struggle between Baird and the new Finance Minister, Greg Pearce—
who may wish to elucidate that later—
      who has been given a key part of the Treasurer's job and wants the lot. Baird failed to protect his own man. Either way, O'Farrell's treatment of Schur is despicable. He's now free to make his own political appointment.

      The guys who supposedly are going to do a much better job of managing the state's finances are off to an appalling start and they are already starting to roll over on their promises.
According to Ross Gittins, they are already starting to roll over on their promises. That does not come as a surprise to anyone—certainly not to anyone on this side of the Chamber. In his second reading speech the Minister stated:
      Underpinning the need for fiscal restraint is the Government's wages policy. A policy first introduced by the previous Labor Government in 2007.
That is nowhere near the former Government's policy. Talk about being slandered in the House! It goes on:
      The New South Wales Coalition Government will continue the key provisions of the wages policy introduced by the former Labor Government.
I would like the Minister at some stage to indicate where in our policy it says that the Industrial Relations Commission will not be the independent umpire. The Minister should either point to it in our bill or take back the statement. The Minister will have plenty of opportunities to respond, because there is plenty more where that came from. It continues:
      However, the Coalition Government has proposed changes to the way the wages policy operates to ensure that the key requirements of the wages policy are actually followed. Our policy and legislative response will ensure that wage increases of 2.5 per cent are available each year to our hard-working public sector employees.
They will not necessarily get the wage increases, and if they do not get them there ain't nothing they can do about it. Too bad, eh? The most distinctive feature of the Australian industrial relations system is the existence of industrial tribunals to regulate the behaviour of industrial parties. Such tribunals have traditionally exercised a very wide range of powers and functions, including the conciliation and arbitration of industrial disputes, and claims as well as the determinations are strictly legal issues through the exercise of judicial power. Judicial power has been defined as being concerned with ascertainment, declaration and enforcement of rights and liabilities of the parties as they exist or are deemed to exist at the moment the proceedings are instituted. The function of arbitral power in relation to industrial disputes has been described as being to ascertain and declare, but not enforce what, in the opinion of the arbitrator, ought to be respective rights and liabilities of the parties in relation to each other. Not any more under this bill.

We should look at the history of industrial arbitration in this country and how we have got to this point. It is very important to go back and look at the 1940 Act, which is the foundation of the Industrial Arbitration Commission, and then at the 1991 and the 1996 Acts. The 1996 Act is, of course, the current Act and the Act that this Government is seeking to amend. The original regulatory scheme, which has since been repealed, was the Industrial Arbitration Act 1940, which at that time was a two-tier disjunctive structure. At the first tier were the conciliation commissioners, conciliation committees, industrial magistrates and the industrial registrar. The Industrial Commission of New South Wales constituted the second tier, which itself operated at two levels: the single-member level and the Full Bench level. The main linkages between the first and second tiers were the appeal provisions, the provisions for references from the conciliation commissioners to the Industrial Commission and vice versa, the allocation by the president of commissioners to Full Benches, and the statutory requirement for members of the Industrial Commission to meet with the conciliation commissioners three times a year.

The former Industrial Commission was established under section 14 of the 1940 Act as a superior court of record. Members of the commission were required to be legally qualified, which is of course appropriate, and they could be appointed if they were a judge of the Supreme Court or the Land and Environment Court, a barrister of not less than five years standing, or a solicitor of not less than seven years standing. Members were to have experience at a high level in the industry, commerce, industrial relations or the service of a government or an authority of a government, or to have acquired the relevant academic qualifications. These requirements reflected the fact that the Industrial Relations Commission was to be made up of judicial and non-judicial members with relevant practical or academic experience or knowledge. The constitution of the Industrial Commission in this way enabled it to carry out judicial and arbitral functions within one tribunal.

Section 30A of the 1940 Act set out the general powers and functions of the Industrial Commission, which included powers of conciliation in relation to industrial matters and regulated contracts under part 8A of the 1940 Act. In addition, the Industrial Commission was able to make binding declarations of right whether or not consequential relief was or could be sought. Industrial matters were widely defined, according to section 5 of the 1940 Act, as matters or things affecting or relating to work done or to be done, or the privileges, rights, or duties of employers or employees in any industry. Specific examples of industrial matters given in the definition included wages and remuneration, hours of employment, the interpretation of industrial agreements or awards, and equal pay issues. Those are, of course, important because they go to the heart of what the bill before us will determine into the future.

The Industrial Commission had wide judicial and arbitral powers with respect to industrial matters. Particular powers and functions of the Industrial Commission were to be found throughout the Act. For example, section 30B outlined the particular jurisdiction of the Industrial Commission in Court Session, which included the power to hear and determine certain appeals. An important example of judicial power was section 88F, which enabled the commission to declare certain work contracts, arrangements or conditions void or to vary such contracts, agreements or conditions. The grounds for such a declaration or variation were that such contracts or agreements were unfair, harsh or unconscionable, against the public interest or provided for total remuneration less than a person would have received as an employer, or were designed to avoid the provisions of awards, industrial agreements, part 8A agreements or contract determinations.

Section 15 of the 1940 Act provided for the appointment of conciliation commissioners to be chairmen of conciliation committees and tribunals. A conciliation commissioner also had further powers to summon any person to a compulsory conference for the purpose of settling an industrial question, dispute or difficulty. It has been commented that in practice the great majority of industrial disputes and difficulties were dealt with and settled in compulsory conferences before conciliation commissioners. The establishment and constitution of conciliation committees for any industry or calling, or for any combination arrangement or grouping of industries or callings, was provided in section 18 of the 1940 Act. Each committee had to consist of an equal number of employer and employee representatives and a chairman.

The original jurisdiction of the conciliation committees was provided in section 20. A committee would have cognisance and power to inquire into any industrial matter in the industry or calling for which it was established; and in respect of such industry or calling a committee may, on any reference or application, make any order or award in relation to a number of matters, including wage rates, hours of work and the determination of any industrial matters. A committee proceeded first by way of conciliation; then it proceeded to arbitration on a matter. The making of awards was the major role of the conciliation committees. Section 126 of the 1940 Act provided for the appointment of industrial magistrates who shared the qualifications of a magistrate and throughout the State had the jurisdiction and powers conferred by the Act on an industrial magistrate; and in the exercise of such jurisdiction they may do alone whatever might be done by two or more justices constituting a Local Court.

Industrial magistrates were described as the key enforcement agency within the tribunal structure. A key example of the powers of an industrial magistrate was section 91, which provided that a person could make application to an industrial magistrate. The 1940 Act was the basis on which, in 1991, the Greiner Government made significant changes to the Industrial Relations Commission. Importantly, the 1991 changes significantly changed the way the commission worked. It is important to note the lack of consultation undertaken by the Greiner Government in 1991; that lack of consultation was fundamental to why the 1991 Act failed to work effectively. Importantly, if a government rushes to introduce industrial relations legislation and changes the Industrial Relations Commission and gets it wrong, it gets it wrong big time. It is important to have extensive consultation because the Government wants to get it right.

The Hon. Walt Secord: Must go to a committee.

The Hon. LYNDA VOLTZ: That is right—it must go to a committee. The Hon. Walt Secord makes a good point. The amendment moved by the shadow Minister, the Hon. Sophie Cotsis, shows the importance of referring the bill to a committee so that there is wide-ranging consultation on the legislation.

The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! I interrupt the Hon. Lynda Voltz to advise that we have a group of students from the secondary schools leadership program in the public gallery. Like the other students, they are from the Hunter and Central Coast region, and the Illawarra and south-east region. On behalf of members of the Legislative Council, I welcome you to the gallery and trust that you enjoy your visit to the New South Wales Parliament.

The Hon. Charlie Lynn: We apologise for the standard of debate.

The Hon. LYNDA VOLTZ: It is good—

The Hon. Walt Secord: It may be boring to members opposite, but it's WorkChoices on steroids.

The Hon. Matthew Mason-Cox: Point of order: The Hon. Walt Secord is becoming hysterical. I ask you that you call him to order. He pretends that he is still spinning for the Government.

The Hon. Walt Secord: It's WorkChoices on steroids.

The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! I thank the Hon. Walt Secord for providing entertainment for the people in the gallery. However, I am sure they would like to hear the contribution of the Hon. Lynda Voltz.

The Hon. LYNDA VOLTZ: It is good to see young people interested in the processes of government and how decisions are made in this State. However, they might be concerned that some members in the Chamber are not interested in any debate on any topic at all.

The Hon. Greg Pearce: They threw you lot out.

The Hon. Walt Secord: Point of order: I cannot hear the speaker.

The Hon. Greg Donnelly: To the point of order: Another matter needs to be raised with respect to the students. Most of them are probably under the age of 18 and did not participate in the recent State election. Therefore, they cannot be associated with throwing out the Labor Government.

The Hon. Matthew Mason-Cox: To the point of order: After listening to members opposite they will vote for the Coalition in the future.

The Hon. Greg Pearce: And they would have if they could have.

The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! There is no point of order. The Hon. Lynda Voltz has the call.

The Hon. LYNDA VOLTZ: Although that exchange was entertaining, I return to the 1991 legislation. It is worth noting the stand taken at the time by the then shadow Attorney General, the Hon. Jeff Shaw, to the changes to the Industrial Relations Commission and his point about how the system works. He said:
      The trade union movement has been remarkably flexible about adjustments of conditions of employment and, in appropriate cases, working conditions certainly ought to be readjusted. However, that should not lead to the open slather envisaged by this bill. The readjustment ought to be carefully managed refinement of conditions of employment which precludes exploitation and inappropriate or untoward practices.
He pointed out that changes needed to be carefully managed and the process going forward in such legislation needed to be open. Indeed, at that time many groups expressed concern about what the then Coalition Government was doing in the 1991 legislation. At the time it was not the trade union movement or the workers but the Employers Federation that expressed reservations about the 1991 legislation, which was rushed through without consultation, in the same way this legislation is being rushed through without consultation, and the Metal Trades Industry Association expressed concern. At the time the Country Meat Workers Association, which ran a number of abattoirs throughout the State, wrote a letter to the Sydney Morning Herald, which the Hon. Jeff Shaw read into Hansard. In relation to Justice Fisher of the Industrial Commission, the association said:
      Decisions were firmly based on merit, which ultimately restored respect and trust in the integrity of the Commission, despite the fact that both sides may have found some decisions unacceptable, as did the New South Wales Government in respect of decisions relating to public sector employees.



      We currently have an Industrial Relations Commission comprising learned Judges with many years' industrial experience, supported by ten New South Wales Conciliation Commissioners with similar extended industrial experience. The New South Wales industrial system is not without its imperfections, however, it is generally accepted as being the most efficient and independent in Australia.

      I do not believe that the current situation is a straight forward opposition to change, but rather one of caution, which is to replace an industrial relations system that has worked effectively under the Presidency of Justice Fisher for the past ten years. The important question is, where does industry go if it is found that the New South Wales Government made a mistake with the new legislation? Correcting political mistakes is often a hazardous and painful experience.

The employee representatives did not say that; the employer representatives expressed that concern about the way the 1991 legislation was rushed through the Parliament without consultation with members of the community. Jeff Shaw further said:
      Sensible Government members will pause to take on board the views of employer organisations of that kind and not just dismiss them, as do the ideologues, as the views of members of the industrial relations club or views that result from trade union pressure. They are frank, honest and concerned views about the extremism of this legislation.

He said the Labor Government would repeal that 1991 legislation, which was certainly unbalanced, and replace it with a balanced industrial relations framework that would not only focus on efficiency and productivity but would also bear in mind the overriding need for equity in the industrial relations system, take a cooperative approach and engage in major and real consultation—members opposite should note that point—with employers and trade unions. That is a process the then Coalition Government did not bother to follow. We all know what happened to that legislation. This is simply history repeating itself. We have a Coalition Government that wants to enact flawed industrial relations legislation. Most importantly, it wants to ram it through the Parliament. Members opposite do not want to consult anyone because they are not interested in consulting. This Government is only interested in telling people what to do; it will not consult the people.

In 1995 the then Attorney General introduced industrial relations legislation and even though it was not passed because the Parliament was prorogued it became the 1996 bill. The then Coalition Opposition opposed the first reading of that bill, although it did not give any reasons for doing so. That is similar to what the Government did yesterday when it wanted to prevent members from debating Private Members' Business. Members opposite refused to put up an argument to justify postponing Private Members' Business. Yet again, this is history repeating itself. The then Coalition offered not one word or any rational argument for opposing the first reading of that bill.

The then shadow Attorney General said that the Government was not being driven by some academic agenda or a theoretical construct imposed upon the process. If the Coalition had consulted the leading advocates of the day it would have acknowledged that the legislation had been the subject of extensive consultation. The Labor Government and Attorney General Jeff Shaw listened to the people and forged a consensus. That is what effective governments do. They listen to people and reach a consensus; they do not ram legislation through the Parliament. The Government came up with an impressive piece of legislation, but it was not seen as immutable. It was always willing to talk about it. That process is probably a novel idea for members opposite. Jeff Shaw said that the Government would amend the legislation if that was necessary or appropriate. That is what happens as a result of a consultation process. It involves talking to people who might point out flaws in the legislation and subsequently rectifying them to produce a workable bill that will serve the State well.

The Hon. Greg Donnelly: That is all a bit too hard for them.

The Hon. LYNDA VOLTZ: Yes, it is. Unlike this Coalition, that Labor Government consulted the employees and unions of New South Wales. The 1996 bill gave effect to the Government's pre-election commitments. That is probably another novel idea for members opposite. The Labor Government told the people that it would significantly reform the industrial relations system, but before doing so it would consult. It told the people what it would do in government; it did not stick the legislation in a drawer. The Government told the people that it would introduce a bill that would implement an industrial relations framework to promote workplace reform while at the same time maintaining appropriate standards of fairness and protection of employee rights. There is nothing wrong with protecting employees' rights. That bill included a range of measures designed to eliminate discrimination and to promote equality of opportunity in the workplace.

Members opposite simply do not understand that the Industrial Relations Commission has a significant role in dealing with pay equity in the workplace. I would like the Minister for Finance and Services to explain how the librarians' case would be dealt with under his Government's legislation. How would a system that has no flexibility to deal with inequity in the workplace address the case of librarians, of whom 85 per cent are women, who are grossly underpaid? I will deal with that issue later.

As I said, the industrial relations bill was a product of comprehensive consultation with interested parties. The then Government approached industrial relations reform by seeking a broad consensus and by formulating legislation that attempted to incorporate a fair balance between competing views. I will now detail the process followed in the development of the 1995 legislation. The first stage of the reform process involved a comprehensive consultative process to review the existing legislation—that is, the 1991 legislation, which was widely criticised by employee and employer organisations across the State. That is not a surprise because no consultation had been undertaken.

The then Attorney General established and chaired a working party of peak industrial organisations to discuss reform proposals. That working party met on 11 occasions from April to November. The membership included employer nominees from the Confederation of Australian Industry, the Metal Trades Industry Association of Australia, the Chamber of Manufacturers of New South Wales, the Retail Traders Association of New South Wales and the Employers Federation of New South Wales. The employees were represented by what was then called the Labour Council of New South Wales, which is known these days as Unions NSW, representatives of the Transport Workers Union, the Teachers Federation and the Miscellaneous Workers Union. Of course, that union covers cleaners who then worked in our schools and aged care workers, who do such an important job in the public sector.

When we talk about the public sector we often forget to mention the people who make the tea in hospitals and who might not be seen as an important part of the workforce. People also forget the staff who clean surgeries, aged care workers and the people who ferry patients. The working parties' discussions were augmented and assisted by the Blake Dawson Waldron Professor in Industrial Law at the University of Sydney, Professor Ron McCallum, and Conciliation Commissioner Donna McKenna of the Industrial Relations Commission of New South Wales, who was appointed as a part-time law reform commissioner.

In addition to the working party process, a public review where one goes out and talks to people—a pre-election commitment of Barry O'Farrell that he is not adhering to, unlike the pre-election commitment of Jeff Shaw to bring in industrial relations changes—coordinated by the Department of Industrial Relations commenced in April that year. More than 40 written submissions were received from parties as disparate as BHP Pty Ltd and taxidrivers. It is good to receive submissions from BHP and taxidrivers. Discussions were also held with organisations such as the New South Wales Farmers Association, the Meat and Allied Trades Federation and the Small Business Combined Association. The first stage of the consultative process confirmed what everybody probably knew at that time: there was a need for reform to simplify and streamline the existing industrial relations system, which was widely considered to be complex and legalistic—which is what happens when a bill is introduced without consultation. If there is no consultation with industrial relations experts or employer or employee representatives, the bill will end up being complex and legalistic.

The Hon. Greg Donnelly: Only consultants from Freehills.

The Hon. LYNDA VOLTZ: Yes, and that is what the 1991 legislation was. The second stage of the consultative process adopted by the then Government involved the release of an exposure draft bill. There is a novel idea—draft a bill and put it out there for the public to look at.

The Hon. Charlie Lynn: We did that on 26 March; it was called a ballot paper.

The Hon. LYNDA VOLTZ: I note the interjection that the Government provided this on 26 March. I would be interested to see one scrap of evidence about this bill before 26 March.

The Hon. Greg Donnelly: A mandate for anything.

The Hon. LYNDA VOLTZ: That is right. Government members did not have the guts to say it before the election. The then Government released an exposure draft bill for consideration by the working party and for public discussion approximately one month before the final version of the bill was tabled in Parliament. The release of the exposure draft bill was publicised in the print media. When a draft bill is prepared interested parties should be informed about that and invited to examine it. More than 800 copies of the exposure bill were provided by the department to interested organisations and individuals. Members of the public could then determine whether there were any problems with the bill, such as whether it is complex, legalistic, and whether there had been sufficient consultation.

More than 50 written responses were received by the department commenting on the exposure draft bill and suggesting various changes. The bill is not only put out for public comment but for suggested changes. That has never happened under a Coalition government. Not once in this State on an industrial relations bill has a Coalition government ever followed this procedure. Not once has it taken these bills out to the public and consulted on them. On that occasion the industrial relations community and other practitioners had a real impact on fashioning the legislation throughout the review process.

I will go now to the provisions in the bill. It is hugely important, given that the 1991 bill was complex and legalistic, that the 1996 bill was written in plain English. It was written in a language that people could understand. Chapter 1 included the objects of the bill and the overall legislative framework. For instance, the commission was required to take into account the public interest. It provided, for that purpose, that the commission must have regard to the objects of the proposed Act, the state of the economy in New South Wales and the likely effect of its decision on the economy; so, not only the state of the economy but what its decision would do to the economy. It could not ignore that when it was making a decision; these were within the objects of the bill.

The legislation broadly defined key terms with some alterations to the 1991 Act. The definition of public sector employee replaced the existing definition of employee of the Crown and was intended to be an expansive definition covering all employees of the public service and public authorities including, for example, clerical officers in central agencies, ambulance drivers and technical and further education teachers. Chapter 1 also included a definition of industrial matters which, although shorter than the definition in the 1991 Act, was also intended to be expansive in its operation and not narrower than the definition in the present legislation.

One of the examples of industrial matters is the reference to discrimination in employment. It was intended that the reference to discrimination in employment should be capable of comprehending not just the nominated matters and grounds within the New South Wales Anti-Discrimination Act 1977, but also the grounds for discrimination referred to in the Commonwealth Industrial Relations Act 1988 and the relevant Industrial Labour Organisation conventions that Australia has ratified. I am sure the Government would have checked this bill against the International Labour Organisation conventions, and I am sure the Minister will enlighten us on that in his speech in reply.

Chapter 2, which dealt with general employment matters, made provision in particular with respect to awards, enterprise agreements, parental leave, part-time work, unfair dismissal, unfair contracts and payment of remuneration. All these things will be affected by the bill before the House. The 1996 bill proceeded, in part, on the presumption that a system of appropriate minimum award conditions is the essential underpinning for the protection of wages and conditions of working men and women. Part 1 of chapter 2 gave the commission comprehensive powers to make and vary awards setting fair and reasonable conditions of employment for employees having regard to the objects of the bill.

It was the specific intent of the legislation that awards would continue to have common rule effect and also to permit awards that were specific to particular industries, occupations and enterprises. Ordinarily, an award would not apply for less than one year or for more than three years or for a period not exceeding the anticipated life of a project. Awards would continue to contain appropriate procedures for dealing with industrial disputes and the commission would have an expanded role in ensuring that awards kept up to date, relevant and consistent with the objects of industrial and anti-discrimination legislation.

In order to facilitate the resolution of disputes in workplaces, awards were required to include a dispute resolution process. The bill did not provide a mandatory set of inclusions for such procedures because the Government believed the parties and the commission were best placed to develop procedures that were relevant to the needs of a particular workplace or industry. There were two general exemptions. The first was a special provision to allow awards to have a term equating to the anticipated life of a project—that was particularly for construction projects—and the second was that the commission could make an interim award for less than one year if it was satisfied that special circumstances existed.

The bill accommodated competing considerations of preserving the sanctity of within-term awards against extra claims while also allowing latitude to vary awards where, for example, the commission considers it is not contrary to the public interest and there is a substantial reason to do so. Provisions concerning particular provisions of employment must also be provided in awards on application. The use of the word "must" in relation to that matter was a conscious and deliberate one because the following important areas were seen by the Government as representing the necessary minimum for all employees, namely, ordinary hours of employment, equal remuneration and other conditions for men and women doing work of equal and comparable value, employment protection provisions, provisions relevant to technical change and minimum sick leave entitlements.

I have already raised the important issue of equal pay, which is also relevant to technical change. I will outline that aspect later in my contribution. I would like to hear more from the Government on this issue, particularly with regard to the nursing industry. Nursing has become very technical in its nature and the conditions change significantly. I believe this bill will have a big impact on the way nurses will be able to approach their conditions, which under this legislation they will not be able to negotiate. The draft exposure bill provided an averaging formula for standard hours of 40 hours per week averaged over a 12-week period. In response to the submissions from many parties—the Government actually responded to the submissions and made some changes—the averaging period was extended to 52 weeks for seasonal workers. This is what happens when governments, before introducing legislation, discuss the issues with union organisations, farmers organisations, or people in industries that might be affected by the legislation.

The change enabled the commission to provide appropriate arrangements in the industries and occupations that typically have peak operational periods. Fruit pickers come to mind as the most obvious occupation that would be under consideration there. Secondly, the commission must ensure equal remuneration and other conditions of employment, and the broad nature of the legislative direction concerning the matters to be considered under the clause. At that time the Government believed that clause was an important step in the direction of achieving pay equity. At the time the Government intended to make submissions in a pay equity test case and other cases relating to equality of opportunity to assist the commission to formulate a strong charter in that area. The Government subsequently did so. Later in my contribution I will refer to the State Library pay equity case.

I will not elaborate upon the enterprise agreements that were also included in part 2. However, I will refer to the national and State decisions. Part 3 of chapter 2 carried forward the provisions of the 1991 Act that enabled the commission to consider and adopt general wage decisions and other decisions made by the Australian Industrial Relations Commission, and to make the necessary changes to State awards as a consequence of their adoption. The outmoded adult basic wage provisions, which specified a minimum rate of $120.40 per week, had not been carried forward in the body of the legislation. The relevance, if any, of these provisions related in the past decade only to the adjustment of certain allowances and the like. In addition to the national decision provisions, the bill enabled the commission to make a general statewide decision. In effect, the insertion of these new provisions merely confirmed what happened at the time in cases such as redundancy pay test cases. The commission's power to make general State decisions is consistent with the specific principle-making powers found elsewhere in the legislation, such as those relating to part-time work agreements and enterprise agreements.

Importantly, chapter 2, part 4 of the bill carried forward provisions of the 1991 Act that confer an entitlement to a maximum of 52 weeks unpaid parental leave—that is, maternity, paternity and adoption leave. However, a number of changes were made to simplify and improve the provisions. In particular, in the case of male employees—who often get left out when we are talking about parental leave provisions—the consent of the employer was no longer required for the continuation of paternity leave for more than one week at the time of confinement, or for the continuation of adoption leave for the first three weeks, in order for the male employee to be the primary caregiver to the child. The removal of that requirement is an important equity measure and would have brought the State provisions into line with the minimum entitlements applicable under Federal laws. At that time the then Labor Government was strongly committed to addressing the needs of working parents, the elimination of workplace discrimination, and the promotion of equal opportunity. It is difficult to see how, under this legislation, that will happen.

The bill modified the notice requirements for employees who propose taking parental leave. Specifically, the 1991 Act required written notification some 10 weeks before the proposed leave. Those of us who have been through pregnancy know that it is not quite an exact science: you do not know precisely when your baby is coming. The 10-week provision is a little difficult to pick sometimes, so it was probably sensible to remove the provision from the Act. The modification allowed notice to be given orally or in writing. Strict notification requirements did not apply to the taking of any form of leave other than parental leave, and it was appropriate that parental leave entitlements should be put on a more equal footing.

The last relevant matter of note under that part was the revision of the provisions concerning transfers to safe jobs, where the present work of a female employee is, because of her pregnancy or breastfeeding, a risk to the health or safety of the employee or her unborn or newborn child. The recasting of the provision was designed to protect the mother and, quite properly and importantly, the child from exposure to avoidable risks. These are the sorts of conditions that need to be taken into account when legislation is sought to be introduced. Let us get away from the wages argument for a while. We are talking about the conditions set by the Industrial Relations Commission. We are also talking about the safety of a mother and her child, parental leave provisions, and other important conditions.

Under this legislation there will be no consultation and there will be no way for employees to put forward their case; it will simply be a matter of the Government deciding what it will give employees. Under this legislation the Government will be able to say, "We'll give you what we think you can have. We're not interested in what you think would be in your best interests; we are just going to give you whatever we want." It was the legislative intention that matters such as transfers to safe jobs may properly be treated as an industrial matter capable of conciliation and arbitration pursuant to the dispute resolution powers in chapter 3. I apologise to Hansard if I have repeated that sentence. I am sure they will fix it up.

The Hon. Shaoquett Moselmane: That is why they should be paid extra.

The Hon. Greg Donnelly: The same as policemen.

The Hon. LYNDA VOLTZ: Yes, I hope they have fixed up their entitlements for things like overtime or night shift, perhaps.

The Hon. Shaoquett Moselmane: They worked all night last night.

The Hon. Greg Donnelly: We on this side of the House support a pay increase.

The Hon. LYNDA VOLTZ: I am sure that within their award there will be some night shift provisions for Hansard employees, because they will not be getting them under this legislation. They certainly will not be able to walk up and ask for them. But Hansard staff should not worry: I will be reminding the Minister for Finance and Services of their need for night time entitlements.

The Hon. Shaoquett Moselmane: You might as well do it now.

The Hon. LYNDA VOLTZ: Yes. I just did, so that is all right. With regard to part-time work, in chapter 2, part 5 it was proposed to carry forward to the new bill the provisions which allow an employee, with the agreement of an employer, to work on a part-time basis despite any provision of an award or agreement that limits or restricts the circumstances or terms upon which the part-time work may be performed. Under the 1991 Act the availability of part-time work agreements was expanded massively without due regard to the safeguards and proper supervision of what were, in effect, private arrangements which can displace minimum entitlements in awards and agreements.

At the time the legislation was proposed the Minister made the point that part-time work agreements impose unconscionable burdens on the employees who are forced to accept employment on virtually any terms due to their comparatively weak bargaining position. Anyone who has been involved in part-time work, or who has represented part-time workers, will confirm the comparatively weak bargaining position those people are in. The Minister said that the working party had been advised of instances—this is an indication of where arbitration becomes vitally important—where a person who lives approximately 90 minutes from a major regional centre in this State was working a 60-minute shift under the part-time work agreement, that being the only employment available. The person drives for 90 minutes to get to work, works 60 minutes, and then has to drive for 90 minutes to get back home. Given these sorts of examples, there are sensible policy reasons why there should be minimum standards for people employed under part-time work agreements, such as minimum hours to be worked in a shift.

Accordingly, the Government introduced the following measures: first, a copy of part-time work agreements needed to be lodged with the registrar; and second, the commission was empowered to establish principles governing the application of awards and enterprise agreements to part-time work agreements. This allowed the commission to set relevant parameters for part-time work agreements. Those parameters were not intended merely to reflect the existing standards in awards but to establish a genuine base framework for the operation of part-time work agreements. Such standards are necessary to protect against the worst abuses of harsh and unconscionable part-time work agreements.

Chapter 3 of the bill dealt with industrial disputation and industrial action. The legislation was introduced at a time in the State jurisdiction when the level of industrial disputation was at a historical low. Only a small percentage of industrial disputes actually resulted in industrial action and these strikes were predominantly of a minor nature and short in duration. The best legislative framework to deal with industrial disputes must be able to handle, with appropriate flexibility, industrial disputes ranging from matters of statewide importance to those affecting perhaps only very small workplaces. The principles underpinning the provisions of the bill dealt with industrial disputation and industrial action and provided a simplified dispute notification resolution process: an emphasis on conciliation at the first instance; a single cost-effective process to deal with all questions of conciliation and arbitration and enforcement, reversing the current tendency towards excessive litigation; and an effective system of sanctions for breach of agreements or awards, including the imposition of penalties as a last resort to be entertained only after the process of conciliation and arbitration had been concluded.

If consultation at the workplace proved futile, employers and unions would be encouraged to use the expertise of the commission in the resolution of their differences, first by conciliation and with arbitration available as required. At all stages throughout that process the parties were to be held accountable for their conduct. When attempting conciliation the commission was empowered to do everything it considered proper to assist the parties to resolve the dispute, including arranging for compulsory conferences. If the commission came to the conclusion that conciliation would not result in settlement of a dispute, a certificate of attempted conciliation could be issued.

In considering whether to issue a certificate of attempted conciliation the commission was to take into account a wide range of factors surrounding the dispute, such as the conduct of the parties and the likelihood of reaching agreement. The legislation recognised specifically that conciliation should occur in an environment where the parties might participate free from coercion. The bill therefore provided that the commission must specifically consider the effect that any industrial action in connection with the industrial dispute was having on the parties and the public generally. In particular, the commission must give urgent consideration to the effect of any industrial action in connection with demarcation disputes.

The bill provided that a person may not bring or continue certain common law actions in tort arising from an industrial dispute while the commission is attempting to resolve the matter by conciliation and has not yet issued the requisite certificate. The introduction of a temporary bar on tort action is necessary to underpin the emphasis of conciliation within the industrial relations system. That temporary bar did not restrict a party's right to seek damages. Consequently, it was designed to encourage parties into conciliation at the first instance.

The bill also equipped the commission with the powers to resolve industrial disputes. It may use any or all of the following devices: continue conciliation, make recommendations or directions, make or vary awards, make dispute orders, and make any other kind of order it is authorised to make, including orders on an interim basis. It dispensed with the artificial and academic constraints of the interests/rights dichotomy and focused on ensuring the resolution of disputes in a prompt and fair manner with a minimum of legal technicality. The legislation recognised that an essential part of powers that should be available to the commission to resolve disputes is the ability to direct actions of the parties.

Chapter 4 dealt with the new Industrial Relations Commission, which replaced the Industrial Court and Commission. Part 1 provided for the establishment of an Industrial Relations Commission of New South Wales and set out its general functions. The commission occupied a central role in the regulation of industrial affairs in the State, exercising either as the commission or the commission in court session the range of functions divided between the Industrial Court and Commission. In accordance with a pre-election commitment of the Government, the Industrial Court was abolished and its function integrated into the commission and the commission in court session.

Part 5 dealt with the procedures and powers of the commission in exercising its jurisdiction. In particular, the commission when not in court session was not bound by legal technicalities or the rules of evidence. The bill was not as prescriptive as the 1991 legislation it replaced. Instead, the commission was giving wide-ranging discretionary powers concerning its key functions and role in its regulation of industrial affairs. This was meant to ensure that the legislative framework remains flexible and responsive to changing industrial situations and fluctuations in the economic cycle. One example of this discretionary approach was the commission's broad-ranging powers to make an award, order or other decision subject to conditions. Likewise, in recognition of the fact that the majority of matters before the commission were settled by consent, the commission was empowered to give full legal effect to all such agreements. The clause dealing with finality of decisions was a bolstered version of the clause contained in the 1991 Act. Where a specialist court or tribunal is established to deal with a particular area of law that is the forum where the particular body of law ordinarily would be determined.

The system of appeals under the 1991 Act gave rise to excessive litigation. The provisions concerning appeals were revised in the 1996 bill in a number of key respects. Under the provisions, appeals could only be made against any decision of the commission, whether made as a result of contested proceedings or by consent, and subject to discretionary extension. They were to be made within 21 days. Appeals to the full bench could be made only by leave. The bill ensured that standalone leave to appeal hearings might be heard separately from the overall merits of any appeal. Likewise the bill specifically permitted the full bench to delegate certain functions to a single member. These provisions had the aim of reducing any backlog in the hearing of appeals and filtering insubstantial and unmeritorious appeals. The nature of an appeal depends on the statute under which the appeal is authorised. As the proper construction of the appeal provisions in the 1991 Act had been the subject of differing interpretations, the appeal provisions within the 1996 bill were redrafted to provide clear legislative direction concerning the principle to be applied by the full bench when considering appeals against discretionary decisions of a single member. This is why the issue of consultation is such an important one because this is where you get it right by adopting this approach.

Unlike those on the other side the then Carr Labor Government was committed to recognising the right of a person to be a union member. I am sure there are those on the other side who believe that unions just should not exist. While enshrining the principle of freedom of association, which is what they did within this legislation, Jeff Shaw noted at the time, "Equally the Government is committed to enshrining adequate and workable protection from victimisation by an employer or industrial organisation on a range of grounds, including that the worker is or was a member or an official of an industrial organisation of employees, or otherwise an elected representative of employees, or does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or informs any person of an alleged breach of the industrial relations legislation or of an instrument."

The criminal flavour of the victimisation provisions contained in the 1991 Act proved to be unworkable. That is hardly surprising because if one includes provisions in an Act without consultation, one will not know where the problems are. Once legislation is in the public domain people have to work with it, and when people suddenly have an Act thrust upon them, which is what happened in 1991, there is no way that they can go back to fix it—it is a complicated process. In 1991 there were no successful prosecutions of a claim for victimisation under the 1991 legislation and applications for remedies were rare.

The new provisions in the 1996 Act were designed to provide a system of appropriate safeguards that were intended to be read broadly to give effect to the legislative intention of protection against victimisation rather than being narrowly construed on the basis of technicalities. The new provisions altered the standard of proof required to establish victimisation to the civil standard and empowered the commission to award broad range remedies designed to ensure the employee to a position equivalent to that which he or she would be in if the victimisation had not occurred. The bill enabled preference clauses to be inserted in awards with the consent of the parties or in enterprise agreements, and that could only be made with the agreement of parties involved. Such clauses apply only at the point of recruitment and cannot apply to give a prospective employee preference over another prospective employee who has greater merit. The bill explicitly provided that for the purposes of the preference provisions a union member included a person who had applied to become a member. The bill also enabled the holder of a certificate of conscientious objection to be granted status equivalent to a member of the union.

Part 2 of chapter 5 of the 1996 Act carried forward the provisions recognising those organisations that played a major role in New South Wales industrial relations. The Act recognised Unions NSW—known at that time as the Labor Council of New South Wales—as the State peak council of employees, and appropriately so. The bill also empowered the commission to approve an organisation that had a significant number of member employee associations operating primarily in New South Wales as a State peak council of employees. Chapter 7 of the Act dealt with enforcement. It established an effective system for the enforcement of entitlements and obligations under the industrial relations legislation and the industrial instruments. The existing system from 1991 had proved to be largely ineffectual as a result of that legislation structure, as well as the attempts by the Greiner Government to downgrade the essential compliance functions of the Department of Industrial Relations. This once again relates to pattern formation: just as the Greiner Government went to the Industrial Relations Commission, we have the O'Farrell Government going to it today.

The Hon. Shaoquett Moselmane: It is a shame.

The Hon. LYNDA VOLTZ: Yes, it is a shame that the same action is taken by those opposite each time they come into government. They do this each time without community consultation and without including it in pre-election commitments; trying to do it under the cover of not being able to meet their saving commitment problems. Chapter 7 also dealt with breach of awards and other industrial instruments. It provided a civil penalty carrying a maximum fine of $10,000 which could be imposed by the Commission in Court Session or a Local Court constituted by an industrial magistrate. The breach of an award or enterprise agreement under the 1991 legislation was a criminal offense that carried a maximum fine of $5,000. The new provision removed the criminal nature of non-compliance proceedings and the civil standard of proof to facilitate enforcement. It is quite outrageous that the 1991 provisions regarded it as a criminal offence, but that goes to the DNA of Coalition governments; that is what they do. Part 4 of the Act provided for the appointment and powers of inspectors for the purpose of enforcement of the industrial relations legislation and industrial instruments, and the powers were extended so as to enable their use in routine legislation.

Perhaps one of the most important elements of the then Labor Government's reform package was the range of measures designed to promote equality of opportunity in the workplace. The objects of the bill were bolstered to address antidiscrimination and pay equity. The definition of "industrial matters" included an expansive reference to discrimination. The commission was empowered on its own initiative or on application to review and rectify issues concerning pay equity—I will return to pay equity in the librarians' case—and discrimination in industrial instruments. The President of the Industrial Relations Commission at the time had to appoint one or more designated deputy presidents to specialise in matters relating to antidiscrimination and pay equity. The President of the Anti-discrimination Board was given a broad ranging right of appearance in proceedings before the commission involving anti-discrimination matters, and the existing parental leave provisions had been revised to remove the requirement for employee consent for extended paternity leave and adoption leave for males.

More generally, the commission was required to take into account the principles contained in the Anti-Discrimination Act, which included, when dealing with matters relating to employment in the New South Wales public sector, part 9, which relates to promoting equal employment opportunity for designated groups. The legislative intention of the bill was that the anti-discrimination principles would apply across the range of functions excised by the commission whether this related to family leave test cases or unfair contracts litigation. The bill represented a significant change from the 1991 Act and went much further. It went from imposing an obligation merely to take into account anti-discrimination principles to incorporating such principles into the fabric of legislation and functions of the commission. That is a hugely important principle and those on this side of the House hope to hear from the Government on how that will be resolved under the current legislation

Schedule 4 contained several clauses of a saving transitional nature in relation to awards, enterprise agreements and former industrial agreements. All enterprise agreements that had already been registered under the 1991 Act would continue in force until terminated in accordance with the provision in the bill. All enterprise agreements that had been lodged for registration under the 1991 Act and not registered immediately before the repeal of the Act would be dealt with as if lodged for approval under the new legislation. That is how things are sensibly done when one consults with the community. This was an extensive process by the then Labor Government. The overwhelming support for the 1996 legislation was because of the Government's engagement in a consultation process. The Government talked to the people, employees and employer organisations. Copies of the draft bill were sent out for people to look at. Transparent governments listen to the people. Transparent governments get the information out into the public arena to give people the chance to talk about it. But that is not the situation here.

At the time of the introduction of the 1996 bill the Sydney Morning Herald on 3 November carried an article titled "A Victory for Consultation" in which the Executive Director of the Motor Traders Association was reported as saying:
      The proposed new State industrial laws represent the culmination of a process of consultation with stakeholder groups that illustrates how legislation should be developed.
It was a victory for consultation. It was how legislation should be developed. Time and time again the Coalition fails to undertake that process when in government.

The Hon. Shaoquett Moselmane: Shame.

The Hon. LYNDA VOLTZ: It is a shame. He then went on to state:
      Although we acknowledge the majority of its contents were pronounced well before the election that brought the Carr Government to power, importantly the legislation indicates a willingness on the part of Attorney General and Minister for Industrial Relations, Jeff Shaw, QC, to give impartial consideration to the viewpoints of both employers and unions in matters of critical importance to both groups.

It is worthwhile repeating the words "impartial consideration to the viewpoints of both employers and unions in matters of critical importance to both groups" because a Labor Government consults with employers, workers and other stakeholders. But perhaps the difference in this instance is that public sector workers do not have an employer representative, so there is no need to consult because none of the Government's mates from the big end of town are involved in this process. The only people involved in this process are the public sector workers who deliver services on behalf of this Chamber, this Parliament and the people of New South Wales to the people of New South Wales. They are the people who are charged with that role. None of the Government's lobby groups will hit the Government over these matters, so there is no need to consult because this is just about attacking the rights of workers. The Government thinks there is no reason to consult. At that time Jeff Shaw stated:
      The remarks of the Executive Director of the Motor Traders' Association prompt me to point out one argument: that of mandate. Before the election the Labor Party spelt out, point by point, what it intended to do in industrial relations.

That is what the Labor Party did in 1995 prior to the election. He continued:
      It did not hide the agenda, nor did it attempt to. The Labor Party set the agenda and put it out in writing.

The Labor Government did not change its policy. It set out the policy point by point in the bill. It raised the issue during the election campaign. The Labor Party wanted it debated, and debated it in the media and in every other forum that was available. Labor was very candid about what it was doing. The Labor Party was elected on a mandate to introduce industrial relations reform because it had had the debate both before and after the election. It put the bill out there and consulted the community. Therefore it is not surprising that employer groups responded calmly to the New South Wales Government's decision to introduce legislation. The way that the then Labor Government approached that legislation stands in stark contrast to what the Greiner Government did in 1991 and what the O'Farrell Government is doing now. One of the first people to whom the O'Farrell Government gave a job was Greiner. Gosh knows where the O'Farrell Government is getting its ideas from.

The first person the O'Farrell Government appointed was Nick Greiner. We had Nick Greiner's legislation in 1991 featuring no consultation whatsoever. In the opinion of both employers and employees the legislation was legalistic, unworkable and had to be revised. The Greiner Government did not bother to consult an industrial relations expert, so we are now in exactly the same situation as we were in back in 1991: the O'Farrell Government, with its mate Greiner, is introducing new legislation in exactly the same manner. What I am about to say gives us an idea of the DNA makeup of the Coalition, particularly the Liberal Party. The Hon. Jeff Shaw stated, as reported in Hansard:
      Since the 1995 bill came before the House, there has been a Federal election. A new Federal Government has come to power, determined to make radical and far-reaching changes to the industrial relations landscape. I believe these changes will undermine the capacity of the Federal industrial relations system to protect the just and fair entitlements of federally covered workers. The New South Wales Industrial Relations Bill 1996 will be able to fill the lacuna which the new Federal industrial relations legislation will create in Australian industrial relations.
The statements illustrate the extraordinary foresight of the Hon. Jeff Shaw. He knew that WorkChoices would be introduced and that the Howard Government would do exactly what it did, which was introduce WorkChoices. At this stage, the people of New South Wales are getting WorkChoices II in exactly the same way as the 1991 legislation was introduced. The Hon. Jeff Shaw went on to state:
      It is instructive to compare the new Federal Government's headlong rush into its industrial relations legislation with the lengthy and comprehensive consultative processes which preceded the preparation of the New South Wales industrial relations legislation now before this House.
That statement illustrates the essential difference between Labor and the Coalition. It is worth repeating that the difference is the extensive consultation process embarked upon by Labor when introducing industrial relations legislation. The objects of the 1996 legislation are important because the bill required the Industrial Relations Commission to take into account public interest in the exercise of its functions and, inter alia, to have regard to the objects of the legislation. Hence the commission was required in its work to promote workplace reform and improved workplace relations. I am waiting for the Hon. Trevor Khan to finish what he is doing because it is a bit distracting.

The Hon. Trevor Khan: This is how to learn to pour water.

The Hon. LYNDA VOLTZ: There must be a legal trick to it. When the 1996 legislation was being discussed, the Hon. Jeff Shaw pointed out that it was a crucial time for the State's industrial relations system. He stated publicly that, if the Federal Government's industrial relations proposals were enacted, there was likely to be strong interest shown by employers under Federal awards coverage in moving to the State system. He said that the proposals would lead to a Federal award system being reduced to minimum poor conditions while the proposed Australian workplace agreements would provide inadequate protection for workers in such circumstances that it could be argued convincingly that employers would be better off under the State system. He went on to state that the new industrial relations system in 1996 provided employers with security and protection that the Federal Government was seeking to remove from within its jurisdiction.

The 2011 laws that are being introduced by the current Government will mean that, when they are passed, the New South Wales Government will be able to implement as law any policy that it creates in relation to conditions of employment for public sector employees. Public sector workers who provide essential services will not get a pay rise of more than 2.5 per cent a year unless they trade off employee-related cost savings and reforms, and I will not even go there in relation to the Consumer Price Index [CPI]. Employee-related cost savings mean having one rather than two police officers in a patrol car, four rather than five nurses in an operating theatre, and three rather than four weeks holiday pay. The New South Wales Industrial Relations Commission will become a commission with no ability to make independent decisions on public sector wages or conditions. It will be forced to implement government policies. The new laws will undermine the separation of powers and independence between the Government and the commission.

The new bill will remove the role of the Industrial Court of New South Wales to provide a right of review of unfair contracts that are forced on the public sector. The Government has removed the only independent umpire that deals with wages. The bill seeks to retrospectively regulate all public sector proceedings that are currently before the Industrial Relations Commission, including pay claims for police officers, child protection workers, prison officers, health service workers and teachers. The argument I outlined at the commencement of my speech related to issues raised by the Minister in his second reading speech. He outlined in his election commitments the savings that need to be made. He also referred to the blowout in wages in the public sector. John Buchanan from the University of Sydney has examined public sector wages and the basis upon which future wage setting in the New South Wales public sector is occurring. He also examined the arguments advanced by the Government in regard to changes it says it requires.

The Government is saying that New South Wales public sector workers have had a disproportionate wage growth over the past decade. Data released by New South Wales Treasury implied that for some reason there had been this huge wage growth in the public sector and that the community thinks that nurses are paid too much, the police are paid too much, the cleaner that cleans the surgery is paid too much, and the person who drives sick people to the hospital is paid too much. They think that teachers' aides are paid too much. Those in the public somehow think that Hansard is paid too much. They think that Alex down in the cafeteria who makes our coffee for us is paid too much. They think that the guys out the back who look after our beautiful botanic gardens are paid too much.

The Hon. Catherine Cusack: Point of order: The member is making imputations about the motives of members opposite. I utterly reject them and I ask that you direct her to desist and to withdraw those allegations.

The Hon. LYNDA VOLTZ: To the point of order: Specific to the Government's argument is wages blowout in the public sector and that public sector employees are paid too much. I am merely pointing out the workers who get these wages and who the Government thinks is paid too much.

The Hon. Duncan Gay: To the point of order: The contribution of the member is dishonest. She was indicating Government members felt that various people in different areas were paid too much. That is a gross distortion of the facts. The legislation is about entrenching proper performance agreements. Nowhere in this legislation and nowhere in any comments from the Government has anyone said that salary earners in New South Wales are paid too much.

The Hon. LYNDA VOLTZ: Further to the point of order: in his second reading speech the Minister clearly made reference to the wages of the public sector, how they have blown out and how they needed to be reined back in. That can be interpreted only one way: The Government thinks public sector employees are getting too much money.

The Hon. Catherine Cusack: Further to the point of order: That is not correct. The issue the Minister clearly raised was that productivity savings were not being achieved. I utterly reject the allegations made by the Hon. Lynda Voltz. I find them offensive. The member knows that it is against the standing orders to make such imputations and I ask that you direct her to withdraw them.

The Hon. Shaoquett Moselmane: To the point order: The member was making direct references to employees whose wages would be going impacted, particularly public sector workers, which include the attendants, Hansard and others. She was merely listing people who would be impacted by this legislation. She is clearly within the ambit of the bill.

The ASSISTANT-PRESIDENT (Reverend the Hon. Fred Nile): Order! The Hon. Catherine Cusack has said that Government members find the member's remarks offensive. The member has been requested to withdraw her comments.

The Hon. LYNDA VOLTZ: On a point of clarification: Are you saying that I was personally referring to that member? Is that the member's point?

The ASSISTANT-PRESIDENT (Reverend the Hon. Fred Nile): Order! Government members have taken offence that your remarks applied to them.

The Hon. LYNDA VOLTZ: So you want me to withdraw the remarks that members of the Coalition think that people are paid too much? I withdraw those remarks.

The ASSISTANT-PRESIDENT (Reverend the Hon. Fred Nile): Order! Thank you. The member has the call.

The Hon. LYNDA VOLTZ: The data released by the New South Wales Treasury in particular implied that there had been a wages explosion for this group of workers in the public sector. That would be this group of workers like Alex downstairs who makes our coffee for us, the gardeners in the botanic gardens, the people building our roads, the cleaners in the hospital, the cleaners in the schools, our teachers, our teachers' aides, our nurses, our nurses' aides, and our Department of Community Service workers to name a few. Remember what happened under the Greiner Government to our Department of Community Services workers that those opposite think so much about—one-third of them gone. One-third of the Department of Community Services workers were gone under the Greiner Government. That is what they think about our public sector. They got rid of one-third of them. It absolutely devastated the Department of Community Services. The Greiner Government took the heart and soul out of the Department of Community Services. On the basis of the Treasury implication those opposite think that there was a wages explosion in the public sector.

Dr Buchanan investigated the idea that public sector workers were overpaid based on the data. He looked at public school teachers, senior constables, registered nurses, assistants in nursing and personal care attendants, all of whom were at the top of their pay scales. These are jobs the community would consider to be fundamentally important to them and to the provision of State Government services. Dr Buchanan found that New South Wales teachers are the best paid, and I am not embarrassed by that. I am proud of the fact that our teachers—

The Hon. Catherine Cusack: They became the best paid under the Greiner Government. They received a record pay rise under the Greiner Government.

The Hon. LYNDA VOLTZ: The member cannot have it both ways. Apparently the wages blowout happened under the Greiner Government. Maybe the Coalition should have released this legislation earlier.

The Hon. Duncan Gay: Point of order: The tradition of the House dictates that members should address the Chair. No matter how excited they are to have their personal cheer squad in the place, the protocol indicates that the proper way is to address the Chair. The honourable member is not addressing the Chair.

The ASSISTANT-PRESIDENT (Reverend the Hon. Fred Nile): Order! The Hon. Lynda Voltz will address her comments through the Chair.

The Hon. LYNDA VOLTZ: As I said, I am actually proud that our teachers are the best paid teachers in the State, but they earn only 2.6 per cent higher than the average paid to equivalent teachers in other States. It would be hard to argue that teachers do not do a fantastic job. My 10-year-old daughter asked me to mention that she thinks her class teacher, Mr Richards, is very good. My daughter is good on patterns and some other things in maths, so he actually gives up his lunchtime once a week to sit with her to make sure that she is keeping up with the maths. This is what the teachers in our schools do. They go that extra yard. It is not within their conditions and it is not within their entitlements and it is not taken into consideration in their wages, but they believe they have a vocation. We should recognise the contribution that these teachers make over and above the call of duty in terms of educating one of our most precious resources in this State and that is our children.

The education of our children is fundamental to the growth of our economy. Everybody in this Chamber accepts how important education is to growing an economy. Every dollar you put into education gives you three dollars back in terms of portfolios. It improves health, employment, and social and economic outcomes. Across the board, education is the one portfolio area where you can never spend too much money because you get a positive knock-on effect in other portfolio areas. It reduces expenditure on health, police, and the Department of Community Services. It grows our economy and revenue base. It is fundamentally important. Although our teachers are the highest paid, it is only a difference of 2.6 per cent.

Unfortunately, our senior constables do not receive the highest wage in the country. They are the second-highest paid in Australia, but it is only 3.4 per cent higher than the average paid in the other States and Territories. As we can see, there is not a huge difference in wages between the States and Territories. The wages of registered nurses in New South Wales are in the middle, but the spread is limited, with only 1.1 per cent less than the top earnings in the Australian Capital Territory and only 1.4 per cent more than the Australian average. Nurses' wages are spread evenly across the States. The argument of a wage blowout that is based on figures is not valid when we look at the data. It is not true. Our public sector employees' wages are equivalent to the wages of public sector employees around Australia. If this policy had been instituted over the last decade, per annum our public sector employees would have been $7,000 worse off even though they live in a State with a high cost of living.

The Minister said that increases in excess of 2.5 per cent would be required to be funded from employer-related savings. We all know what that means; we have been here before. Maybe they will be available through employer-related savings, maybe not. The Minister did not refer to cases involving pay equity issues such as the librarians' case. The Industrial Relations Commission has the ability to examine the remuneration of groups in certain industries, particularly women, to determine whether they are being underpaid. That is what occurred in the State librarians' case and the commission had the ability to fix that anomaly. That cannot be done under this legislation. Under this legislation the Industrial Relations Commission does not have that ability.

The Minister said that some people have the view that the Government has a bottomless pit of money to cover all the hoped-for pay increases. The data shows no evidence of a wages blowout. Public sector wages in this State are comparative with public sector wages across Australia, with the exception of teachers but we can never spend too much money on teachers. The Minister also said that the Industrial Relations Commission had rejected key aspects of the 2000 wages policy on a number of occasions. Justice Boland does not agree with that statement at all. In his second reading speech the Minister said:
      Under the current framework of the Industrial Relations Act, the Industrial Relations Commission is required to have regard to a range of matters in the exercise of its functions. These include the objects of the Act in section 3, the instruction in section 10 to make awards setting fair and reasonable conditions of employment for employees, the public interest provisions in section 146, and the state of the economy of New South Wales and the likely effect of its decisions on that economy, also in section 146.
I assume the public interest provisions in section 146 and the state of the economy are what we are talking about. The Minister continued:
      That is already in the Act. The commission also applies a set of wage fixing principles that set out the circumstances in which wage increases can be awarded. These are applied when the commission deals with public sector awards, which are not affected by the minimum wage increase set in the general State Wage Case.

      As can be seen, the commission exercises a broad-ranging discretion when it comes to wage fixing. This environment is conducive to submissions that the Government's wages policy should be disregarded or that other considerations are more significant than the wages policy.

Basically, we can disregard sections 10 and 146 of the Act because the Government has ruled them out. Section 10 of chapter 2 Employment, part 1 Awards, division 1 Awards generally, states that the commission may make awards. Under this legislation the commission will not be able to make awards. Section 146 sets out the general functions of the commission. Under this legislation the Government has ruled out the general functions of the commission. The legislation overrules section 10, the commission may make awards, and section 146, the general functions of the commission. That is broad-reaching legislation. The Minister continued:

      The objective is supported and strengthened by subsection (3) of proposed section 146C, which provides that any award or order that is inconsistent with the declared wages policy of the Government will be of no effect. The amendment also includes very specific words to ensure that its intention may not be subverted by reference to section 146—

I have pointed out the role of section 146—

      or any other provisions of the Act. This is found in proposed subsection (7). In order to make it clear to the commission what the amendment requires it to do, the relevant elements of the policy will be declared in the regulations.

We have heard a great deal from the other side about regulations. They say that we should pass the bill because any regulations have to come before the House. The regulations do not have to come before the House. They are tabled and the House decides whether they will become business of the House. If members decide not to allow the regulations to become business of the House we will not be able to debate them. There will be no consultation, no voices heard of public sector concerns about a regulation. If the House so decides, the regulations will not become business of the House and members will be unable to move a disallowance motion in relation to a regulation. That is how regulations are dealt with. Voices will not be heard.

A regulation can come into effect when the House is not sitting. A regulation may be gazetted and be in force when the House is on a winter or summer recess. Two or three months later, the regulation having been in force, a member may see that it has been gazetted and seek to move a disallowance motion. However, before that happens, a motion has to be passed to make it business of the House. The disallowance motion may not come before the House and the views on the regulation are not aired. The regulations will not be transparent. The Government is taking away the Industrial Relations Commission's ability to act as the independent umpire and there is no procedure for the regulations to be debated in the House. That is because a motion has to pass for regulations to become business of the House. If that motion is defeated, no debate will be heard on the regulations. There will be no argument, no ability to put forward a case in relation to the regulations.

Regulations may relate to nurses' night shifts or police rosters. They may be about new technology, such as whiteboards in schools or new equipment in hospitals. They may be about new machinery used by road workers, which changes their working conditions and impacts on their safety in the workplace. Those regulations will be in force for three or four months before this House has the opportunity to move a disallowance motion. Even then, unless it becomes part of business of the House the motion will not be debated. In such cases, there is no transparent process and no-one will have the ability to put forward a case.

We have talked about the way the Hon. Jeff Shaw introduced his 1996 bill, which was legalistic and complex legislation, to address the problems of the 1991 legislation. With the bill before us, there has been no consultation and undue haste. Problems will arise with this legislation that cannot be resolved because there has been no consultation. The problems are not just in the formulation of the legislation. I return to the pay equity case. We do not know what is happening because no consultation is being undertaken on the issue. We do not know how this legislation will operate because again the process will not undergo consultation.

The reality of having regulations does not mean a disallowance motion will be debated in this House. Enabling a member to propose a disallowance motion does not mean it will be debated or that anyone's case will be pressed in this Chamber. It is disingenuous of those on the other side to imply that somehow there is a transparent process. It is just not true. The fundamental concern with this legislation is the lack of consultation in this Chamber. John Buchanan and Jillian Considine from the University of Sydney published a report following a study they conducted. Earlier I referred to the problems of the nursing industry. That industry is a good case in point because of the complex things nurses face. Industrial Relations Commission determinations are important to reflect on nurses' conditions because of their increasing roles—the definition of "roles" as "other health occupations".

The report noted that nurses are performing an increasing number of roles outside the areas for which they are specifically trained; increased skills and responsibilities associated with operating new technologies and teaching others how to use them; and increased levels of accountability and activity associated with maintaining accountability systems, especially record-keeping and data collection practices. The report stated that these problems arise from new approaches to managing public hospitals, underlying retention problems and attracting nurses to the profession. Everyone across the country knows of the problems that all governments have addressed with respect to nurses.

The shiftwork component is important within nurses' conditions. The nursing industry expresses major concern as to how it is handled, as well as career prospects. Nurses detect a somewhat limited recognition of their value within the sector and the community generally with a move towards nursing professionalism and demands for, but limited recognition of, the significance of postgraduate qualifications. Nursing is probably another industry in which the pay equity issue is fundamentally important. I would be interested to hear from the Minister in his reply about how that will be addressed. Nurses also have to deal with patient expectations but, more importantly, they have to deal with significant violence and harassment issues—issues also fundamentally important to nurses' conditions. Nurses seem to agree universally that their pay rates are quite unfair. A senior nurse administrator told the study:
      Nurses didn't necessarily go in there for the money, and so it's not until you're in there and you realise how much you're expected to do, the knowledge level, the emotional, physical, mental and psychological input into the job that you have to put into that job—when you start to see that the pay is disproportionate.
Many nurses noted problems with extras for which they must pay and these include simple things. We all know how expensive it is to park at hospitals. Other extras nurses have to pay for include educational expenses as a result of the professionalism of the industry. Professional development courses are usually undertaken in their own time and at their own expense. Other anomalies include meal allowances and problems with the structure of some penalty rates. All of these conditions fall under this legislation. Although pay was not the main concern that nurses raised, it was important and they all considered it was one of a number of problems they faced.

I mentioned previously the key concern of the changing nature of the work. The nurses believe that while nursing has its rewards, it has some negative offsets due to the shiftwork and limited career paths. Of course, nursing is a 24-hour seven-day-a-week job. Any shiftworker will attest that shiftwork causes major problems in their lives. Many nurses found shiftwork the main deterrent. Governments must deal with that particular issue when considering conditions under this Act. The Industrial Relations Commission will not be able to address those issues because the Government's policy does not want the commission to address them. It will not happen. The Government can make changes by regulation that cannot be debated in this House, and there is no guarantee that they will be debated in this House, but a case cannot be pressed for debate.

There is no way to press a case on how to deal with night shiftwork because it operates from the top down. The system does not operate in an upward flow of information. At the end of the day, once the Government has made the decision there is no recourse whatsoever. That is the essential problem with this bill. What are nurses going to do when there are new machines they are required to use and when there are new budgetary considerations they have to deal with when they are running around doing a range of other things? If they are working on the night shift and they want to address the matter, no mechanism is provided for that eventuality. A nurse at Cammeray hospital said:
      Sometimes [the lack of overtime payments or time off in lieu] is driven politically by hospital administration to meet budgets.

      That goes to the crux of the problem: things are driven politically by administration to meet budgets. Of course, the first thing that goes is the labour force and nurses form the bulk of the labour force—so, positions go. The problem is that this is all being driven by a budgetary process. In respect to the changing nature of the profession a nurse in Taree said: In the 1990s when I started [at the current hospital] there was no joint replacement done at the hospital and that was introduced but there's certainly been no extra staff put on because of that.
The reality across the entire health sector is that science moves us forward with medical outcomes. New medical procedures will always be more complex and require more technical equipment and skill. But as these new developments and their costs increase and place more pressure on the Health budget, there is no complementary nursing staff increase. The issues then remain unresolved. The only way to resolve issues is for the Industrial Relations Commission to examine them. Nurses believe that their responsibility levels are increasing. One nurse at Westmead said:
      We are under pressure to work under the guidelines that say that that amount of money has been given to that kind of patient so that patient has to go home and we're under great pressure to work to that. If the patient stays longer than the guidelines then you have to justify why that is so.
This goes to the heart of changes within the Federal health system, which we know are coming. The New South Wales State Government told the Federal Government that health is not cut and dried. A medical procedure or a patient does not cost a specific amount of money: It is far more complex than that. That is certainly the model. I raised those nurse issues because it is important to look at what nurses do and how they do it. Nurses will not be in a position to press their case under this bill in the way they have previously.

Justice Boland said that the 1996 Industrial Relations Act has been described as a masterpiece of simplicity compared with the debacle that was the 1991 Act and the counterpart legislation in that it provides an unparalleled framework for the conduct of industrial relations that is fair and just. It was drafted following extensive consultation with employers and unions and, unlike its Federal counterpart, was not drafted with an eye to political considerations but rather what was the model best meeting the interests of the industrial parties and ultimately the people of the State. That fundamentally goes to the heart of the objections to this bill. It should involve a consultation process. Coalition governments—the Greiner Government, the Howard Government and now the O'Farrell Government—constantly draft legislation with an eye to political considerations rather than to community needs. If it were about community needs there would have been a consultation process. In 1996 the consultation process is what made the difference to the Act.

Justice Boland went on to say that the Act delivered fair and reasonable wages and employment conditions through the award system, and provided an efficient and very effective system of conciliation and arbitration for resolving industrial disputes. It gave individuals access to remedies for unfair dismissal and appeal rights to public servants in respect of promotion and discipline, access to remedies for unfair contracts and protection for outworkers. It enabled test cases on such matters as pay equity, job security and reasonable hours. It encouraged representative bodies of employers and employees by giving them a principal role in the industrial relations system. Justice Boland pointed to the minimal consultation for the 1996 reconstruction of the Federal system by the Howard Government in contrast to the open and consultative process of the 1996 legislation.

Importantly, Justice Boland went on to state that it should not be assumed that in designing this system Shaw was unmindful of the impact of commission decisions on the economy of the State. That is a fundamentally important point. He strove to set a balance between inevitably competing considerations. His legislation required the tribunal to take into account the public interest in the exercise of its functions and, for that purpose, it must have regard to the state of the economy of New South Wales and the likely effect of its decisions on the economy. That was a fundamental part of the 1996 legislation and it always has been for the Industrial Relations Commission: the removal of delay and cost problems in the building industry; the ushering in of a trouble-free and successful Olympics and other major infrastructure projects; the resolution of extremely serious disputes in major industries such as steel and electricity without any loss of work during the process of resolution; and the resolution of public sector wages and conditions issues.

Justice Boland noted that under section 23 of the New South Wales Industrial Relations Commission Act the application for the provisions for pay equity was introduced by means of a test case, and created an equal remuneration principle which formed the foundations of the pay equity case for State librarians. And here is the crux of the matter and why we see an independent Industrial Relations Commission as so important. I am concerned that the Government does not understand the importance of the legislative process of 1996 and its effect on the women's pay equity case. If the Government thinks there is not a clustering of women in certain jobs within the public service it is just not looking at the figures correctly.

By way of background, in 1919 the basic female wage was established as 54 per cent of the male wage. In 1943 the female rate was lifted, through labour shortages due to the war effort, to 75 per cent of the male rate. In 1969 the first Federal equal pay case introduced the concept of equal pay to be progressively phased in. Notwithstanding, equal pay was not provided where the work in question was essentially or usually performed by women. In the 1972 review of this principle the equal pay for work of equal value principle applied. The application of the principle was somewhat skewed in that it did not address the impact of the highly gender segmented Australian labour market. The introduction of legislation in 1973 supporting equal pay in New South Wales also failed to address the wages gap between traditionally male and female jobs.

Subsequent industrial developments such as the adoption of the structural efficiency principle in 1998 following the national wage case allowed for examination of the relativities between workers under a particular award, amongst other features. At the State level, the introduction of the New South Wales Industrial Relations Act, with its objectives of redressing inequitable pay and employment, is significant. Equal remuneration and other conditions for men and women doing work of equal or comparable value was a minimum objective of the legislation and the Government intended to make submissions, as I have already stated, in the pay equity test case and other areas relating to equality of opportunity. Generally in Australia female professionals tend to be concentrated in different occupations and industries from men and in areas where their roles were undervalued in terms of skills used and in actual remuneration. The male-female pay gap is especially pronounced when discretionary income such as overtime and above-award payments are taken into account. This is where there are huge differences between males and females.

In 1995-96 the State Library was invited to submit 20 job evaluation peg positions to an equity project identified by the then New South Wales Office of the Director of Equal Opportunity in Public Employment. The project compared the responsibilities and salaries of New South Wales Government employed geologists, a male dominated profession, to librarians, a female dominated profession. This was a follow up study to a 1991 project that tested job evaluation methodologies across the public service as part of the structural efficiency framework. The initial study pointed to a discrepancy in job evaluation outcomes for library and related occupations. In 1996 the New South Wales Government launched its first pay equity statement in response to concerns about adverse outcomes for women in the enterprise bargaining process. The statement committed the Government to report annually on the outcomes of initiatives and progress towards pay equity. At the time the only other country with a comparable strategy was Canada.

An issues paper entitled "A woman's worth: pay equity and the undervaluation of women's skills in NSW" was released in 1996 with a call for submissions on the topic. A wide range of individuals and organisations made submissions to the task force, including lobby groups, government agencies, individuals and, of course, the State Library of New South Wales. In 1997 a report was released by the Government entitled "Pay equity and the undervaluation of women's skills in NSW" under the auspices of the New South Wales Pay Equity Taskforce. This report was issued in response to submissions received to a-women's-worth issues paper. The ministerial reference by the then Attorney General, Jeff Shaw, established the pay equity inquiry towards the end of 1997 and was highly significant for advocates of pay equity in Australia.

The pay equity inquiry was a review conducted by the New South Wales Industrial Relations Commission in 1997-98. The inquiry examined the undervaluation of women's work in New South Wales. A comparison of librarians and geoscientists was included as a case study in the inquiry because, as I have previously said, librarians were predominantly female and geoscientists mainly male. The inquiry recommended that the equal remuneration principle be established and that the value of librarian work should be reviewed. The inquiry headed by the Hon. Justice Glynn of the New South Wales Industrial Relations Commission sought and received evidence from professional bodies such as the Australian Library and Information Association, the New South Wales State Librarian, academics, State Library of New South Wales staff representatives, lobby groups such as the National Pay Equity Coalition, and trade union officials.

Copious evidence about the role of librarians, the nature of the modern library and information industry, especially in relation to the State Library of New South Wales and historical background on industry changes, especially those pertaining to New South Wales, was presented as evidence. Ten librarians, including those at the State Library of New South Wales, were characterised as: female, 86 per cent of the workforce at the time; high-qualified; unionised; engaged in a work environment with low staff turnover; and, employed under industrial instruments that tended to maintenance of the status quo. In historical evidence given to the inquiry the history of award movements—

The Hon. Catherine Cusack: It sounds just like Lee talking.

The Hon. LYNDA VOLTZ: I am surprised at the interjection by the Hon. Catherine Cusack. I thought she would be interested in the State librarians' case. But I will keep going. In historical evidence given to the inquiry the history of award movements for librarians and related professions was examined and award and job evaluation information was extensively analysed. Other evidence focused on sociological and industrial studies of the library profession, such as the Encel, Bullard and Cass monograph.

The Hon. Catherine Cusack: Point of order: Mr Assistant-Speaker, the Hon. Lynda Voltz's mumbling is such that I cannot understand what she is saying. Can you direct the member to speak in a way that is discernible to all members in the House?

The ASSISTANT-PRESIDENT (Reverend the Hon. Fred Nile): Order! I ask the Hon. Lynda Voltz to speak louder so Hansard can hear her.

The Hon. LYNDA VOLTZ: I will certainly try. The history of the State Library of New South Wales is a key example in explaining some of the historical factors leading to the undervaluation of female librarians. The dominance of men in senior library positions, both locally and generally in Australia until the mid 1980s, and the under-recognition of the professional nature of the work, contributed to the inequality in remuneration faced by women.

The principal outcomes of the Crown librarians, library technicians and archivists interim award were as follows. The historical undervaluation of the professions on a gender basis was recognised. All occupational groups were covered under the one award across the New South Wales public sector, with librarians and archivists paid under the one scale, library technicians and library assistants paid under an overlapping scale, and librarians and archivists having a separate classification structure. The work value of librarians, library technicians and archivists has been recognised as significantly increasing over the past decade or so. That increase in work value had not been taken into account in fixing those groups' wages. Librarians and archivists fit comfortably into the group of occupations historically regarded as the public service professions, including legal officers, engineers, teachers, scientific officers, psychologists and professional officers. Mr Assistant-President, it might be appropriate if one of the attendants could get a cloth and clean the water that has been spilt on the table.

In summary, the interim award provided for salary increases of 1 per cent to 26 per cent, depending on the step or grade in the classification or grade; the retention of separate classifications within the one award; and qualifications recognised by the Australian Library and Information Association [ALIA] as the appropriate qualifications for appointment to librarian and library technician positions, together with the employer's capacity to recognise other qualifications and experience equivalent to qualifications recognised by the Australian Library and Information Association.

The Hon. Duncan Gay: Don't you love the Labor party—ordering people around?

The Hon. LYNDA VOLTZ: It is very difficult to continue my contribution—given members on the other side have made complaints—when I am constantly interrupted by the Deputy Leader of the Government, who is in no way interested in pay equity for librarians and one of the most significant State cases in the Industrial Relations Commission for public sector workers on behalf of women. I know the Government is not interested in women; the Government's ministry reflects how uninterested it is in women. I will conclude my remarks because I know that some of my colleagues will probably also draw attention to that case.

Dr JOHN KAYE [2.13 p.m.]: With great pride in my membership of a union, with great pride in the working people of New South Wales, with great pride in the trade union movement and with great pride in the people of New South Wales, I firmly oppose the Industrial Relations Amendment (Public Sector Conditions of Employment) Bill 2011. This bill is a wage freezer. It is an attempt to undermine the quality of industrial relations in New South Wales and it is an attempt to undermine the freedom of New South Wales. It is an attack on the democracy of New South Wales and it should never have seen the light of day.

This wage-freezer legislation is simply an attempt to balance the budget of this State off the backs of public sector workers. It shafts public sector workers, it will destroy the integrity of the public sector, it will undermine the industrial relations commission and it will strike a savage blow to the entire industrial relations system. It is an attempt to destroy the union movement and unions in New South Wales. This is an attack on the public sector, pure and simple. It is designed and executed by people who have no sympathy for the idea of a public sector because they have no sympathy for those people who rely on public sector services.

This legislation is an attack on the Industrial Relations Commission for and on behalf of the bosses, who, even with a court that has been more than even-handed in many cases in its balance towards employers, think they can get a better deal. This is old-fashioned class warfare, waged to appease an ideological minority, an ideological stream that runs through the Coalition, and to simultaneously fatten up the profits of those who fund and support the Coalition by cutting their taxes and charges. Worse, this is an attack on the trade union movement and therefore it is an attack on the democracy in which we live. It is WorkChoices New South Wales.

The Hon. Shaoquett Moselmane: Worst choices.

Dr JOHN KAYE: Worst choices New South Wales. In fact, as was observed yesterday, it does not even have the element of choices in it—it is WorkNoChoices New South Wales. It is an attack on the whole idea that people can collectively bargain—that they can get together and do that which is best for the common good. It is an ideological statement of individualism—rampant individualism—wrought at the expense of those who can least afford to lose public sector services.

The ASSISTANT-PRESIDENT (Reverend the Hon. Fred Nile): I welcome to the public gallery TAFE teachers from Strathfield, Inverell and Tamworth.

Dr JOHN KAYE: I take this opportunity to welcome TAFE teachers from Strathfield, Inverell and Tamworth. I point out to those wonderful TAFE teachers, who are representatives of TAFE teachers around New South Wales, that they are all in Coalition-held seats. I make it absolutely clear that I am not blaming them for that. I do not know how they voted—that is their choice and they should keep it to themselves. But there are Coalition members, many of whom are on tight margins, whose Government is doing everything it can to alienate public sector workers—and not just public sector workers in those marginal seats but also the people who depend on the good work, the dedication and the commitment of public sector workers. The basis of this wage-freezer legislation is summed up in the long title of the bill:
      An Act to amend the Industrial Relations Commission Act 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions of employment; and for related purposes.
This legislation gives to the Minister for Finance and Services, as the Minister responsible for industrial relations, the capacity to introduce a regulation that gives effect to certain aspects of government policy. I point out that it is not the policy itself; it is an aspect of the policy. I will come back to that point later because it is absolutely crucial to some of the propaganda around this legislation. It is what the policy refers to, not the substance of the policy, that can be declared by the regulations to be an aspect of government policy that is the Industrial Relations Commission must give effect to.

There are two key aspects: first, the requirement. The requirement goes to the entire Industrial Relations Commission, unless it happens to be sitting in court session—to all sittings of the Industrial Relations Commission, including the Full Bench on appeal. The second aspect is that it specifically targets public sector workers. Although a few non-public sector workers are currently under the New South Wales system, the legislation singles out and discriminates against public sector workers. It makes it absolutely clear that a gun is being held to the head of public sector workers. It forces the Industrial Relations Commission to surrender its independence.

We remained committed to the idea that the legislation will not go through, that sooner or later common sense will prevail on the crossbenches, of which Reverend the Hon. Fred Nile is a member. I am referring to the conservative crossbenchers. Of course, The Greens will vote against the legislation. Unless sense is seen, this bill will be passed. The legislation enables the Minister to introduce a regulation that implements a particular aspect of the policy. The policy can be hidden on a website or it could be not on a website at all. The policy can be well and truly hidden from public view, but one aspect of it—perhaps the wages aspect—

The Hon. Catherine Cusack: It's in the regulation. Read the regulation.

Dr JOHN KAYE: I acknowledge the interjection of the Hon. Catherine Cusack. It is not in the regulation, which specifically refers to an aspect of Government policy. I suggest that the member find the policy. I looked for it but I could not find it. Perhaps my internet skills are not as good as those of the Hon. Catherine Cusack, and I am prepared to accept that the policy is there. But as far as I am concerned it is not obvious; it is not in the regulation, which declares an aspect that is binding on the Industrial Relations Commission. Effectively, this will deny the public sector workforce access to an independent umpire to hear a dispute. When there is an industrial dispute between a public sector union—in the case of the honoured guests in the gallery, the Teachers Federation, or it may be the Nurses Association or the Public Service Association—and the employer, which is the New South Wales Government or a government agency, the workers will no longer have the right to have the dispute arbitrated by an independent umpire.

The unions and workers will no longer have the right to say, "We want to go before an independent body that is not beholden to, ordered about or instructed by the Government but one that responds to the commonly accepted principles of industrial relations relating to wage fairness or a living wage. Those principles have served the country and the State extremely well for 100 years. No longer will public sector workers have the ability to put evidence and know that that evidence will be heard fairly and freely by judicial officers who can make a decision based on the evidence presented to them. That will no longer happen because the people before whom the unions and the representatives of the public sector workforce will appear from now on will no longer be independent if this legislation is passed.

The Industrial Relations Commission is being transformed from being the independent umpire to being the Government's puppet, with the strings being pulled via regulation. It is not even a direct string; it is a regulation that identifies part of a policy, which may be hidden somewhere. It denies the public sector workforce the fundamental right of having an independent umpire hear a dispute. That fundamental right to access an independent arbitrator has been available to all collective workforces in this country and this State since 1926. The commission can, first, make a final determination—the commission's statement will stand; it is short of an appeal to a superior jurisdiction—and, secondly and most importantly, the commission is independent of every party.

Mr Assistant-President, imagine if your party was in dispute with the Government and you decided to have the matter arbitrated. You then went before an arbitrator—you accepted the arbitrator as an independent umpire—who makes a final determination, and you will abide by the decision. But lo and behold—you discover that the Government, whose agency you are in dispute with, has issued an instruction to the independent umpire that it must be mindful of one aspect or many aspects of the government policy. That would be completely and totally unfair. It would be outrageous to deny your basic right to natural justice. It would offend your keenly developed sense of justice and what is right and what is wrong. You would not accept the decision of a commission, tribunal or body that is being instructed by the other side on what it can and cannot do. You would see that correctly as trampling on your rights. But that is precisely what this legislation will do to the New South Wales public sector workforce.

When this legislation is passed by the Parliament some 380,000 public sector workers will experience the scenario I outlined. The legislation will impact on a crucial aspect of their lives—their remuneration, the capacity to pay mortgages and to pay for their children's food, clothing, housing, holidays and everything that enables them to live a decent life. That fundamental capacity will no longer be fairly arbitrated; instead, it will be arbitrated by a judge who is no longer independent. It will be arbitrated by an organisation that is more or less a Government lap dog under this legislation. This legislation was not discussed during the election campaign or with the trade union movement before it was introduced. We did not see this legislation until it suddenly appeared and we started to debate it.

The combination of access to a tribunal that can make a final decision and the independence of that tribunal from each party is at the heart of industrial justice which has served this State and the nation well since 1926. It is the fundamental principle of how we conduct industrial relations. It has meant that society is wealthier. It has contributed to the success of society. It is one of the key legs on which our cohesive society, with its economic and social success and its cultural vibrancy, has rested. Yet that fundamental leg will be kicked out from underneath our economic, cultural and social wellbeing. When that happens to society it is at risk of destabilisation. The Government risks destabilising key ingredients in our society that make it more civilised, successful, wealthy, happy, healthy, educated, safe, mobile and intelligent. With this legislation we run the risk of inflicting massive damage on society, from which it will take many years to recover.

Those two ingredients—the ability to make a final determination and the independence of the body making the final determination—are fundamental to our system of justice and give effect to our system of industrial law and order. It creates a set of relationships between the trade union movement, the employers—in this case the Government—members of trade unions, public sector workers and the community they serve. It gives effect to a relationship and to a sense of innate justice. It is successful precisely because of its independence and because when the Teachers Association; the Public Service Association, the Nurses Association, the Fire Brigade Employees Union or any other public sector union appears before that court it knows it will get a fair hearing. That does not mean that we will always like the determination.

I will refer shortly to a case in which I think the industrial umpire got it badly wrong. There are people in the gallery who already know the case to which I am referring. However, the process was at least independent. Whatever went wrong in that case will become a systemic problem in our industrial relations system. The precise catastrophe that befell TAFE teachers, the misfortune and the unfairness that resulted from the poor evidence presented to the commission, will be sewn into our system. Every worker in the public sector, all 380,000 across New South Wales, will be fronting up to an industrial relations system that will almost guarantee that that error will be replicated. This is simply not good enough.

This legislation removes the balance that occurs at the intersection between the interests of the employers and the rights of the workers. It removes the balance and the fairness that is by and large a characteristic of the system. It will eliminate the independence and determination capacities of the Industrial Relations Commission that have delivered to the people of New South Wales and to the public sector workforce fair pay for the work they do. It is important to acknowledge that no system of justice is perfect and any system will get it wrong from time to time. However, this system has ensured that workers get fair compensation for the work they do and by and large it has delivered a liveable wage.

At times I have been narked with the commission, but never once have The Greens sought to undermine it. Never once have we said that we should remove its independence because we do not like what it does. That is precisely what the O'Farrell-Stoner Government is doing. It is precisely what the Liberal Party and The Nationals—the party that represents rural and regional New South Wales—are about to do. They are trying to entrap the Shooters and Fishers Party and the Christian Democratic Party in their web. They are clearly telling the public sector workforce that they will remove that right and ensure a very negative result. Every time they appear before the court they will be shafted and sacrificed on the altar of cutting taxes and balancing the budget.

Members opposite are wedded to the absurd, ridiculous neoliberal proposition that we should be balancing the budget and cutting taxes at the same time. Anyone with logic that goes beyond that which is demonstrated in Ian Plimer's book Heaven and Earth would understand immediately that if the Government cuts taxes and simultaneously has a fetish about the budget bottom line, net debt and the neoliberal assumptions of maintaining absolute rigid fiscal discipline year in and year out, there can be only one result; that is, a shrinkage of the public sector, a diminution in the quality of the employment conditions and remuneration of employees within the public sector and consequently a diminution in the quality, quantity, reach and access to the important services we provide to our community.

This legislation comprehensively undermines those benefits by removing the independence of the umpire; it comprehensively undermines the benefits of a free and active public sector; it comprehensively undermines the benefits of a society in which a strong public sector is able to deliver for it is community, and particularly for those who cannot afford competing private sector services. However, most importantly, it undermines the sense of wage justice that a group of people engaging in collective bargaining will be able to achieve that has previously been achieved by access to a fair and independent umpire who can make principled decisions. I am yet to meet a politician who does not talk about principled outcomes and who would say, "No, we are not principled." This legislation will remove that independence from the Industrial Relations Commission. By doing so, it will remove the justice and the effect of collective bargaining in the public sector. Previously in the debate when members made such claims there were numerous interjections. Members are probably so tired that they cannot be bothered, so I will respond to the interjections that did not occur.

The only result of collective bargaining without an independent umpire is industrial anarchy. Without access to an independent umpire to get a fair hearing, what recourse do workers have? The only power left to those individuals is industrial action. Removing access to an independent umpire will drive the public sector trade union movement to take industrial action; it will have no other choice. I and my party will stand by them, because there will be no excuse for them not taking that action. There will be no way they can appeal if they believe they have been unfairly treated because if this Parliament passes this legislation it will remove workers rights to independent redress. They will no longer have the right to appear before a commission and to have their case heard fairly.

Not all public sector workers have the right to withdraw or to modify the delivery of their labour. The mob opposite introduced essential services legislation when it was in government. I should not refer to that "mob" because it is rude, and I do not wish to be rude—at least not yet. That legislation provided that people working in the transport, water and electricity sectors had no recourse to industrial action without inviting savage penalties against them, their union officials and their union. The legislation even provided for a union to be deregistered if its members dared to take industrial action. Mr Deputy-President, I draw your attention to fact that there is no Minister at the table.

The Hon. Melinda Pavey: We are here.

Dr JOHN KAYE: Is the Hon. Melinda Pavey now a Parliamentary Secretary?

The Hon. Melinda Pavey: Yes.

Dr JOHN KAYE: That is well deserved. The Hon. Catherine Cusack should also be made a Parliamentary Secretary. There should be more Nationals Parliamentary Secretaries because they understand the impact that this legislation will have on their electors and communities in rural and regional New South Wales. Employees in the transport, water and electricity sectors will have no recourse even to industrial action. They will be left 100 per cent, nakedly at the mercy of government policy. They will be left without any recourse—no industrial recourse and no recourse—to an independent arbitrator. The only recourse they will have is to an arbitrator who has a series of strings that go directly via the regulation to the Minister for Finance and Services.

It means that those individuals are vulnerable to a government that seeks to balance its budget off the backs of those who take on some of the most arduous, difficult and dangerous tasks in our community. It means they are vulnerable to a government that says, "We are adopting a neoliberal policy approach to our budget with a neoliberal budget balance fetish." Even though these people serve in dangerous and by definition essential services, they will have no recourse. The very act of signing up to an essential service will leave them disarmed industrially. They will be left to the mercy of inescapable government policy which can be quite draconian.

The Hon. Dr Peter Phelps: Again with the dragons.

Dr JOHN KAYE: I will respond later to the interjection of the Hon. Dr Peter Phelps. In these cases the Industrial Relations Commission will not be able to decide on matters of fairness, on matters of a liveable wage or other principles—principles that have informed our industrial system for 100 years, that have evolved strongly since 1926, and that have served our society well. Those individuals will be left without recourse to industrial action, without severe penalties and without an independent umpire. They will be totally at the mercy of the Government and totally at the mercy of those in Treasury who cannot see beyond the spreadsheet in front of them—and I apologise to those who like spreadsheets. That spreadsheet does not have humans or communities in it; all it has is dollars. When Treasury officials see red at the bottom they will cut savagely into those who are most vulnerable.

The Hon. Walt Secord: To the bone.

Dr JOHN KAYE: As the Hon. Walt Secord said, they will be cut to the bone and left vulnerable. Not only is that totally unfair; it means also that it will be extremely difficult to recruit workers into those industries. Some people in the electricity sector might see that as a good thing and say, "If you cannot recruit, outsource it or sell it to us, or privatise it—a neat match between the neoliberal agenda for industrial relations, the budget and privatisation. The three ugly siblings work together in a way that undermines the quality of our society and the quality of our democracy. In the case of essential service workers and all workers in the public sector in New South Wales, we are seeing a massive power imbalance where employers get to call the shots in the Industrial Relations Commission and in the workplace. That is not how it works in a civilised and just society in New South Wales, and we should not do it. It undermines employment in the public sector and the capacity of the public sector to recruit new, enthusiastic and engaged workers.

I urge all members to ask themselves three questions. Firstly, is this good policy? The answer clearly is no: this is not good policy. This policy, which is unfair, will undermine the justice of individuals. Secondly, is this sensibly in the interests of a society that relies on quality public services? The answer is no: it is not in the interests of a society that is connected to its community and that has provided quality public services. Thirdly, the real clincher is: Is this legislation anything other than the handiwork of neoliberal ideology?

The Hon. Cate Faehrmann: Absolutely yes.

Dr JOHN KAYE: I guess the answer is yes—the Hon. Cate Faehrmann made a good point. That was a trick question and a good one to ask in order to ensure that members were still awake. I did that deliberately as there are teachers in the audience. Employees other than those who work in emergency services—for example, those who work in health, education, aspects of transport and the Department of Community Services—are also denied the independent umpire. Their only recourse is to go to industrial action "when or before" the industrial umpire finds against them. "When or before" now makes no difference. This legislation creates predictability in the umpire. It undermines the independence of the umpire to such an extent that one would not be able to place a bet on the outcome—and I know that you, Mr Assistant-President, would not do so and nor would I—because the outcome would already be writ.

Government policy would state, "We will keep our public sector workers below 2.5 per cent unless they can trade off their workplace conditions or the quality of the services that they deliver." What choice would they have other than to say, "We have only one weapon or one tool in our armoury to address this problem, and that is industrial action"? If we are silly enough to pass this legislation—if we make the mistake of letting this legislation go through—what will we then say when there is an increase in industrial action in the public sector?

The Hon. Walt Secord: Tell us.

Dr JOHN KAYE: I will. I thank the Hon. Walt Secord for his interest. This is about industrial justice. This is what will happen when we take away from a workforce the right to an independent umpire. This is what will happen when insidiously we say, "We will use you as cannon fodder in our illiterate economic policy that clearly states we will balance the budget and cut taxes, and we will do so off the backs of public sector workers."

I will now address a matter that has been raised in this Chamber for the past 2½ years that relates to statements The Greens made in respect to decisions taken by the Industrial Relations Commission in determining workplace conditions for TAFE teachers. When I introduced motions in this House, some of which have been agreed to, I made it extremely clear that that was a mistake not just for TAFE teachers and students but also for society. That "mistake", which will be writ for many years to come, has been compounded by some utterly absurd policies of outsourcing vocational education and training funding, and slashing the requirements for teacher education in the TAFE sector.

When The Greens criticised the decision taken by the Industrial Relations Commission we made it clear that we thought the umpires had got it wrong and that they had been badly misled by the evidence given to them by the then Department of Education and Training. We made it clear that we were not seeking to undermine the independence of the umpire, nor were we criticising him or her. We were saying that this outcome for which Government members, when in opposition, voted for should be fixed. When I look across the Chamber at Government members, who were once on the opposition side of the Chamber and with whom I worked on important issues, I realise that I hardly know them. I do not understand where their commitment to provide fair and decent wages to the workforce has gone. Similarly, when I look at the opposition side of the Chamber I say, "After 16 long years it is good to see you again."

The Hon. Helen Westwood: Some of us were always there.

Dr JOHN KAYE: I acknowledge the interjection, and I totally agree: some of you were very much there. It is still good to see you, though. What we said very clearly was not that we should undermine the Industrial Relations Commission but that the Government should, legally and in a principled way, abandon some of the more punitive aspects of that determination. The Government should provide to TAFE teachers a better workplace, a more endowed workplace, a workplace with more leave and more of the things that were being taken away from them. It was entirely within the gift of the former Government—as, I might say, it is entirely within the gift of this Government—to right that wrong, without undermining the independence of the umpire and without undermining the principles of the independence of the umpire. That did not happen. But it must be recognised, as I said before, that all jurisdictions make errors. That is why we have appeals; that is why we have processes.

One of the reasons why we do not execute people is that we understand that errors occur. One major error in the Industrial Relations Commission—an error that we will try to get this Parliament once again to focus on and fix—does not kill off the entire system. As I said before, under this legislation we are using that error as a model, and that model will be imposed on every single workforce across New South Wales. Rather than going for the hard work of fixing that error, we are going for the politically expedient, easy work of replicating it. Members will recall that when I commenced my contribution I read the long title of the bill. I will do so again, because I want to highlight one aspect of it. The long title of the bill reads:
      An Act to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions of employment; and for related purposes.
Under proposed section 146C of the legislation those government policies are to be declared by a regulation. So the proposal in proposed section 146C is that there will be a regulation that will identify what aspect of government policy the Industrial Relations Commission must follow. I emphasise that the bill does not state that the commission is required to "be mindful of" that aspect of government policy. One might argue that the commission should be mindful of things, but that is another matter. The legislation states that the Industrial Relations Commission must follow the identified aspect of government policy. Since we have been embroiled in what I can only describe as a dispute, on a number of occasions the Government has argued, "There are no problems with this. This doesn't rob the Industrial Relations Commission of its independence." It does not rob the Industrial Relations Commission of its independence, because this Chamber can disallow a regulation. I want members to think for a minute where the two key logical fallacies are in the Government's statement.

Mr David Shoebridge: At least two.

Dr JOHN KAYE: There are at least two. I am totally open to there being more. However, I am just an engineer, not a lawyer, and there are a number of lawyers in this Chamber who will guide us on this. My view is that there are at least two key logical flaws in that statement.

Mr David Shoebridge: You are meant to sledge them, not me.

Dr JOHN KAYE: Sorry, I did not get the memo. There are two key flaws in the Government's statement. First, even if it were true that this House would disallow those regulations, the fact that we do not disallow those regulations means that the Industrial Relations Commission is now beholden to a combination of Parliament and government. The commission is still not independent; it is just not independent of Parliament plus government, rather than not being independent of government. It does not really matter which organ of our society a body is not independent of—once a body is not independent, it is not independent. That robbing of the commission's independence is a key aspect.

The second logical flaw in the Government's statement relates to the word "can" in the phrase, "… this Parliament can disallow a regulation". Mr Deputy-President, as a person who campaigned hard and somewhat successfully during the last election campaign, you would be aware of the political dynamics of this Chamber currently. You would be keenly aware of the fact that the current members of this House who, as a matter of instinct, would respond to the needs of working people do not form a majority in this House.

The Hon. Cate Faehrmann: Not any more.

Dr JOHN KAYE: Not any more; indeed, they have not for some time, sadly. I give my commitment to do everything I can to make sure that this does not persist in 3½ years time. In a moment I will refer to the Minister's second reading speech and to the Hon. Robert Borsak's contribution to the second reading debate and I will again highlight this point. But what this clearly states is that fundamentally the Government is likely to be able to get any regulation through.

Mr David Shoebridge: It's a blank cheque.

Dr JOHN KAYE: Even if it is not true in this Parliament, and even if my arithmetic is wrong—even if I cannot add up and I have the numbers wrong—what about another Parliament? As you know, Mr Deputy-President, and as we have remarked to each other on many occasions, we write laws that live in perpetuity until they are repealed. We write laws that ought to be robust against any political combination here. Handing over to any upper House Chamber the ability to interfere or not interfere, or to passively fail to interfere, in the determinations of the Industrial Relations Commission would be a grave mistake. It would be a mistake from which we may never recover.

The legislation still leaves the Industrial Relations Commission as the puppet of both the Government and the Parliament, rather than as an independent arbitrator. Having the commission as a puppet means that all the matters to which I alluded before remain a matter of grave concern and they are profound reasons for rejecting this legislation. In my view there are approximately four key reasons why we should object to this legislation. There are four heads of argument against it. The first is the damage the legislation will do to our system of industrial relations. The second is the damage it will do to the future of our public enterprises, our public sector, and to the services the public sector delivers. Third, the legislation is an attack on the standard of living of public sector workers; indeed, it is an attack on the standard of living of all people in New South Wales and all people in Australia. Fourth, this is a highly undemocratic piece of legislation. It was not part of the election platform of the O'Farrell-Stoner Liberal-Nationals Coalition that went to the last election.

The Hon. Cate Faehrmann: It was in the bottom drawer.

Dr JOHN KAYE: It was in the bottom drawer—what is increasingly appearing to be an extremely cramped bottom drawer. It was full of Nick Greiner. We have continually heard, "We're not Greiner." How many times have we heard from the Minister for Education, Mr. Adrian Piccoli, "I'm not Terry Metherell"? Yet, exactly the same things that Terry Metherell did to the TAFE teaching profession and the school teaching profession, the public sector education profession, can now be cooked up under this legislation. This legislation is Terry Metherell reborn. This is legislation that comes right out of that bottom drawer. This is legislation that is deeply undemocratic. We did not know about it. I do not know of anybody speaking about this legislation before the election. I will speak about that in more detail later.

I will now identify and then outline those four heads of concern. The first is the damage the legislation does to the Industrial Relations Commission itself. The basic principle—to which we have already alluded but which we should now drill down into and achieve a greater understanding of—is the principle of a fair and independent umpire. That is a principle of fairness and justice. It is a moral principle. It is a principle that stands alongside goodness in our society. It is a principle that stands alongside "Do no harm". It is a principle that stands beside all those things that are our traditions, our understandings, and that our moral calculus gives us. That basic tradition is one of fairness and independence in an umpire. But that is not purely a moral principle; it is also a functional principle. It delivers great good in its outcome and great success to our society in its application. A well-functioning industrial relations system has clearly been associated by international evidence with a successful, innovative and engaged workforce, the very ingredients that are needed to create a wealthy and successful society.

I offer this argument now not as a sole argument and not as one that will necessarily entrap me—I am already trapped into opposing this legislation—but in the interests of throwing out as broad a range of arguments as I can while staying completely valid: I offer the issue of what a functional industrial relations system provides to a society. The evidence comes largely from the work of Ross Eisenbrey at the Economic Policy Institute in his document "Strong Unions, Strong Productivity". Dr Eisenbrey identifies that unionisation in the United States has declined—I must say, parenthetically, as a result of a deliberate act of industrial suicide, in many senses, by United States policymakers. It is the self-same act of industrial suicide that we are trying to commit here in New South Wales and that we tried to commit with the WorkChoices legislation.

Industrial unionisation has declined in the United States since the late 1970s when 27 per cent of workers were covered by union contracts. Today it has fallen by more than half, to about 12 per cent. By contrast, most of the major continental European countries have maintained strong unions and strong union density. Most employees in these countries are covered by collective bargaining contracts, ranging from a remarkably low, by European standards, 68 per cent in Germany to over 90 per cent in Belgium, France and Sweden.

The evidence from Europe does not support the myth that a strongly unionised, collectively bargaining, independently arbitrated workforce diminishes productivity. On the contrary, there is quite strong evidence that shows the counterfactual. Output per head worked is high in The Netherlands, France and Belgium, where more than 80 per cent of employees have union contracts, compared with the United States where only 12 per cent have unionisation. In fact, in the United States the drop in union membership has not corresponded with productivity growth. A broad study of the economic literature by Doucouliagos and Laroche in 2003 found a positive association of unions on productivity is established for the United States in general and for United States manufacturing in particular. That evidence says a functioning, healthy, robust industrial relations system where members engage with it through their unions and there is strong union coverage produces a more productive workforce.

In the case of the public sector, a heavily unionised public sector collectively bargaining before an independent umpire would indeed produce more bang for the buck—more public sector services than we would get if we destroyed unions. Make no mistake: this legislation, like the Wisconsin legislation and legislation in the United Kingdom, is about undermining, weakening and eventually destroying the trade union movement. This legislation will destroy those benefits by turning the Industrial Relations Commission into a puppet that will no longer deliver to union members the benefits of collective bargaining. It will be a puppet that will send a strong message to de-unionise. That is what it is meant to do. I have no doubt that the trade unions and professional unions in New South Wales will do everything to make sure that that does not become reality. Nevertheless, that is what it is designed to do. This legislation points us in a direction that will undermine our productivity.

Productivity is not everything, although it is important, and there are far greater things than productivity. They are the things we should also consider. What this legislation does not do is implement an economic policy, but inevitably it will be used as a tool to balance the budget and reduce the budget surplus. A policy that worked for economic strength would be one that strengthened trade unions and our public sector services. It would be a policy that focused on engaging each and every public sector worker in their workplace and in industrial decisions around their workplace. That is not what this legislation does. This bill takes the opposite approach. It does not see beyond the bottom line of the budget; it does not see beyond the net debt, beyond recurrent operating surpluses and deficits. It does not see into the heart of the economy.

As the United States has demonstrated time and again, you can balance your budgets as much as you like but if you do not get the economics right, with a strong workforce that is unionised and can engage and innovate and feel secure in its engagement and innovation, you can forget about balancing the budget because you will have nothing in the budget to balance. If you want to put money into the budget, build wealth. If you want to build wealth you need strong public services and a strong public sector. If you want to have a strong public sector the only thing you can do is make sure it is unionised and well remunerated. That is not what this legislation does.

For 100 years we have had the evolving principles of an independent arbitrator. This legislation takes a radical departure from that 100-year principle that has served government well and kept Australia and New South Wales wealthy. The radical nature of this policy alone should concern and worry members of the Opposition. I listened with great interest as the Hon. Natasha Maclaren-Jones made her first speech, and a very interesting speech it was. I congratulate her. One of the things she said very strongly was that she was a monarchist, a firm supporter of the monarchy. Members can probably guess that I am not a firm supporter of the monarchy.

The Hon. Marie Ficarra: What a shame.

Dr JOHN KAYE: It is a shame. I know that the Hon. Marie Ficarra would find it a surprise and a shame, but there you go. I find it difficult to please everybody in life. The Hon. Natasha Maclaren-Jones made it very clear in her speech that she was a traditionalist. I will take the support of monarchy as an example.

The Hon. Cate Faehrmann: And Thatcher.

Dr JOHN KAYE: And Thatcher. Actually that does not help my argument, but thanks anyway. We will get to Thatcher in a minute. There is time yet. The night is yet young and there is time for Margaret Thatcher, as they say. To return to the point at hand, the Hon. Natasha Maclaren-Jones made a strong statement of her commitment to monarchy and I am trying to evince here the logical connections between her support for monarchy and the fact that I believe she should vote against this legislation—is it up to her how she votes, of course. In doing so I want to issue an apology to Walt Secord senior because I might say some things about the monarchy that the honourable member's father, who I presume is Walt Secord senior—

The Hon. Walt Secord: Yes.

Dr JOHN KAYE: I mean absolutely no disrespect to him, because I understand that there are many people in our community, along with the Hon. Natasha Maclaren-Jones—and I wonder how much more they have in common—who feel very seriously about the monarchy. I think they are wrong, but I mean those people no disrespect. Before somebody takes a point of order on me, I am going to outline four features of the monarchy and compare them with four features of the industrial relations legislation presently before us, and then draw a line between them. I invite the Hon. Natasha Maclaren-Jones to respond, when her time comes, and show me where I am wrong. The monarchy serves no real purpose, it creates no real justice, it does not in any way help the economy, and it is an outdated symbol of the past.

Mr David Shoebridge: But the Coalition loves it.

Dr JOHN KAYE: Yes, the Coalition loves it. The Industrial Relations Commission, which this legislation is about to undermine in a radical departure from a 100-year tradition—one of the longest standing industrial traditions in Australia and one that has been extremely strong since the 1926 legislation—serves an important function, creates justice, helps the economy, has evolved from the past, and should be part of our future. I will now take each of those four features one by one and whether I can convince the Hon. Natasha Maclaren-Jones to vote against this legislation because of the logical inconsistency between supporting this radical legislation, which destroys an important institution, and her continued support for the monarchy, which has no basic purpose—

Mr David Shoebridge: She is troubled.

Dr JOHN KAYE: She is troubled, but it is not my desire to trouble anybody. It is my desire to challenge Natasha Maclaren-Jones to think about this legislation in the same terms that she applies to the monarchy. The monarchy serves no real purpose. We could easily replace the monarchy and we would hardly know the difference in our day-to-day lives. It would not affect the delivery of services or the quality of our lives. It would not affect any sense of justice or any sense in which our lives are better. An independent Industrial Relations Commission underpins our lives whether or not we work in the public sector. I say very proudly that I have spent my entire life working in the public sector, except for one brief consulting job with a heavily regulated—I say in my defence—private utility in the United States of America.

Even those in New South Wales who do not work in the public sector are massive beneficiaries of an independent Industrial Relations Commission. They are massive beneficiaries because it is the Industrial Relations Commission that creates the vibrant, healthy industrial relations environment that allows the public sector to prosper. A healthy industrial relations environment delivers wages to the public sector and allows it to be successful and—if you like these terms—to be competitive on a global scale.

Mr David Shoebridge: It is a key foundation.

Dr JOHN KAYE: It is a key foundation. We might not know the Industrial Relations Commission is there but if this legislation goes through every single one of us—whether we have a child in a public sector childcare centre, whether we have a child in a public school, whether we need to use a public hospital, whether we need to use public transport, whether we need to have interaction with the Department of Community Services; whatever it is in our lives—will know it has gone through. This legislation is a radical departure from tradition. Secondly, the monarchy creates no justice. As far as I can see going back to the time of the Tudors—a most unfortunate regime, I might say—then going forward to the time of the Stuarts—

Mr David Shoebridge: Or the O'Farrells.

Dr JOHN KAYE: We will get to the O'Farrells in a minute. I thank the member for that good line. We go forward to the Stuarts. Indeed, one of them had to be executed because of his disrespect to Parliament. The most useful thing he did in his life was to be executed, because in doing so he created a sense of balance between Parliament and the Executive.

Mr David Shoebridge: But not between torso and head.

Dr JOHN KAYE: That is a very important connection that you have made, Mr Shoebridge. It is impossible to point to even the Hanoverians in the Saxe-Coburg-Gotha and the Windsors. When one looks at the houses that have dominated the English monarchy, the Belgian monarchy, the French monarchy—the French monarchy came to an unfortunate severed end—the monarchies of Europe, one cannot identify any balance. It is unfortunate that Natasha Maclaren-Jones has left the Chamber.

The Hon. Marie Ficarra: She has been saved.

Dr JOHN KAYE: Well, you are here. Through you, Madam Deputy-President: Marie, are you a monarchist?

The Hon. Marie Ficarra: Absolutely.

Dr JOHN KAYE: Are you now and have you always been a monarchist?

The Hon. Marie Ficarra: Yes, I have always been. God save the Queen!

Dr JOHN KAYE: God save your queen, indeed. We will now try to persuade Marie Ficarra that she should vote against this legislation.

The Hon. Marie Ficarra: I do not think so.

The Hon. Rick Colless: Point of order: I have listened to this irrelevant drivel for long enough. If the member would get back to the leave of the bill members would be far more interested in that rather than hearing his personal views on monarchists and the monarchy.

Dr JOHN KAYE: To the point of order: I did foreshadow where this important argument was going.

The Hon. Rick Colless: It is not going anywhere.

Dr JOHN KAYE: The Deputy Government Whip may say that, but he might not be able to follow the argument. This argument goes to the radical departure that this legislation has from tradition. I am trying to evince that those on the other side of the House who are strongly monarchists—I note Mr David Clarke is in the Chamber; I am sure he is strong monarchist, but I would not be so sure about Mr Niall Blair—should make the connection between them voting for this legislation, which is radical and destroys a valuable tradition, and their support for a tradition that is not valuable. I am identifying how they are not valuable. It is an argument that goes to the very heart of the legislation.

The Hon. Amanda Fazio: To the point of order: I believe that the comments being made by Dr John Kaye are in order. He is setting the background for his argument as to why he believes people should support or not support this legislation. Therefore, I think Dr John Kaye was in order. It may well be regarded by some people as slightly esoteric but I could follow the logic behind his argument. I think it is important for members to consider that argument.

The Hon. Scot MacDonald: Point of order: I thought Madam Deputy-President had ruled on that some time ago. Why do we need to hear more on the point of order?

The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! I have not ruled on the point of order.

Mr David Shoebridge: To the point of order: Drawing an historical parallel between the function and utility of the monarchy, which is something that many on the other side use regularly in political debates on many matters, and the function and utility of the current system of the Industrial Relations Commission is perfectly valid to the purpose of argument. But I have yet a further point of order that goes to the point of order of the Hon. Rick Colless. In the course of his point of order he used deeply unparliamentary language in the description of Dr John Kaye's argument and the language used by Dr John Kaye as drivel. I ask the member to withdraw that unparliamentary language.

The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! If Dr John Kaye thinks the comment was unparliamentary or offensive he will ask for it to be withdrawn. There is no point of order in relation to Dr John Kaye's argument. However, he was drifting into trouble by asking Opposition members questions. I ruled on that matter earlier today. Dr John Kaye will direct his comments through the Chair.

Dr JOHN KAYE: Madam Deputy-President, I appreciate your ruling. I will direct all my comments through the Chair. Nonetheless—and this is not canvassing the Chair's ruling in any way whatsoever—the members I have referred to still refer to a number of members of the Opposition and that is why, from my perspective, their trenchant support for the monarchy and their seeming capacity—and I hope I am wrong in this manner—to vote for this legislation is a logical inconsistency. The long title of this legislation reads:
      An act to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions of employment; and for related purposes.

I will examine the inconsistency in the four key features of the monarchy side by side with the four key features of the Industrial Relations Commission. I have already said that I do not think the monarchy serves any real purpose. Even getting rid of the monarchy would not be all that radical, but members opposite on the one hand see it as tradition and they hold onto it regardless of its lack of use, but on the other hand they seek to get rid of the Industrial Relations Commission at least in terms of its independence. Shortly I will argue briefly that once you take the independence out of the Industrial Relations Commission, you no longer have an industrial relations commission that is really worth talking about. Our Industrial Relations Commission has certain important functions in Australia's industrial, economic and cultural history.

Coalition members are prepared to stand up for the monarchy when they cannot demonstrate that it has any real purpose, but they stand by while the Industrial Relations Commission, which is crucial to the quality of life of so many people in New South Wales and which has provided so much, is attacked. The monarchy has created no justice. An examination of history as far back as the Tudors—I am happy to go back further, if members would like me to do so, such as to William the Conqueror or even further back to Ethelred the Ready, or Ethelred the slightly less ready figuratively speaking, but at least all the way back to 1066—will show that the monarchy has not created justice whereas an independent Industrial Relations Commission has created substantial justice. As I stated earlier, it has not always done so perfectly, particularly in the case of the decision in respect of workplace conditions for TAFE teachers that was discussed earlier but, taken on the whole, it creates justice. If the Industrial Relations Commission's independence is taken away, it cannot possibly create justice.

Government members feel passionately, as the Hon. Natasha Maclaren-Jones stated in her inaugural speech, about the monarchy, even though it creates no real justice. The monarchy costs a lot of money. Story after story has been written about the amount of public money in the United Kingdom—fortunately not ours, but nonetheless public funds—that is spent on the monarchy, and that is a country that has a substantial level of poverty and a large immigrant population that needs education services—which, I might add, were badly damaged by the addiction to league tables of the Labour Government. At the same time, the independence of the Industrial Relations Commission, which this legislation will destroy, creates economic wealth. Evidence established by Ross Eisenbrey shows that an industrial relations commission and the system that surrounds it, such as arbitration, creates wealth when a collective group of workers can go to the commission and have a sense of obtaining a fair hearing.

Mr David Shoebridge: Security and certainty.

Dr JOHN KAYE: They are two good words. When a collective group of workers can go to the commission and have certainty and security of obtaining an outcome that works for them, that makes them better workers. It makes them more committed to the economy and more committed to their workplace. On the issue of economy, we have Government members who are committed to the monarchy, even though the monarchy does not in any way create economic wealth. In spite of that, Coalition members are happy to devastate, vandalise and destroy the independence of the Industrial Relations Commission. The monarchy remains a symbol of the past. It is not a symbol of the present or the future. On the other hand, an independent Industrial Relations Commission certainly comes from the past. It builds on a strong tradition that I am sure the Hon. Niall Blair would understand and would celebrate. Likewise, because the Hon. Marie Ficarra is a person who is known for her commitment to tradition, the loss of the commission's independence would be troubling to her—or I hope she would be troubled. The same goes for the Hon. David Clarke.

The Hon. Marie Ficarra: I am always troubled by you.

Dr JOHN KAYE: I acknowledge and welcome the interjection because I like to trouble. I think it is important that we trouble each other. That is an important outcome in this Chamber, particularly over this legislation. This legislation is deeply troubling and deeply disturbing because if it is passed it will create a problem that strikes at the heart of our society and will take us many years to rectify. While the monarchy is a symbol of the past, the Industrial Relations Commission, while it comes from the past, has evolved dramatically to respect the needs of the modern workplace. It should be part of the future. It desperately should belong to the future. It is an important component of the future. By taking away the independence of the Industrial Relations Commission, we are taking away its future.

Madam Deputy-President, I acknowledge that you granted me latitude to develop that argument. Personally, I find it a very persuasive argument. If I were a monarchist, I would be deeply troubled by this legislation because, hypothetically if I were a monarchist, I would be a monarchist because I believe in the traditions and I would believe in what those traditions deliver. I would believe that this is something important. An independent Industrial Relations Commission also has an important tradition that has delivered far more than the monarchy could ever dream of delivering, yet the monarchist members on the Government side of the House are happy to destroy that tradition.

I find that inexplicable but I must say that I look forward to contributions that will be made by Government members. At this point I observe that apart from the second reading speech we have not heard anything from Government members. We have not heard a word from The Nationals, even though this legislation will have a significant impact on rural and regional communities. It is legislation that will devastate some communities, if for no other reason than the impact it will have on TAFE colleges, as well as on the delivery of the whole range of public services in those communities.

I look forward to hearing from Government members, particularly the Hon. Natasha Maclaren-Jones, the Hon. David Clarke and the Hon. Marie Ficarra, and possibly the Hon. Matthew Mason-Cox, who I understand is probably a monarchist also. I hope they will be able to provide me with an explanation that will at least set my mind at rest, and hopefully set at rest the minds of the people of New South Wales, as to why they can be traditionalists when it comes to the monarchy but radicals and ignore tradition when it comes to something as important as the Industrial Relations Commission. The Premier, Mr Barry O'Farrell, still says that under his legislation, if it is passed, there will be a role for the Industrial Relations Commission. He has said very firmly that the Industrial Relations Commission will be an important component. It will. It will be a lapdog. It will have one role, and that one role only: to sit on the lap of the Government and purr loudly.

What a terrible thing to do to a court that has such a strong independent tradition. It is a court that, as I noted earlier, is not always perfect and sometimes gets it wrong. It is a court that nonetheless has a tradition. Yet what this Government wants to do is pull its claws. This Government wants to take away its independent will, its independence of ability to act—simply, its independence. Yes, the Industrial Relations Commission has a role. It has been taken from being a court to being a police enforcer. All it will be in a position to do is to enforce the outcomes of the Government's policy. Its only role will be like that of a bovver boy. It will not have any capacity to adjudicate. Yes, it will take evidence, but what is the point of giving evidence?

The Minister is not in the Chamber, but I am sure there is somebody here who is paying careful attention to everything we say and will note this down. The Greens want an answer to this question: Why would a union bother presenting evidence before the court? It is an expensive process gathering affidavits, finding people and having them give evidence before the court. Why would a union bother? I would not bother if I were a member of a union in the State system. My union is not in the State system—the National Tertiary Education Union is in the Federal system, which comes with its own problems that we can certainly talk about. I would be happy to talk about that later if we have time. It would be a good thing to compare and contrast.

Why would a union bother going through the expensive and laborious process of presenting a case to the Industrial Court? When I have looked at the sort of evidence that unions present I have always been impressed by what I see. It is a mighty opus that reflects on the underlying need for justice in those workplaces. It reflects the underlying basic values of the workforce and the sorts of things workers do. Why would you bother? You present all this evidence, you brief counsel, you do all these things, you get it all together, you go before the court and you give your evidence. The union gives its evidence and the employees give their evidence.

Then the final arbitrator says, "That's all very nice. Thank you for your evidence. It's very interesting. I understand what you're saying. But here is the regulation that wasn't disallowed by the New South Wales upper House last week that says in your particular case we have no choice. We are manacled to Government policy. We are manacled to a policy that says we actually have to disregard the value that your members deliver to our society. We have to disregard the hardship that conditions might impose on your members. We have to completely disregard the need for your members who live in expensive areas of New South Wales to have a decent living. We have to completely disregard all the evidence you gave us because none of it is consistent with government policy. What is government policy? Sorry, but government policy is all you get is 2.5 per cent. That is all you can have."

The Industrial Relations Commissioner says, "Thank you for your evidence. It is very persuasive and powerful evidence. I am very moved by it, but I can't use it. I can't use it because the New South Wales upper House in June 2011 passed the Industrial Relations Amendment (Public Sector Conditions of Employment) Bill 2001, an Act to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions of employment." That indicates very clearly that no union would be bothered. Why would they? They are just going to waste the time of their members, waste their time and waste their members' resources only to be rebuffed because this Parliament was silly enough to tie the hands of the Industrial Relations Commissioner to government policy. Government policy is written behind closed doors. We do not get to object to government policy.

Make no mistake: Once this legislation is passed, we cannot change government policy; we can only change the regulation that says this part of government policy is relevant. We cannot change government policy, and the unions are bound by it. So they walk away from the Industrial Relations Commissioner. I do not understand why any union would bother attending. When the Minister replies to the debate I want him to make it absolutely clear what he understands about the trade union movement and about the whole system that would make anybody bother going to a court whose hands have been tied up and chopped off. Why would you bother? I think we should change the name of the Industrial Relations Commission. It is not a commission any more.

The Hon. Jan Barham: What are you going to call it?

Dr JOHN KAYE: That is a good question. I have put some thought into it. What about the "industrial relations enforcer"? What about the "industrial relations freezer"?

The Hon. Jan Barham: Not good.

Dr JOHN KAYE: Not good? I have been told by my colleague from the North Coast, who has a fine sense of these things, that that language is probably a bit strong. Therefore, I suggest the "budget police". How about that? That is better. We do not have a name for it yet. It is clear that The Greens have not yet reached consensus on a name for it, but we will work at it because we cannot call it the "Industrial Relations Commission". It is an insult to a 100-year history of independence. It is an insult to a 100-year history of standing between the public sector workforce and the unions on the one hand and the Government on the other hand.

It is an insult to a 100-year history of standing up for industrial rights and of evolving principles of industrial justice—all of which will be thrown away. We cannot call it the Industrial Relations Commission if for no other reason than it is false and misleading advertising. If this legislation goes through and any union is lured into the process of developing evidence before the Industrial Relations Commission, then it is false and misleading advertising and the union should have cause to seek redress under the Trade Practices Act 1974, or the Competition and Consumer Act 2010 as it is now known.

Members will recall that a moment ago I started outlining four key reasons why this legislation is bad. The reason I am currently addressing is the damage it does to the industrial relations system—the damage it does not just to the court but to the system beyond the court. The system—with wrinkles and bumps, with ups and downs—has served us as a society in New South Wales for a hundred years or so. This Government wants to pull that apart in its first 100 days. It wants to kick it out. It is a bit like a kid playing with a big structure who says, "What will happen if we pull this prop out?" Well, I honestly cannot tell you what will happen in this case. The gift of perfect foresight is not given to any of us. But what I can say is that it will do violence to the system of industrial relations. It will leave the system of industrial relations in this society damaged—and not just the parts that pertain to public sector workers. All things are connected and a principle established in one workplace rapidly becomes a new principle in another workplace.

That is why the New South Wales Business Chamber has so enthusiastically supported this legislation. In a media release that was issued when the legislation was first released, it gushed about the "New legislation to drag public sector out of the 1970s". That is what the New South Wales Business Chamber headed its media release when this legislation came out. I have spent some time around public sector workers and I am yet to see a single public sector worker wearing flares and a paisley shirt. I am yet to hear them listen to the music of AC/DC. No, I tell a lie—I should not mislead the House—I have heard AC/DC.

The Hon. Scot MacDonald: No paisley.

Dr JOHN KAYE: I acknowledge the interjection. The Hon. Scot MacDonald quite accurately observes that the people in the gallery are not wearing paisley—and, to the best of my knowledge, none of them are wearing flares. Many of them are public sector workers. To say that public sector workers are in the 1970s is deeply offensive. The "rock on" effect of the Industrial Relations Commission is one of the four or five reasons I will outline in explaining why the New South Wales Business Chamber was gushingly enthusiastic about this legislation. By doing damage to our industrial relations system and undermining its independence—by taking away the economic, social and cultural benefits of a 100-year-old principle—we are doing grave injustice to our society and our economy.

Mr David Shoebridge: You have put David Clarke to sleep. Oh, he's awake.

Dr JOHN KAYE: I do not acknowledge the interjection from Mr David Shoebridge.

The Hon. Rick Colless: You just did, you fool.

Mr David Shoebridge: Point of order: The Hon. Rick Colless has used grossly unparliamentary language in describing my colleague, Dr John Kaye, as a fool. I ask him to withdraw it.

The Hon. Rick Colless: I apologise for the interjection. I withdraw the fact that I called the Hon. Dr John Kaye a fool.

The Hon. David Clarke: Point of order: I call upon Mr David Shoebridge to withdraw the statement that I was asleep. That is not true.

Mr David Shoebridge: I withdraw it.

Dr JOHN KAYE: I welcome the outbreak of common sense and decency in the Chamber. I hope that extends to when we come to vote on this legislation and members clearly see our point of view. Where were we?

The Hon. Marie Ficarra: Does it matter?

Dr JOHN KAYE: I acknowledge that interjection. It does matter because my speech is structured. I was talking about the damage that this legislation does to the Industrial Relations Commission and the damage that would flow from that to our economy and culture, as well as a sense of injustice and engagement. I now turn to the second matter—that is, the damage this legislation will do to the public sector and the important services it provides. This legislation is nothing short of a gun at the head of the public sector and the services it provides. If this bill for an Act to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions of employment and for related purposes is passed, then the capacity of the public sector to deliver services will be undermined by the efforts of any government to constrain costs. The trade-off clauses will come about off the back of public sector workers and public sector services. Even without trade-offs, this bill will reduce public sector pay, and putting downward pressure on public sector pay will reduce the quality of public sector services.

This legislation is what lawyers refer to as an "attractive nuisance", even to a government that does not want this legislation. Many governments are elected with the best will in the world. They come into power saying that they will not use the legislation, that they voted against it and do not like it. They say they will not use the power in the legislation and they will free the Industrial Relations Commission. Unless and until this legislation is repealed, it remains like the forbidden fruit—a temptation that no government will be able to resist. Not only will governments not be able to resist it but Treasury officials will goad them about it, day in and day out. These are the same Treasury officials who keep in the Treasury a beautiful gilded wooden box with ornate filigree brass hinges and a key. The box is kept locked for four years. Then the day after an election the box is brought out by a minor Treasury official to be polished, and then it is unlocked.

The incoming Treasurer turns up at work, bright-eyed and bushy-tailed, with sandwiches and a brand-new pencil case. The incoming Treasurer is excited about doing great things for the State. Then the Treasurer meets the Treasury secretary, who is wearing a black gown and black hood with slits for eyes. The Treasury secretary says, "Mr Treasurer"—or, one day I hope, "Madam Treasurer". One of the most important offices in this State has never been filled by a female. I often wonder if we had a female Treasurer and a female Treasury secretary whether the scenario I am about to describe would happen—or, if it did, would happen less frequently. Members will know that what I am about to say is true because they have read about it in the newspapers.

The Treasury secretary presents to the Treasurer the box, which contains the fiscal black hole. All of a sudden, all the joy on the face of the Treasurer disappears. All the happiness goes. All that first-day-at-school glory vanishes, and the Treasurer has to deal with the fiscal black hole. Then, usually two days of complete panic follow. They say, "We have a fiscal black hole." They run to the Daily Telegraph—occasionally to the Sydney Morning Herald or the ABC, but usually the Daily Telegraph—wailing like banshees, "I've found the fiscal black hole. All is doomed. My predecessor has lied to us." I look at the Government when I say this. The Government has just fallen for the oldest trick. I suspect the trick goes back to 1856—it goes back a long way. I am sure that when the Carr Government was elected the fiscal black hole was brought out. When the Greiner Government was elected, they went looking for the fiscal black hole.

Mr David Shoebridge: They dug it out.

Dr JOHN KAYE: They had been told it was there. So they shook the Treasury secretary until it fell out. I am sure the trick goes back to the Cahill, Renshaw and Robertson governments. I am sure that all the governments of New South Wales, following their election, were presented with the fiscal black hole. The fiscal black hole is like an inevitability machine. If it was on Doctor Who it would have that title and make funny noises. The fiscal black hole sucks away plausibility. It sucks in all fiscal plausibility and economic common sense. It sucks in all understanding of how an economy operates. It sucks in everything that is needed to make a society work well, and then it eats it up and destroys it. [Quorum called for.]

[The bells having been rung and a quorum having formed, business resumed.]

I was talking about the budget black hole: the gorgeous box sucking in all reason and common sense. All fiscal sensitivities go into this budget black hole. Of course, the first thing that happens is the Treasurer goes into meltdown. All the enthusiasm about the great things the Treasurer and the incoming Government could do disappear into this fiscal black hole. The next thing that happens is the Secretary of Treasury—this time not wearing a black hood but a nice white gown—says to the Treasurer, "But we can fix this because in June 2011 the New South Wales Parliament passed an Act to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions of employment and for related purposes." At that point the Secretary of Treasury will say to the Treasurer, "So it's all fine. All we have to do is get the budget black hole out of public services and, you know what, they've given us a tool to do it. The Fifty-fifth Parliament gave us the tool we need." That is the legislation before the House today.

It means that the value is taken from the public sector by imposing punitive conditions and stopping pay increases. Earlier I called it a "wage freezer", but it can be a wage slasher. This bill does not say that it is impossible to reduce wages. It is not up to the Industrial Relations Commission to say whether a wage cut is a good or a bad thing. If this piece of legislation is passed, wage cuts are a reality. That could be a real scenario. It is inevitable that once any government has this power it will succumb to the temptation and find it almost impossible to avoid. Some governments will have more resistance than others and some will have enthusiasm for it. We have to presume that the leadership of the Government that is about to pass this legislation has great enthusiasm for it. However, I am sure there are members in this Chamber who are not enthusiastic and who understand what this means for their communities. They understand that balancing the budget by eroding public sector pay and conditions is not in the best interests of their communities.

Let us examine the bill from the perspective of a government. For one minute, let us imagine that we are the Government and we see what pressures are bearing down on us. The first pressure on all New South Wales governments—I exclude The Greens as a hypothetical government—is the corporate sector. That sector is always looking to bloat its profits by lowering its taxes and charges. It sees public sector expenditure as anathema and a barrier between the corporate sector and the mega profits that it and its investors feel they deserve. I refer the House to the media release of the New South Wales Business Chamber on 25 May 2001 entitled "New legislation to drag public sector out of the 1970s". If I had written it, the title would have been "New legislation to drag public sector into the hellhole of neoliberal madness"—but I was not writing it. Stephen Cartwright, Chief Executive Officer of the New South Wales Business Chamber, said:
      No longer are the taxpayers of New South Wales a soft touch for union bosses. This legislation will ensure that taxpayers—
I do not think that really means you and me. I think that means his members. But it is misleading because his members grossly underpay their fair share and households actually grossly overpay their fair share. He continues:
      … get better value by ensuring that wage agreements are real and are honoured.
We have to decode that statement. The word "real" should really be the word "punitive" and the word "honoured" really means "enforced"—by the new enforcer. As the Hon. Jan Barham is not in the Chamber I can say that this bill will establish the industrial police.

The Hon. Duncan Gay: Where is Jan?

Dr JOHN KAYE: She is watching upstairs and having a good time.

The Hon. Duncan Gay: She's luckier than the rest of us.

Dr JOHN KAYE: That may well be. Madam Deputy-President, I am flouting your ruling and I apologise. He goes on:
      The Premier has the full and complete support of the business community on this issue.

My oath he does—absolutely—because this legislation is about taking away from the business community yet more burdens and the obligation to do its fair share.

The Hon. Scot MacDonald: Did you include Coutts-Trotter?

Dr JOHN KAYE: Ah, did I include Coutts-Trotter? I think the member refers to Michael Coutts-Trotter who is now the Secretary of the Department of Services and Finances, and formerly the Director General of the Department of Education and Training and much beloved by TAFE teachers and schoolteachers around New South Wales—not! So the Premier has the full and complete support of the business community on this issue—and on a number of others as well, I am sure.

The Hon. Duncan Gay: He was an appointee of the Labor Party.

Dr JOHN KAYE: No. The Deputy Leader of the Government has not been following carefully. I am quoting Stephen Cartwright. To the best of my knowledge, he has not been appointed to terribly much by the former New South Wales Labor Government—but, then again, not much would really surprise me. Mr Cartwright said:
      Linking real wage increases to productivity—
I will return to that idea in a moment—
      represented half the equation of how Government can get better value for taxpayers.
Half the equation? This bill for an Act to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions of employment and for related purposes is only half the story.

Mr David Shoebridge: Probably drafted by Dr Phelps.

Dr JOHN KAYE: Indeed, it was probably drafted by Dr Phelps. Let us get to the crux of the issue because the people who are watching from the public gallery have been kept in suspense for long enough. They are desperate to know the second half of Mr Cartwright's formula for New South Wales. It is a great shame that we cannot have a guessing competition because I am sure that many people watching this debate would be able to predict the outcome with the foresight that comes from years of observing public sector policy in practice. He said:
      In addition, we need to see—
wait for it—
      greater contestability across government services. If the private sector can provide an equally good service for less than the government, then it should do so. Frankly, government agencies try to do everything in-house—
I wish that were true—
      and in so doing, incur significant extra costs and deliver below par service ...
Unlike the private sector that does not incur additional extra costs and does not deliver below-par services—I think not.
      Whereas we see in the private sector the specialisation—
The Hon. Duncan Gay: You hate the private sector, don't you?

Dr JOHN KAYE: No, I don't hate the private sector. I buy my tomatoes from the private sector. I have been misrepresented. I am a great fan of private sector tomatoes. I have never sought nationalisation of the tomato industry in my entire life and it is a libel against me and The Greens to suggest I would. Mr Cartwright is waiting because he has much more to say. When a really good media release is written, as the Deputy Leader of the Government has done on numerous occasions, one knows to go from problem to solution. Mr Cartwright said the problem with the public sector was that it incurred significant extra costs and delivered services below par. And then from the dark music to the light music, it is all nice now, he said, "Whereas we see in the private sector the specialisation of services that ensures greater efficiencies at lower cost to government." Let us tell that to the poor benighted souls who are kept in mandatory detention centres.

Mr David Shoebridge: Friends of Serco.

Dr JOHN KAYE: Let us talk about the Serco delivery of services in the detention services and the huge cost overruns in the Department of Defence. Whenever there has been contracting out of information technology services there have been massive cost overruns. People who have had their information and technology services contracted out say they simply cannot get service. They call it ITNS—information technology not service.

Mr David Shoebridge: What about the previous Coalition's airport link?

Dr JOHN KAYE: I am glad you mentioned that because I almost didn't mention it—that was great contracting out! The last time I landed at Kingsford-Smith Airport I wanted to come to the city with two other people. Of course we also had the genius of the Fahey-Greiner Government. Whereas Mr Cartwright said that we see in the private sector the specialisation of services would ensure greater efficiencies at lower cost to government, I had to pay $20 to get onto the train. It cost the three of us $60. We could have got a limousine cheaper than that, and Mr Cartwright says they are even greater efficiencies at lower cost. It may be a lower cost to government but if we take an economic view rather than just a budget bottom-line view, look at the economy as a whole and what we as a community achieve, it is not cheaper to let the private sector in; it is more expensive— unless it is the delivery of tomatoes when they are extremely good.

Mr Cartwright is saying very clearly, "This is good for us because this legislation will take money away from public sector services, from public sector wages and will give us an opportunity to argue yet again for reducing taxes and charges so that we can bloat our profits and pay ourselves bigger dividends and bonuses." This is robbing the communities of New South Wales to put into the coffers of the boardrooms and the people who inhabit them around New South Wales. More than that Mr Cartwright accidently, I think, exposed the other reason for this legislation, which is privatisation. The second real agenda of this legislation is privatisation, that is, "Let us impoverish the public sector, run it down as hard as we can and let the Sercos of this world come in, let the private sector providers of vocational education and training, secondary education, hospitals, ferries and emergency services come in and cherrypick those services where they can make a buck and leave with the public sector those services which are more expensive. Let us yet again privatise the profits and keep the costs and the losses in public hands."

If members do not believe me I urge them to read the report of General Purpose Standing Committee No. 1 into Gentrader transactions where a number of members of the Opposition joined with The Greens and the chairman, Reverend the Hon. Fred Nile from the Christian Democratic Party, in order to expose a massive example of where the former Government handed over the profits and kept all the costs. That is what Mr Cartwright wants and sees in this legislation, which creates an Act to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions of employment and for related purposes. That is exactly where Mr Cartwright is coming from. Yes, Mr Cartwright was thrilled, he gushed and was excited as he saw the opening of the gates. He saw the New Jerusalem. He saw the possibilities for a real future for his members to get their hands on public sector gold. He saw this as a cherrypick for the Business Chamber of New South Wales.

Mr David Shoebridge: They have already got the ferries, John.

Dr JOHN KAYE: That is incorrect; they have not got the ferries. They have one of the ferries. They are having a go at the ferries. I need to correct Mr David Shoebridge; the ferries are still in public hands and they should stay in public hands. We should not let Mr Cartwright and his mates get their hands on them.

[Interruption]

Madam Deputy-President, I know you have asked me not to engage in interjections, but I seek your indulgence to respond to the Minister for Roads and Ports because it is such an invitation to respond.

The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! I would rather the member not respond to interjections.

Dr JOHN KAYE: I shall not respond but the Deputy Leader of Government will keep. He does.

The Hon. Duncan Gay: I am not going anywhere.

Dr JOHN KAYE: You are not, no, not yet.

[Interruption]

Like a good gherkin. This sudden massive enthusiasm for the Industrial Relations Amendment Act and its provisions did not come from nowhere. On 20 March 2011 the Business Chamber of New South Wales published its 10 big ideas advertisement in the Sydney Morning Herald and in the Daily Telegraph. It was a full-page, glossy, colourful advertisement, although I cannot tell the colours because they are in the range I have difficulty with. The 10 big ideas said "NSW Deserves Better". I have been around politics for some time. People in my party will tell me I am probably not the most astute person in this matter but I read that as saying "Don't vote Labor" and also "Don't vote for The Greens".

The Hon. Duncan Gay: That would have been good advice.

Dr JOHN KAYE: It might have been good advice from your perspective. I read it as saying "Vote for the Coalition". It is interesting that just six days on the all important big media Sunday before the election the Business Council of New South Wales ran a banner headline "On election day remember New South Wales deserves better." An observant reader would say, "Better than what?" If they had they might have thought more carefully about it. Clearly it is an advertisement for the Coalition. If people had been following the emerging warm, supportive and nurturing relationship that was developing between the New South Wales Business Chamber and the Coalition Government one would have recognised that this advertisement—

The Hon. Duncan Gay: It is very similar to The Greens' Labor one in Canberra and now developing in New South Wales.

Dr JOHN KAYE: I have to respond to that because if it were that toxic, why would they spend that amount of money to produce this advertisement? Madam Deputy-President, I will be sensible and will not respond to his interjection.

The Hon. Duncan Gay: You can't have it both ways. You can't be critical of people's relationships and not take criticism of your own.

Mr David Shoebridge: Point of order: Madam Deputy-President, you have made repeated rulings that Dr John Kaye is not in a position to respond to the interjection. However, it is a true test of any speaker's patience, to which they should not be put, to have interjections made by members opposite and not be allowed to respond. The best resolution is for you to remind the Deputy Leader of the Government that his interjections are disorderly and are delaying conclusion of this debate.

The Hon. Rick Colless: What a hypocrite.

Dr JOHN KAYE: I take offence at the language used by the Deputy Government Whip.

The Hon. Duncan Gay: He hasn't said anything.

Dr JOHN KAYE: He called Mr Shoebridge a hypocrite.

The Hon. Duncan Gay: Truth hurts.

Mr David Shoebridge: I take offence at that too.

The Hon. Duncan Gay: Point of order: The member who wishes not to be called "honourable", Mr David Shoebridge, indicated that there is a way to overcome this. There is a way to overcome this. Either Dr John Kaye sits down or he stops inciting us by making unfair links to the Government and different bodies when we cannot respond. Yet, if we put the same allegation to Dr John Kaye he asks for us to be ruled out of order. I find it totally unfair that Dr John Kaye puts out this rubbish about other people yet he is not willing to accept the same sort of criticism. The best way to stop this is for him to sit down and stop this rubbish.

Mr David Shoebridge: To the point of order: The fallacy in the argument of the Hon. Duncan Gay is that at no point did Dr John Kaye make any reference to Federal Greens or to any issue in relation to the politics of Canberra. That issue was sought to be injected into the debate by the unseemly interjection of the Leader of the House directly opposite Dr John Kaye when he was making his contribution. I am offended by statements by the Hon. Rick Colless, adopted by the Leader of the House, that I am a hypocrite.

The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! I remind members that interjections are disorderly at all times. Members will have an opportunity to participate in the debate.

Dr JOHN KAYE: I will return to what I was saying. On 20 March—the crucial Sunday before the election, the vital Sunday before the election, when advertising was at a premium; it is the last Sunday paper published before the election; the last Sunday message; the greatest number of eyes on print that happens in New South Wales—the New South Wales Business Chamber published an advertisement about election day. It does not hide the fact that the advertisement is about the election. It states:
      On Election Day, Remember NSW Deserves Better.
Not that it has got these 10 big ideas—and I will talk about those in a minute—but that on election day when people vote they should vote for "NSW Deserves Better". With respect to the Labor members of this Chamber, I do not think that anybody thought that if they could do better they would vote Labor.

Mr David Shoebridge: There is a lot of truth in that.

Dr JOHN KAYE: There is a modicum of truth in that.

The Hon. Duncan Gay: You represent that.

Dr JOHN KAYE: I represent that. I will now draw the link, which is very clear. On 20 March we have the "NSW Deserves Better" advertisement with the New South Wales Business Chamber spending the money of its members—I was about to say the hard-earned money of its members, but I know that some members in the gallery would not agree with that, and I am probably with them—to advertise for the Coalition. Then on 25 May, only a matter of two months later, in the 100-day period—which I will come back to—we get a celebration of a bill for an Act to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions of employment; and for related purposes.

The Hon. Duncan Gay: I can't keep sitting here listening to this rubbish.

Dr JOHN KAYE: Madam Deputy-President, I will totally follow your ruling about interjections, as much as I would like not to. There is a very clear connection between the two events. We have the gift and, following the gift, we have the thank you—the thank you for delivering what the gift was for. Of course, the New South Wales Business Chamber likes this stuff.

[Interruption]

I am sorry it is hard for you, Duncan. It grieves me greatly.

The Hon. Duncan Gay: I would like to be outside watching this where I can turn the sound down.

Dr JOHN KAYE: I genuinely feel sorry for you. It is hard for me to put into words how sorry I feel for you.

The Hon. Duncan Gay: I'm feeling better.

Dr JOHN KAYE: It is good the Leader of the House feels better. We have discussed this before: I am here to make the Chamber feel better. There is a very clear connection: the advertisement, the legislation, the thank you—one, two, three. What does the New South Wales Business Chamber get out of this connection? It gets a business environment, which means that—thanks to Treasury, thanks to the legislation and thanks to the Government, it can lock in a pecking order. That pecking order is, number one, the profits of the members of the New South Wales Business Chamber; number two, the budget bottom line in New South Wales—I was about to say number three, but it is a very poor number three under this legislation: the quality of public services, the industrial justice for those people who deliver those public services and the quality of our industrial relations environment are being sacrificed to deliver those outcomes.

The idea that politicians are here to serve the community is an appalling travesty. The politicians, the elected representatives, who are here and who genuinely believe that we are here to represent the voters of New South Wales, to represent the best interests of the community, to represent that which is good and decent in our society, will vote against the legislation. The rest of the members here should remember that they are voting for what the New South Wales Business Chamber is celebrating. It is very excited because it knows that not only can it get its hands on reducing its fair share, and paying even less than its fair share, of the costs of running the State but it also knows that this will be the next step towards getting its hands on even more of the public sector—the next step to the rape and pillage of our public sector that it envisages in its media release of 25 May 2011. The Greens cannot possibly support that.

The New South Wales Business Chamber is not only celebrating the potential for reducing its taxes and charges even more and bloating its profits even more but it is celebrating the new opportunity to cherrypick profitable public sector services and to outsource them. It is very interesting to go through the 10 big ideas. It would be tedious repetition to go through all of them so I will just pick out a few of them. As far as I can see, not one of them refers to industrial relations. Not one of them says, "Screw over the public sector".

The Hon. Duncan Gay: Point of order: The point of order is relevance. Dr John Kaye said that none of these big ideas has anything to do with industrial relations. If they have nothing to do with industrial relations there is no point in burdening the House any more.

The Hon. Adam Searle: To the point of order: The proposition from the Deputy Leader of the Government is without foundation. The point that Dr Kaye was making was that at the last election the Coalition did not come clean with the electorate; it did not set out its stall in the transparent way the Coalition said it would. It sought election at the last election on the basis of greater transparency and integrity in government, and this is a very big ticket item—

The Hon. Duncan Gay: You and he are trifling with the House.

The Hon. Adam Searle: Madam Deputy-President, could I be heard without interjection? I note your earlier ruling.

The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! The Hon. Adam Searle has the call.

The Hon. Adam Searle: Dr John Kaye is making the simple point that the Coalition did not come clean with the electorate and did not set out its policy in its propaganda.

The Hon. Duncan Gay: It's not the point he was making. You're making the point I was making. You're just wasting time.

The Hon. Adam Searle: The Deputy of the Government is wasting the time of the House with his pointless interjections.

The Hon. Duncan Gay: To the point of order: I am reluctant to take a point of order, but both Dr John Kaye and the Hon. Adam Searle are trifling with the House. The comment of the Hon. Adam Searle had nothing to do with my point of order. Once again he is simply wasting time. Both he and Dr John Kaye are keeping Hansard, other workers in the Parliament and members of Parliament with young families here because they like the limelight and simply want to waste time. I ask you to draw Dr John Kaye back to the leave of the bill.

The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! As I have said previously, it is a convention of the House that members be extended wide latitude during the second reading debate. However, Dr John Kaye will ensure that his remarks are within the leave of the bill.

Dr JOHN KAYE: My point is that the advertisement on 20 March 2011 is significant because it came from the same organisation that only two months later produced a simpering media release welcoming new legislation to drag the New South Wales public sector out of the 1970s. The Coalition told the people of New South Wales that they deserved better, but not one of its 10 so-called big ideas referred to changing public sector conditions of employment. Certainly, I do not think the first big idea is a big idea at all.

I wonder whether anyone has thought about suing the organisation for false and misleading advertising under section 54 of what was known as the Trade Practices Act. Perhaps it is not a trade and commerce matter. It is to ensure that taxpayers get better value for money by auditing government services and performance. That is a little like the National Assessment Program—Literacy and Numeracy testing: One thinks they can make people smarter by measuring their performance. A former New South Wales union leader always says that if people want to have fat cows they should feed them, not weigh them. I cannot see the point of auditing.

At the risk of boring repetition—I could say a lot more about the other items—I will not detail all the big ideas. Members do not have to believe me; they can read the interesting website, www.10bigideas.com.au. Reading that website is like reading the Liberal Party's election website but it is more colourful. If people like colours they should read the big ideas website. Nonetheless, the Coalition never mentioned its number one priority on the Government's list of 10 big ideas for New South Wales. It did not mention public sector industrial relations reform or union bosses.

None of these things were on the Coalition's website before the election. The New South Wales Business Chamber would not talk about those things before the election but, like the Coalition—I will get to this in a minute—suddenly it cast a slur on people who represent their members in a democratically elected organisation called a union. This goes to what we said about this being the "WorkNoChoices New South Wales" bill. This is WorkChoices written down for the poor people of New South Wales.

The Hon. Duncan Gay: Point of order: This bill is not the WorkChoices New South Wales bill. There is no reference in the bill to WorkChoices New South Wales. This bill is Labor Party policy from the previous Government.

The Hon. Adam Searle: To the point of order: This bill is much worse than WorkChoices.

The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! That is not a point of order. Dr John Kaye has the call.

Dr JOHN KAYE: What we have here is WorkChoices for the New South Wales Business Chamber. I will come to the Coalition in a minute. For the New South Wales Business Chamber, on 20 March 2011 the 10 big ideas were well and truly hidden in the bottom drawer. The drawer was cramped because Nick Greiner was in there with a bunch of policies. He had been there for a long time. When did he cease to be Premier of New South Wales?

The Hon. Adam Searle: In 1992.

Dr JOHN KAYE: That is a long time to spend in the bottom drawer. Nick did not waste his time entirely; he tried to privatise Queensland rail successfully—and shamefully with the Queensland Labor Government. He had a number of jobs, but he was lingering in the bottom drawer. Then he popped out with his "WorkNoChoices New South Wales" legislation. I will return to this issue in a moment, but it is deeply offensive that the Coalition did not tell the people of New South Wales about its plan to reform industrial relations. People in the gallery and members of the House are astute election watchers. They watch the material that is distributed during election campaigns, and they are very concerned about it. I want to know what the Coalition, the Labor Party, the Christian Democrats, the Shooters and Fishers and Pauline Hanson are doing. So I had a fair handle on what they were announcing and saying during the election that they would do.

I challenge anyone to show me a "bill for an Act to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions of employment; and for related purposes" that was released during the election campaign. I challenge the Hon. Walt Secord, who follows elections more intensely than anyone else. I do not know whether he or anyone else saw it. We certainly did not see it coming out of the New South Wales Business Chamber. To return to my theme, members will recall that I was detailing the four main objections to the legislation. The first, which I have already canvassed, is that it will damage the New South Wales industrial relations system. I might return to that later because I have not fully covered a few matters; I have simply given an outline.

This legislation will damage and undermine the public sector. It will damage not only public sector services but also public sector employees. Some 386,184 people work in the New South Wales public service; that is 322,452 full-time equivalent people working in the New South Wales public service. They deliver government services, including teaching in schools, preschools, TAFE colleges; our police service; various health services, nurses, doctors, midwives and so on—I will have more to say about that later—emergency services, welfare services, transport, ambulance services and so on. Some 386,184 people, or 322,452 full-time equivalents, provide those core services. They provide quality of life for ordinary citizens in New South Wales. They provide safety, education, health, and necessary support when we get into trouble and need emergency services. They provide a big part of the welfare sector. They keep us mobile and moving around. They pick us up when we are sick; they deliver us home when we are better. They are the glue that keeps people's lives running. I am talking about not only wealthy people and people who live in wealthy suburbs but all the people of New South Wales who access those services.

These are the great levellers; these are the great providers of fairness and equity. When children go to a public school, they go to a public school. It does not matter whether their dad owns a department store or he does not have a job; it does not matter whether their mum is a single parent or she has a nanny. If people go to a public hospital they are public hospital patients. It does not matter whether a patient is Kerry Packer or an unemployed person who has never had a job. Perhaps I should rephrase that: It does not matter whether the patient is Kerry Packer or not Kerry Packer. What is the opposite of Kerry Packer? It does not matter whether the patient is Kerry Packer or someone who has worked hard. It does not matter who it is, anyone who is admitted to a public hospital is treated in the same way.

Emergency services personnel do not care whether someone in distress is wealthy or poor, they will deal with them. The same applies with public transport. When people get on a train, it does not matter how much money they have if they have paid their fare. Public services are a great leveller and provider of equity and fairness. It does not matter how wealthy or poor we are; the circumstances of a child's parents do not matter because that child is a valued citizen of our society and he or she will be the recipient of quality public services. If we were simply talking about fairness and equity we could stop this debate now, because we would have won the argument. Because to damage that fairness and equity is to take from our society that essential civilising ingredient that makes us proud of it and of the way in which we deliver that equity. However, it is more than that. It is also about keeping our economy operating.

I take members back to our good and dear friends at the New South Wales Business Chamber, who are only too happy to undermine the quality of those services. Its members do not realise that their economic success is dependent upon the quality of our public services. This legislation will deliver profits in the short term, but in the long term, as it runs down public services and destroys them, it will make them poorer and it will undermine their ability to operate in an economy. Members should think about the transport services we provide that get people to work on time—at least some of the time—which are so important to keeping us mobile and which enable us to reduce greenhouse gas emissions and our drawdown of precious fossil fuels. Members should also think about the economic value of all our young people being well educated. The economic success of our society is totally dependent upon a public education system that includes TAFE colleges and schools that can deliver quality education.

Members should think about the economic benefits of a public health system that cures people and of an emergency services sector that deals with accidents efficiently and fairly. What is absolutely clear is that a quality public sector not only provides quality of life for all New South Wales residents regardless of where they live in terms of safety, education, health, transport, welfare services, emergency services and ambulance services, but it also keeps the economy operating. It is crucial to the operation of the economy, from a transport point of view and an education point of view. It was estimated by the Allen Consulting Group that for every public dollar invested in the TAFE system we earned $6.40 over the subsequent 20 years in improved economic activity. That is a clear example of investment in a public service producing a long-term quality outcome.

How can the New South Wales Business Chamber overlook that important connection? I am being unfair; it is not only the Business Chamber that has overlooked it, the Coalition leadership has also missed it. I refer specifically to the leadership because I still hope that some Coalition members, particularly members of The Nationals who will recognise what this legislation means for their communities, will see sense and start arguing against it. How can the Business Chamber miss the connection between a robust public sector and profits? Many people wonder why business makes such short-term investments. The answer is straightforward: Members of the Business Chamber are not in it for the long haul; they are in it for the next profit reporting cycle. If we enact laws that are written by the New South Wales Business Chamber they may or may not work well for one or two years, or until the next profit reporting cycle. However, the crucial question we should ask ourselves—and we should not vote for this bill until we have answered it—is what this will mean in 5 years, 10 years, 15 years and 20 years.

What will happen if we start to strip our public services? What will be the impact of reducing wages and conditions, and privatising public services? What will that mean for the future of our society? What impact will it have on the kid with the single mother who has not a brass razoo to her name? What will it mean to their life opportunities? What will it mean to the young bloke who wants to work in a motor trade but does not know how to go about it? What impact will it have on him if we undermine TAFE? What impact will it have on the young woman who wants to go to university in the city but who lives at Mount Druitt and has no access to a quality public transport system? What will it mean to the person whose family is falling apart and cannot access public welfare support? It will mean that we have devastated the very glue that holds our society together.

The Hon. Walt Secord: Shame.

Dr JOHN KAYE: I think the Hon. Walt Secord said "shame".

The Hon. Matthew Mason-Cox: No, he said "spin".

The Hon. Duncan Gay: It is a shame there is so much spin.

Dr JOHN KAYE: No, it is a spin that there is so much shame. Why is this happening? It is happening because members of the New South Wales Business Chamber, who are calling the shots, are making it clear that they do not care about the long term. The only thing they want is a better profit bottom line.

The Hon. Duncan Gay: You hate free enterprise.

Dr JOHN KAYE: No. The Leader of the House clearly has not heard me say that I like my tomatoes delivered by the free market. I have said a number of times that I would not want to see the public sector deliver my tomatoes. Perhaps we should explore that later. I will get back to the legislation, which is a bill for an Act to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions of employment and for related purposes. What does that mean in terms of the quality of the public sector? Let us think that through. What will happen if we deny our public servants fair wages, because that is what this is about? Under this legislation, public sector employees will not be able to get a fair hearing before an independent umpire—

The Hon. Walt Secord: Just mention Wisconsin.

Dr JOHN KAYE: Wisconsin is significant in this debate. It is part of a bigger picture and we should spend some time considering it. I will do that because in many senses the situation in Wisconsin represents the future.

The Hon. Walt Secord: And a bad one.

Dr JOHN KAYE: Yes, a very bad. I have allowed some time to deal with Wisconsin and I ask the member to be patient until I get to it. I have a little work ahead of me before I do. I was dealing with the denial of fair wages to public sector employees. What will happen if public sector salaries are not competitive? What will happen to fire brigade services if this legislation is enacted? Our fire service officers do an extremely difficult job. I wanted to be a firey when I was a kid, but now that I am an adult the thought terrifies me.

I had the opportunity recently to watch fireys at work; to watch their professionalism and their commitment to work collectively. The importance of working collectively applies throughout the public sector but nowhere is it more clear and obvious than in the Fire Brigades. Their lives and the lives of the people they are trying to save depend on it. What would it mean if these people who do this incredibly hard, dangerous, difficult and sometimes unpleasant job—you can imagine some of the things that Fire Brigade officers have to deal with—were told they were to get a 2.5 per cent increase? Take a young Fire Brigade officer who has a new family and is developing a career. Suddenly she sees this legislation. It says to her: sorry, there is no future for you, you will only ever get 2.5 per cent.

When that budget black hole—remember the budget black hole in the box with the ornate filigree brass with the black hood and the whole thing—has to be filled it will be the fireys along with the ambos, the teachers, the welfare sector, the general public service, and every other public sector worker and the TAFE teachers who will suffer. That young woman is smart; she knows the budget black hole story—out it comes every four years—and she sees that this Parliament has passed a bill for an Act to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions of employment and for related purposes. She asks what future there is for her in the Fire Brigades. She is only ever going to see non-competitive salaries. Day in day out she is doing night duty, call-out duty—

The Hon. Walt Secord: You move interstate.

Dr JOHN KAYE: You move interstate. You could go to Canada, anywhere, but you would not want to be in New South Wales. We will get to interstate competitiveness in a little while. I promise you we will get to interstate competitiveness. It is not just that this person needs to remain a firey. She is a talented young woman and is capable of retraining and doing something else. She chose a life in the Fire Brigades because she wanted to serve. She cares about people and about her community. She is your classic public sector worker. She is like the teachers, like the ambulance driver, like all the public sector workers—they care—but she sees she will never have a competitive salary in the public sector. So she goes interstate or, worse still, she goes to the private sector in another career. We have lost another talented young person from the public sector. The Fire Brigades is not fire appliances. It is not fire stations. It is not sirens and bells and axes and hoses. It is none of those things. Our Fire Brigades and all our emergency services are the people who operate them, the people who put their lives at risk, the people who work hard for the community—

The Hon. Duncan Gay: Save your health, go to a doctor.

Dr JOHN KAYE: I am saving my health. I am saving my health, the health of Mr Secord, the health of Mr Moselmane, of Mr Searle, of Ms Sharpe and—I am not sure why I am doing this—I am even saving the health of Duncan Gay, because if we let this legislation go through health will be one of the key things that will suffer.

My point is clear and simple: If we undermine public sector wages, if we undermine the very thing that makes it possible for public sector workers to fulfil their mission to serve the community, the wages that make it possible for them to have a reasonable life, we take away the very thing that keeps our public sector what it is today—a world-leading public sector, a world-leading public education system despite unfair competition from the private sector, a world-leading TAFE system, despite subsidised unfair competition from the private sector, a world-leading Fire Brigades, a world-leading public transport system, a world-leading emergency services sector and a world-leading welfare sector, sectors that struggled with decades of underfunding and political neglect and, I have to say, far worse, political abuse.

The public sector has been resoundingly told by its political masters that it is second rate yet it continues to deliver. But if we deliver this insult to public sector workers and make them the front line in the Government's neoliberal fantasy about balanced budgets and cutting taxes and charges to the big end of town, Mr—

The Hon. Greg Donnelly: The one with the dragon.

Dr JOHN KAYE: No, the dragons come later—Mr Cartwright. If we decrease their pay and conditions to fatten the profits of Mr Cartwright and his members, the former Government Whip, Mr Donnelly, knows what will happen next. We will have a run-down of our public sector services. That means the liveability of New South Wales takes a nosedive. Health services, emergency services, and not just those crucial services, but the benefits that mushroom out from that, the benefits that encompass our society and make our society more civilised, start to deteriorate because we have foolishly, stupidly, made a decision to pass a bill for an Act to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions of employment.

You cannot mess with conditions of employment, and rationally and logically expect the public sector to continue to deliver quality services. You cannot do it, it is irrational. It is a departure from commonsense to imagine for one minute that you could pass this legislation specifically designed to undermine public sector conditions of employment, to put public service conditions of employment directly in the firing line of the razor gangs that try to fulfil the neoliberal fantasy of cutting taxes and charges to the big end of town while simultaneously balancing the budget. That is what this legislation will do. That is why the legislation should be totally rejected.

It goes further than that. Let us return to the Fire Brigades for a minute. Let us imagine this young person does leave. As a society we need a certain number of Fire Brigades officers and we need to attract new people into the Fire Brigades. How will we do that? We want some young people like that talented young woman with very specific personal characteristics, personal characteristics I do not have. I have massive admiration for those who do—those who have no fear of heights, those who have great confidence in their physical prowess in dealing with those difficult conditions. We need to attract new young people. It does not mean many people will be attracted but they will say, "This is a life of service, a lot of excitement, a life of camaraderie, a great life, I want to be in it."

The next thing they will do is that they will look at their pay and conditions. They will ask the very important question: "Can I live within cooee of my parents and my friends, where I grew up, on this salary? Can I ever contemplate being able to pay the rent or buy a house?" Having forked out a massive amount in rent to live in Sydney near their family and their friends, they will then ask, "What's left over, on this salary?" The next thing they will ask is, "What's going to happen in the future? How is this going to evolve for us? Where is my chosen profession going to take me economically? What will it allow me to do?"

As a valued member of the Fire Brigades, as somebody who is a committed, well-trained person who continues with the process of professional development throughout their career, who shows great aptitude, who shows complete commitment to the ideals of public service, who puts their own body and life on the line—where does it go to from here for them? They might pick up a copy of what I hope will never be "An Act to amend the Industrial Relations Acts 1996 to require the industrial relations commission to give effect to certain government policies on public sector conditions of employment; and for related purposes". I hope the bill never becomes that Act. I hope members of this House—particularly members of The Nationals, of whom I think there are three in the Chamber at the moment—recognise what this legislation will mean for the Rural Fire Service, the fire services in their areas, the professional fire services in their areas, and indeed all the services in their areas.

A young woman thinking of joining the Fire Brigades will get a copy of what will then hopefully not be legislation, and she will say, "Well, what future is there for me in the public sector? What future is there for me to have a life where I fulfil my desire to serve? What future is there for me when this Act says the Government, totally at whim, according to a policy that is locked away in a drawer, just one drawer up from where Nick Greiner used to live—"

The Hon. Duncan Gay: It wouldn't have been a seamless drawer. This is the Labor policy.

[Interruption]

Dr JOHN KAYE: If the interjectors would hold their interjections for a minute, I will get to this issue. It has come up time and again.

The Hon. Duncan Gay: You're taking a long time.

Dr JOHN KAYE: No, I am not taking a long time. I am sure the Hon. Marie Ficarra will certify that by most standards I have been brief. I am sure she will certify that, because she is honest.

The Hon. Marie Ficarra: Tedious, and repetitious.

Dr JOHN KAYE: I may have been tedious, but no more than normal. I will get to the issue of the former Government's policy. It was a policy that I fought really hard against; I thought it was a bad policy. But what I will demonstrate—and it will put this matter to bed once and for all—is what the former Labor Government did—

The Hon. Duncan Gay: What we all want to do.

Dr JOHN KAYE: Well, we are going to put that shibboleth down; we are going to get rid of it. We will do that in a minute. We will not do it now, because I am still talking about a very important matter: the impact this legislation will have on public sector pay and conditions. From there—I am trying to create a logical flow here—we go to the impact of the legislation on the capacity of the public sector to recruit new members, and from there we go to what that will mean for the quality of public services. What Labor did was reprehensible. With all due respect to members of the Labor Party, Labor's policy came in under a reprehensible former Treasurer. But the policy was qualitatively different from the legislation before the House. If Government members bothered to participate in this debate—clearly they are over it—

The Hon. Matthew Mason-Cox: Well, sit down.

Dr JOHN KAYE: No, I am not going to sit down. You can keep saying that, but I am not going to sit down. This matter is too important to simply give it a cursory once-over. This is a crucial matter.

The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order!

Dr JOHN KAYE: Madam Deputy-President, I understand what you are about to say, and I will not continue to respond to the interjections. But I will get back to that issue, because it is simply not true. This legislation is an order of magnitude, two orders of magnitude, three orders of magnitude, or perhaps five orders of magnitude worse than what Labor did, because it enshrines the policy in legislation and it creates that direct trade-off. If members had been listening they would understand this—from my contribution, the contribution of the Hon. Sophie Cotsis, which was detailed and experience-based, the remarkable contribution of the Hon. Lynda Voltz, and what I thought was one of the most spectacular contributions from the Opposition side, the contribution of the Hon. Greg Donnelly delivered last night. I must say, one of the reasons I am so tired now is that I was gripped by the Hon. Greg Donnelly's skilful use of statistics.

The Hon. Eric Roozendaal: Hear! Hear!

Dr JOHN KAYE: That coming from a man who artfully and skilfully used statistics throughout his life—

The Hon. Greg Donnelly: But an evil social scientist, too.

The Hon. Marie Ficarra: Eric has come into the Chamber.

The Hon. Scot MacDonald: Is that the Treasurer you were talking about? He's just walked in.

Dr JOHN KAYE: I'm not in the business of defending. No, it was not that Treasurer—although, he is reprehensible. But that is another matter. It was one of his predecessors who introduced the policy. I will get to that. But I would like to continue because this is an important issue. This is the issue of the young woman who is contemplating a career with the Fire Brigades, who realises that she has the innate qualities a person needs to do that job. She is incredibly talented. She is dedicated and she is focused, and she wants to do it. She wants to be a firey. That is what she wants to do. As I said before, I have huge admiration for anybody in that situation.

We should recognise that this is somebody who is prepared to join a team and work collectively and cooperatively in a very difficult and dangerous environment. As I say that I am also thinking of lots of other public sector workers who do exactly the same thing. I am thinking of my partner, who is a public school teacher and who works cooperatively in a very difficult and dangerous environment. But I will leave that aside.

I want to go back to the young firey. She wants a career. But what does she do? She picks up the Industrial Relations Amendment (Public Sector Conditions of Employment) Bill 2011—which we really hope never becomes an Act. But if it becomes an Act, it will be "An Act to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions of employment; and for related purposes".

That young woman knows she will be a public sector employee. She knows full well that this legislation will impact on her ability to earn a decent wage. She will then be in the dreadful situation of making a determination: "Will I sacrifice the quality of my life? Will I sacrifice the things I want to do: the family I want to have, the social engagements I want to have, and my engagement with my church?" For example, she might want to join a gun club. But she will not be able to join a gun club, and she will not be able to make donations to a church, because this legislation, which this House is poised on passing, will rob that money from her. What will she do? What decision will she make? She will make a decision—

The Hon. Greg Donnelly: Point of order: I draw your attention to a Government member using her mobile phone in the House. Such behaviour is totally unparliamentary.

The Hon. Duncan Gay: While you're at it, will you include people eating? What a stupid thing to do.

The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! I ask all members to observe the usual courtesies in the House.

Dr JOHN KAYE: The case of the young woman I have referred to is one of many. This young woman will have to make that decision. Can she have the life she wants to have? Can she be a firey and also afford to be a member of gun club? Can she afford to go to her church and make a donation?

The Hon. Duncan Gay: The Greens don't like gun clubs. There wouldn't be any gun clubs under The Greens.

Dr JOHN KAYE: The question is: What sort of life will this woman be able to live? She will be faced with a shocking dilemma. She will choose either a life in public service and not be able to belong to a gun club or be able to make donations to her church or she will leave the public sector—

The Hon. Catherine Cusack: You've said this three times now.

Dr JOHN KAYE: I have had to say it three times because people keep interjecting. If people did not interject, I probably would have been finished by now.

The Hon. Melinda Pavey: You wouldn't have finished.

Dr JOHN KAYE: Well, maybe not, but I would be closer to it. To be absolutely clear, I am saying this young person will be forced out of the public sector and will not have a career as a firey. She will choose the other option. That is one person. But let us look at this from a policy position rather than from an individual position. Let us look at what this means for our society. It means the pool of talented, engaged, exciting young people who could consider a career in the Fire Brigades will not do so. It is not that they would not want to, but that they will not be able to afford to. They are not being selfish and putting themselves first, they simply will not be able to do it. They will look at this bill, which hopefully will never be an Act, and see that it is an Act to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain Government policies on public sector conditions of employment and for related purposes. They will recognise that they will not be able to sacrifice their pay and conditions.

We are effectively saying, "Let us deny access to the public sector the people who could go elsewhere. It is not that they do not want to go into the public sector and it is not that they are being selfish but, very straightforwardly, they will not be able to afford to go into the public service. We are shutting the gate on quality people in our public sector and when we shut the gate on quality people we shut the gate on quality in our public services. We shut the gate on the social justice that our public services deliver to the people of New South Wales; we shut the gate on a fairer and more just society; we shut the gate on —

The Hon. Robert Borsak: How many more hours?

Dr JOHN KAYE: Just as long as I want to.

The Hon. Robert Borsak: Do you want to beat six hours?

Dr JOHN KAYE: Mr President, I am trying to make a point here and I am finding it increasingly difficult.

The PRESIDENT: Order! I remind members that interjections are disorderly at all times. Dr John Kaye has the call.

Dr JOHN KAYE: Thank you, Mr President. We are shutting the gate on a quality public sector. That is not just bad news for public sector workers, it is also bad news for the community that the public sector serves. It is shocking news for the future of our society in the short term, medium term and long term. What is really going on here is not just the denial of wage justice, not just shutting out an independent umpire, and not just destroying our industrial relations system. It is shutting down public services. It is destroying the quality of our public sector services that provide so importantly for people, communities and households that are disadvantaged, and provide such fundamental social justice services. When we make the public service no longer an attractive career choice for talented young people we are saying it is game over for a just society. It is game over for those who depend on a quality public education system. It is game over for those who depend on a public health system.

This is not just a denial of wage justice, it is a denial of justice to our entire population. As we make it harder to fill those positions, more positions will remain unfilled or will be filled by unqualified people or will go to waste. What is going on here is that the public sector is being thrust into the heart of a trade-off, which will impact on its ability to deliver. It will be a victim to the idea of increased efficiency gains.

I will now talk about the issue of efficiency gains. It is writ large in the Minister's second reading speech and in the announcements of this Government that what is really going to happen is that public sector workers will be forced into a trade-off between, on the one hand, the wage justice they deserve and, on the other hand, efficiency gains. We need to unpack this phrase "efficiency gains". It is one of the great phrases of our society that says almost the opposite of what it means. It has to be said that it now means doing less for less. It is supposed to mean doing more for less. There may have been a stage in the public sector—I do not know—when there were efficiency gains to be had. It is abundantly clear that the squeeze that has been put on the public sector, not just by this Government, but the previous Government and the Greiner, Fahey, Unsworth and Wran governments—has been going on forever. All political parties are guilty of putting the squeeze on the public sector. The big difference now is that if this legislation goes through, we will have given this Government and any government that comes after it a much greater vice with which to put a much greater squeeze on the public sector.

It means that in a trade-off a public sector union has a choice. It can either achieve wage justice for its members or it can protect public services. I have a lot of friends who are teachers or nurses or who work across the public sector. I have friends who work in utilities and friends who are excellent public sector workers in organisations like Sydney Water and Hunter Water. I have friends who work across the board. They say time and again that the thing they hate most is when their salary justice has to be balanced against cutting the quality of service they deliver to the people and community of New South Wales.

Let us be absolutely clear: the overwhelming majority of public sector workers are dedicated to the job they do. They do not want to be in a position where they are trading-off one thing against another. They believe in the quality of the services they deliver. They derive job satisfaction. One of the main reasons people go into the public sector is specifically because they want to be in service. They want to serve the community and in a way that creates greater justice and greater fairness. The trade-off inherent in this legislation is a hard one. There is no opportunity to say to an independent arbitrator, "Hey, wait a minute. This trade-off is unfair." There will be no independent umpire. That trade-off will be a hard one.

It is written in law in a regulation that makes reference to a policy that is buried in a drawer that is just a little above the drawer out of which Nick Greiner and this policy popped in the first place. The policy says very clearly there will be no real gains in the public sector. If they want salary justice, they will have to screw over the services. That is just appalling. It is appalling for the workforce, appalling for the morale of the workforce and absolutely appalling for the people of New South Wales.

These tradeoffs are having impacts on the ability to deliver, which we have seen from previous government policies. The idea of efficiency really means doing less, it means cutting corners and exploiting workers. We should not and cannot continue to run our public sector on the basis of the self-sacrifice of workers. It does not work. It is essentially unstable and bad policy to expect TAFE teachers, school teachers, pre-school workers, firemen or ambulance officers to sacrifice their own pay and conditions; to give of themselves above and beyond that which is reasonable. That is what is happening in the public sector and, to whatever extent it is happening now under the existing wage setting principles, it will get one million times worse under this legislation if it does become an Act to amend the Industrial Relations Commission Act 1996 to give effect to certain government policies on public sector conditions of employment and for related purposes. Members should not entertain letting that happen.

This legislation should not have come before this Chamber. It inherently undermines the future quality of public services. It inherently locks in the expectation that public services will do less, corners will be cut and workers will be exploited. It is effectively saying that people will either go without or they will fork out to pay for private replacements.

[Interruption]

Sorry, what was that?

The PRESIDENT: Order! Members will come to order.

Dr JOHN KAYE: Where were we?

The Hon. Michael Gallacher: That was very cruel. You threw him off there.

Dr JOHN KAYE: No, that is not true. I was thinking about how to get across the point in a Chamber such as this—where a number of people have already signed up to the neoliberal agenda—what it means to undermine services and take away from struggling households their one lifeline: public services? I must say I find that difficult. To me, to The Greens, it is a fundamental given in a civilised society to have well-funded, quality public services.

The legislation will mean that we will no longer be able to get the right people into public services. We will no longer be able to get enough people and enough resources. We will be trading off people versus resources to deliver those services, and we will be exploiting the workforce to the point where we will lose morale. We will see increasing earlier retirement and a loss of accumulated expertise. The legislation, as I said before, is a gun to the head of public services. It says very clearly that public services can be sacrificed on the platter of neoliberal fantasy of balancing the budget while cutting services and charges for the wealthy end of town. This will undermine public services and, in turn, the social, economic and cultural glue that holds our society together will be undermined.

The legislation is a kick in the guts for our society. It is a kick in the guts for a society that is struggling not to fall down into the recesses of the after-shocks of the global financial crisis. It is a kick in the guts for a society that already has far too many people who are struggling. It is hardly surprising that the business council would take such a short-sighted view of society and see this as an opportunity to fatten up the profits of their members. It is hardly surprising that the big end of town would see this as an opportunity for them to make greater profits. People like Mr Cartwright would see this as an opportunity to please their own by taking a cut out of the public sector. But we will leave Mr Cartwright alone for a minute and talk about the Coalition.

The leadership of the Liberal Party and The Nationals is clearly interested in how this will work out. It is clearly interested in what it will mean for their future careers. It is clearly interested in how it will build up its reputation with the big end of town. What better way of making the parties attractive to the post-politic boardrooms than by showing that they are loyal servants? What better way of saying, "Look at what we have delivered for you. We have delivered for you an Act to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions of employment and for related purposes." That is to say, "We have delivered to you a vice to be applied to the head of the public services in order to squeeze out profits." It is not surprising that some Coalition members, some of whom come from the big end of town and others who may have a desire to go to that end of town, are interested in this legislation.

There is also an ideological vector here and, interestingly, it comes from some people who have never had real jobs, people who have never really worked in the business of service—they have not even worked in the big end of town—or worked in a shearer's shed. They have never seen a real job in their lives. Those ideologues look to one man for their leadership: Friederich Hayek. I promised I would get to Margaret Thatcher and here is that moment for interested members. When Margaret Thatcher was battling for the leadership of the Conservative Party in England—at least its members had the honesty to call the party what it is—she walked into the Brighton conference and said, "What platform do we need?" She picked up her copy—or perhaps she stole somebody else's copy—of The Road to Serfdom by Friedrich Hayek. It is significant to this debate to talk about The Road to Serfdom.

The Hon. Catherine Cusack: Then the Irish Republican Army came and blew up the hotel.

Dr JOHN KAYE: That was a tragedy. I want to talk about The Road to Serfdom, by Friedrich Hayek and Free to Choose, by Milton and Rose Friedman. If we are to fully understand where this legislation comes from and how it works, if we are to fully understand what it means and why it is being absurdly prosecuted with such commitment from the Coalition, I think one of the answers lies with Friedrich Hayek and Milton and Rose Friedman. It lies with the idea that if one even say the words "social justice" or tries to define the concept of social justice one will live in chains. It is one of the most absurd propositions of the twentieth century and it corrupted a lot of social thinking throughout the twentieth century. But it is nonetheless a proposition that has in large measure given rise to the ideas of neoliberalism, which are, in turn, part of the intellectual underpinning of this legislation.

Mr David Shoebridge: There is no society they say.

Dr JOHN KAYE: Mr David Shoebridge correctly points out that both Friedrich Hayek and the Friedman's rejected the idea of society. They said we live purely in an economy. Any attempt to interfere with the idea that free competition will produce quality outcomes will inevitably not only undermine the quality outcomes—like the argument of the pure economist—but much worse, it will lead us to serfdom. That would be all very well and good except you need to go to a country such as Finland, where the guiding principle, particularly in the delivery of public services and education, has been one of social justice. One needs to look at many of the Scandinavian countries—not so much Sweden now, but previously—where social justice in the social democratic context was a key determinant not only of a better life and social mobility for those finding it difficult, for those who struggled, but also of a series of exceptionally free societies.

The absurd concept that we cannot have social justice and grassroots democracy is utterly and completely repugnant to anybody who thinks carefully about what social justice means and about what freedom means. It is precisely that ideology that informs foreign affairs, neoconservatism, economics and liberalism that has led us to the point at which so many members of the Coalition Government support this legislation. They believe, entirely falsely, that somehow or other the public sector is caught in the 1970s, to cite the words of the chief executive officer of the New South Wales Business Chamber, Stephen Cartwright. Somehow or other it is backward and an impediment to freedom. I invite people who believe that to go to a public school, spend a day with a fire brigade officer, spend a day with an ambulance driver, spend a day with a welfare worker, or spend a day with somebody who works for Sydney Water or Hunter Water, or somebody who maintains the pipelines, maintains a data system, reads the meters or some other public sector worker.

Mr David Shoebridge: Or a Department of Community Services worker.

Dr JOHN KAYE: That would be somebody who has the incredibly difficult task of dealing with families and households when they completely fall apart. I invite them to see the real world and leave behind their copy of Free to Choose and the Road to Serfdom.

Mr David Shoebridge: They are free to leave them behind.

Dr JOHN KAYE: They are free to leave their copy of the Road to Serfdom behind. They should leave behind their ideological preconceptions about what the real world looks like and they should spend time with the people I have mentioned. Then they should ask themselves the question: Is it really true that those people I have mentioned, whose lives are determined by the concept of social justice, whose commitment to delivering a just and successful society through quality public services, somehow or other are bonding us into slavery and serfdom? It is utterly absurd to say that a public school teacher or a TAFE teacher is doing that when their lives are about freeing people and creating freedom.

When I look at the freedom created by people who build and maintain our sewers and our water supply system and when I think about the great social democratic experiment of which Australia remains a part, although we are hanging on by a thread, and to which this legislation will do great damage, I cannot help but feel nauseated by the whole ideology of neoliberalism and the damage that it is attempting to do by introduction of a bill for an Act to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions of employment and for related purposes.

In discussing and defining social justice and in not consciously pursuing social justice through quality public services, we create a freer society, not a less free society. The whole underpinning of neoliberalism is counterfactual to reality. It stands contradicted by successful social democratic societies that achieve great economic and social freedom as well as freedom from oppression. It can only be the case that those who think otherwise have not spent time on the front line. The third reason is that The Greens say this legislation is old-fashioned class warfare. I am not accusing all people who vote in favour of the bill of being guilty of class warfare, but we cannot help but smell the burning faggots of class warfare in this legislation.

We cannot help but feel that the old view lives somewhere deep in the recesses not just of the New South Wales Business Chamber but also in the Coalition. It is the belief that somehow or other working-class folk deserve a rawer deal than people who are sensible enough to be born wealthy. That is a repugnant idea, but that is what this legislation says. The bill says that people who earn their living through hard work as a public sector teacher—and it is hard work—or who earn their living by being a TAFE teacher or by working in the public sector in the Fire Brigade or even the water delivery and sewage system are not worthy of decent pay and working conditions. My first job was working in the sewer system in Victoria for what was then the Melbourne Metropolitan Board of Works.

The Hon. Melinda Pavey: What? I thought you worked on the family farm.

Dr JOHN KAYE: It was my first paid job. It was my first job involving any remuneration.

The Hon. Michael Gallacher: Nice recovery.

Dr JOHN KAYE: It happens to be true, which is a huge advantage.

The Hon. Michael Gallacher: Even better.

Dr JOHN KAYE: That is the scary thing.

The PRESIDENT: Order! There is far too much audible conversation in the Chamber. I remind members that, as today is a continuation of yesterday's sitting, all members who were called to order yesterday remain on those calls to order.

Dr JOHN KAYE: This legislation is an example of old-fashioned class warfare at its worst. The Melbourne Metropolitan Board of Works was a public sector organisation. It was a gravity-fed sewer well system. It was hard but rewarding work. I knew I was participating in a fundamental function within society. It was good rewarding work because I knew we were serving our community. However, I have to say it was work that would not have been looked upon fondly by those who wish to engage in class warfare. It is true I did not do it for very long and I acknowledge that it is not exactly my background, but I have to say that it was an education. What we are seeing here is a genetic predisposition that is trying to maintain wealth disparity within our society and to keep the serving class in their place.

[Interruption]

I heard the groan from the Government side.

The Hon. Melinda Pavey: No, it came from behind you.

Dr JOHN KAYE: There may have been groans behind me as well. I do not really care. Let me be absolutely clear that this bill for an Act to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions of employment and for related purposes is about stripping pay and conditions from people who work in important jobs. The jobs are those that people whose families are privileged would not necessarily have. They would not be jobs that people would have whose families have plenty of money floating around, but they are good, decent and honourable jobs. What is going on here is very straightforward. This is a bill for an Act to strip public sector workers of the things that make life worth living, such as income and working conditions that give them a decent life. It is absolutely clear that this is draconian legislation. It is draconian because it has everything to do with Draco from the seventh century BC in Athens who was an extremely harsh law-giver.

The Hon. Shaoquett Moselmane: He was not a dragon.

Dr JOHN KAYE: It had nothing to do with dragons. If you ask the question: Are there dragons in this legislation? The answer is: Probably not. But if you ask the question: Is this legislation draconian? Then the answer is yes. It is draconian in the sense that "draconian" is an adjective that means great severity. It derives from Draco, and Draco was an Athenian law scribe under whom small offences—in this context, a small offence would be being a member of the working class, I presume—warranted heavy penalties. This legislation is about draconian laws. This is purely and simply draconian law.

I heard the Premier interviewed on ABC radio early this morning. The interview has since appeared on ABC Online. Mr Shoebridge was also interviewed, as indeed he should have been. Premier Barry O'Farrell is purportedly undaunted by the task. The task that Mr O'Farrell was undaunted by was the one that my colleague Mr Shoebridge mentioned before: If the Government thinks it is going to have it easy and just shove it through with no public debate, no time for the unions and the Committee to organise, I think it has got another think coming. Apparently Premier Barry O'Farrell was undaunted by the tactic. I do not think it was a tactic; I think it was a statement of truth. He said, "What I am saying to the members of the upper House is it's time to respect the mandate." I suggest that members of the House google the word "mandate". A filter might be needed so that unwanted material is screened. What the Premier meant by mandate is that because he won the big victory, and you cannot take away from the fact that a lot of people voted for him, although more importantly a lot of people voted against him—

The Hon. Catherine Cusack: You noticed?

Dr JOHN KAYE: Well, that is a really interesting proposition. How many people actually went to the polling booths with enthusiasm for WorkChoices? The big question in my mind is: What does he mean? Yes, he did win a big victory and we have to say to him: Good on you, Barry. Well done, mate. But did he win that victory, or was that victory actually given to him?

Mr David Shoebridge: He was the Bradbury of New South Wales.

Dr JOHN KAYE: Bradbury?

Mr David Shoebridge: The one who sailed through after the other skaters fell over.

The Hon. Catherine Cusack: Are you arguing that he does not have a mandate?

Dr JOHN KAYE: Hang on. You are anticipating my remarks. My approach is much more sophisticated than that. So let us go through it carefully. The Minister for Police laughs at what I just said. That is fine, he is more than entitled to do so, but let us see what he thinks at the end of what we have got to say here. Yes, Barry O'Farrell has won a victory. That is to say, many people voted for him. His argument is: Hey folks, I, Barry Clarence O'Farrell, won this huge victory. A lot of people voted for me. Therefore, I can get through any legislation I like and the upper House is being obstructionist and obstreperous by standing in our way. That is a bad thing. They should get out of our way. They should just roll over and say, "It was a big election victory so you can have your legislation."

There are two major problems with that statement. Firstly, it is unsound in fact. Secondly, it is unsound in theory. It does not stand up to a theoretical examination of what a mandate means in a bicameral Parliament. Unlike you, Mr President—you are well aware of it since you have been a great defender of the rights of the upper House, and I have admired you for that as Opposition Whip and now as President—Mr O'Farrell seems to forget that this is a bicameral Parliament. A mandate has a far more complex meaning in a Parliament that has two Chambers, a lower House and an upper House. Let us go first of all to my assertion which I hope to convince you of that his saying he won a big victory and that he has a mandate is unsound in fact. Let us be clear: it was never a policy.

The Hon. Walt Secord: Never mentioned.

Dr JOHN KAYE: I accept the interjection from Mr Walt Secord, because he has spent a lot of time around elections and he would have spent an awful lot of time during the last election looking at the policies of the Government. I am not speculating as to his motives but I have no doubt that if he had found this policy he would have made sure that everybody knew about it. I must say that there are people in my own party, The Greens, who spent a lot of time looking at all policies and the debate that was going on and I have no doubt that if this policy had been available to the public there would have been a number of people who would have made sure that we knew about it by the mechanism of Twitter or via any number of blog sites. But we did not know.

I played an active role in the election, as did Mr David Shoebridge, Ms Cate Faehrmann, Mr Jeremy Buckingham, and Ms Jan Barham. In all of our many discussions about policy and where policy was going never once was this mentioned. Believe me, you would have known if it was because you would have seen the media release. You would have heard David Shoebridge on radio in the morning, you would have seen the print, you would have seen the leaflets, you would have seen the shebang. We would have recognised what this was immediately: WorkNoChoices New South Wales. We would have blown the whistle. I have no doubt Mr Secord would have done the same.

The Hon. Walt Secord: Two manifestos—nothing.

Dr JOHN KAYE: We will get to the manifestos, but there was nothing. I have no doubt that Unions NSW, the Australian Services Union, the Teachers Federation, the fire brigades union, and the Public Service Association—

The Hon. Michael Gallacher: Point of order: Can I assist the member by reminding him that he must address the Chair, not the gallery?

The ASSISTANT-PRESIDENT (Reverend the Hon. Fred Nile): Order! This has been a long debate. However, I remind Dr John Kaye that the standing orders require him to direct his remarks through the Chair.

Dr JOHN KAYE: I will address my remarks to the Chair. I appreciate your ruling. There are any number of unions that would have found it and would have quite rightly fulfilled their obligation not only to their members but to members in all public sector unions around New South Wales as well as to all recipients of public services around New South Wales. They would have made it absolutely clear that this was what was germinating in an O'Farrell-Stoner Government, in a Liberal-Nationals Government. There are two germane documents. I certainly will not go through them, because that would be tedious repetition.

The Hon. Walt Secord: Touch on them.

Dr JOHN KAYE: I will take Mr Secord's advice. They are important documents. The first one is the Five Point Action Plan. I make no comment on the morality of doing this. I think political parties having an action plan, having a contract with the people of New South Wales and communicating what they are going to do is a very good thing and is to be welcomed. As much as I disagree with much of the content, I think it is good that the Coalition laid this out.

I am referring to this document in relation to the point about a mandate, whether this legislation had a mandate. The five points relate to rebuilding the New South Wales economy, returning quality services, renovating infrastructure, restoring accountability and protecting our local environment. If the Coalition has a mandate, somewhere in this document we would find reference to a bill for this Act. Perhaps we would find words written more poetically or more in the language of an election campaign, but somewhere in there would be words which communicated the idea that within the first 100 days of government an O'Farrell-Stoner Government would introduce a bill for an Act—

Mr David Shoebridge: It is a bigger Coalition now.

Dr JOHN KAYE: We will get to that in a minute. That is on my agenda. There would be something in this Five Point Action Plan that indicated the Government's intention to introduce a bill for an Act to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain Government policies on public sector conditions of employment, and for related purposes. There would be something in this plan that went towards it. But where would we find it?

Is it under "Rebuilding the New South Wales economy"? The Coalition was going to lower taxes and create 100,000 new jobs, 40,000 new jobs in the regions. It is a long step from lowering taxes to destroying the independence of the independent umpire and introducing legislation that will drive the system of industrial relations in New South Wales to the brink. The next statement said that there would be no offshore outsourcing of public sector jobs or services. An interesting debate could be had about the use of an adjective as a qualifier or a modifier. I will not go into that now.

The Coalition made promises on electricity rebates and not having plans to sell Sydney Water or Hunter Water. It said that it had no plans to sell Sydney Water or Hunter Water, not that it would not sell. Let us hope it did not find something from underneath where Mr Greiner was sitting, cramped down in the lower drawer for all those years from 1992 until 2011. It says it would support small business by cutting red tape and they would double tourism. I do not understand why it has to gut the public service, kill public sector employees' pay and conditions and put them in direct competition with the budget bottom line to do this. The second main heading in the Five Point Action Plan is "Return quality services".

Mr David Shoebridge: They are going to return them to Victoria.

Dr JOHN KAYE: Mr David Shoebridge is smarter than I am. He understands that returning quality services means returning them out of the State. I thought it meant to improve or restore. Perhaps it should have been "restore". Words have different meanings and I have misinterpreted the statement. I read it to mean restore quality services. The Coalition said it would return quality services in areas such as health, transport, education and police. How can it do that and at the same time gut the pay and conditions of public sector workers, which would make it almost impossible for the public sector to recruit new people? The Government is going to drive people out of the public sector and destroy morale, force them to make legislated trade-offs between their pay and conditions and the quality of public services.

The Five Point Action Plan continues with the Coalition saying it would provide $3 billion to fix "our" hospitals. I hope that includes everyone's hospitals. It said it would employ 900 more teachers. Unfortunately, it did not say public sector teachers. We are still trying to get to the bottom of that. We welcome more public sector teachers, but they must be paid appropriately. The Government promised an integrated transport authority. The next statement is a good one. It makes one wonder how the Government got from this statement to a bill to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions of employment and for related purposes. The statement is, "The NSW Liberals support a strong and independent public service." What is missing? The Nationals are missing. Elsewhere the statement refers to "the Coalition" but in this statement The Nationals are missing.

If I said to Mr Walt Secord, "The NSW Liberals would support a strong and independent public service", would Mr Secord think that they are going to gut the public service and put public sector employees pay and conditions in direct competition with the budget bottom line? He would not. No reasonable person would adduce from that statement that the Government would do that to the public sector. The words "strong and independent" are contrary to the type of public service that would result from the Industrial Relations Amendment (Public Sector Conditions of Employment) Bill 2011. The Government cannot give effect to its proposed government policies on public sector conditions of employment and at the same time say it supports a strong and independent public service.

Any claim by the Government of a mandate to introduce this legislation is shot down by this statement. It is shot down by the statement about returning quality services. It is shot down by a promise that Mr Barry O'Farrell signed off on to support a strong and independent public service. That was a promise. The next statement is that the Government would hire more front-line staff. The Government will not be able to hire more front-line staff if it pays them peanuts. It will not happen. The Government cannot employ more front-line fire brigade staff, more front-line teachers, more front-line Public Service Association members and more front-line ambulance officers and at the same time not pay them much. The Coalition says it will renovate infrastructure. I will not go through the details because that would be close to boring repetition. The Government cannot renovate infrastructure and at the same time devastate the public service. The next statement is a good one. The Coalition says it will restore accountability. It says that it will give the people a say on issues affecting their local community.

Mr David Shoebridge: We will put this off to the general purpose standing committee.

Dr JOHN KAYE: Mr David Shoebridge is right. I am persuaded by his logic. The only thing to do is to whip this off to General Purpose Standing Committee No. 1. I sat on that committee, as did Mr David Shoebridge. We worked closely with the man who is now the Minister for Finance and Services. As I said earlier, I hardly know him. The Coalition said it will restore accountability. How does the Government restore accountability when it suddenly introduces legislation that it has not told anyone about? They go to the election as a soft, furry, centre right government. When they get into office they rip off their clothes and Captain Neoliberal introduces legislation that undermines the rights of the public sector.

The Coalition said that it would be honest and accountable. Never believe politicians when they say they are honest because there are two logical conclusions: one, they are being honest and the statement is true, two, they are liars and the statement is not true. It is a zero information statement. If that statement were put in a document of The Greens I would have red-penned or green-penned it out immediately. The Coalition said it would raise ministerial standards of behaviour. It did so by sneaking in a piece of legislation that no-one knew about. The Coalition said that it would regulate lobbyists and ban success fees. The Government has fulfilled that commitment, with our support.

The last item in the Liberal-Nationals Five Point Action Plan is that it would protect our local environment. The Government will do so by cutting the pay and conditions of the 10,014 New South Wales people who worked in the area of Environment, Climate Change and Water in 2010. The Government is going to balance its budget and deliver money to the big end of town by cutting the pay and conditions of those public sector workers. That is how it will protect the environment.

Mr David Shoebridge: The new Coalition team wants to cut 9,000 jobs—the new minor Coalition team, the Shooters.

Dr JOHN KAYE: I will get to that. Having read the Five Point Action Plan, we can clearly see that the Government does not have a mandate to introduce this legislation. The Coalition cannot claim a mandate when it said the opposite in its Five Point Action Plan. Perhaps it did not really mean its statements in the Five Point Action Plan. Perhaps it was just a summary version. I have spent time struggling in academia. I acknowledge my membership of the National Tertiary Education Union, which is not affected by these changes but which, to my eternal pride, has been campaigning to stop this legislation. I cannot say how much the solidarity of my union and so many other unions, such as the Construction, Forestry, Mining and Energy Union, has meant to me personally and to the hundreds of thousands of working people around New South Wales who will be affected by this legislation. They have stood up for each other and shown solidarity.

I return to the source document, the New South Wales Government's 100 Day Action Plan. I know we are still in the 100 days because I am constantly told that this legislation is good legislation and because it was in this document we have to get it through. I do not wish to go through this lengthy document but, interestingly, it has the same headings. This is a much bigger document. Whereas rebuilding the economy in the Five Day Action Plan had six dot points, the 100 Day Action Plan has ten dot points. Maybe somewhere in this document we will find the mandate, but I doubt it.

The Government was going to pass legislation to create 100,000 jobs through its Jobs Action Plan to take effect from July 2010. Maybe that will happen, but the 317,314 full-time equivalent workers in the public sector will not see any benefit: their wages and conditions will be devastated, their union will be shut out from the Industrial Relations Commission and the Industrial Relations Commission will be undermined as an independent body and turned into the poodle of the Government. The next heading is "Return Quality Services". I love it. Unfortunately, Mr David Shoebridge is no longer in the Chamber.

The Hon. Shaoquett Moselmane: He's gone to General Purpose Standing Committee No. 1.

Dr JOHN KAYE: He has gone to General Purpose Standing Committee No 1, has he?

The Hon. Shaoquett Moselmane: No.

Dr JOHN KAYE: We will send the Hon. Shaoquett Moselmane to General Purpose Standing Committee No. 1 if he keeps interjecting. I will not go through the seven points under the heading "Return Quality Services". Some of them refer to the MyZone Ticketing system from Central to Lilyfield. That is terrific: I have a friend in Lilyfield so I might try that sometime. The next point is "Introduce legislation to strengthen police powers." We have had that. The next is "Legislation to toughen laws for graffiti". I do not know how that is a quality service, but somehow that is the Coalition's example of quality services. Then comes the literacy and numeracy plan, and health legislation to establish district health boards. By the way, that was just a change of name—fascinating. The next point is "Better hospitals". This document contains nothing, not a scintilla or suggestion, about a bill for an Act to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions of employment, and for related purposes.

I look forward to the Minister's speech in reply, whenever that might be. I hope my concerns are communicated to the Minister. We need to understand the mandate. Government members say that 75 per cent of the New South Wales voting population did not vote for the Labor Party. Coalition members picked up a swag of seats: good on them and good luck. Politics is a lot about luck. There is no mandate here. If a party does not mention something it should not then say, "Oh, that policy. Did we leave that out? Silly us." A government cannot do that. This Government does not have a mandate. Absolutely no mandate exists when the subject is not talked about before the election. Clearly, the 322,452 full-time equivalent workers in the public sector and the 368,185 head count of people who work in the public sector and make up about 10 per cent of the voting population did not know this was going to happen.

They had no inkling. We would have heard if there was, and there was not. This bill is not a mandate. A mandate cannot be claimed by the Government. It is absolute nonsense to try to imply that this bill has a mandate. Why did the Government not mention it? If it was thinking about mentioning and did not, two possibilities arise. The first may be, "Oh, my goodness we should do this" after the Government was elected, as if a light was switched on. As if the Government was not busy enough with its 100 Day Action Plan but, overwhelmed by the amount of work it had to do getting its staff and activities together, it came up with this bill. The second possibility is that it was with Nick Greiner mouldering away since 1992, waiting to pop out and say, "Hi, I'm Mr Neoliberalism man. Here I am. Implement me." If that is true, why did the Government not mention it? Because it had the living daylights scared out of it by the Your Rights at Work campaign.

When working people in Australia and around New South Wales say, "Hey, wait a minute, you can't take away our rights at work" elections are lost. In 2007 John Howard got booted out of his electorate as well as booted out as Prime Minister—the first since Bruce in 1929. That is the scary proposition. It knew that it would have lost the election if it had said, "You know that kind of nice, soft, centre-right stuff? It's not true. We're actually John Howardian WorkChoices neoliberals. We have a plan for New South Wales: to bring in WorkNoChoices New South Wales 2011." And it would have deserved to lose.

There is no mandate. How many of the 4.3 million voters, the 75 per cent who did not vote Labor, would have looked somewhere else to vote if they knew this was coming? If they knew about this insult not just to public sector workers but to working people around New South Wales and Australia, how many of them would have voted for the Coalition? A government does not have a mandate if it keeps the issue hidden. This bill is just a sneaky plan. The two are extremely different. Labor was punished at the election in large measure because of its power sell-off. I note the Chamber door being slammed. Of course, the power sell-off was terrible policy: it was overwhelmingly bad. The people of New South Wales were not opposed to just that particular power sell-off; they were opposed, as they should have been, to any power sell-off. They were most annoyed by Labor's attempt to subvert democracy and claim a mandate when there was no mention of a power sell-off for the 2007 election when Morris Iemma was re-elected.

The Labor Party was punished in 2011 and so too will this Government be if it gets away with passing this bill. If The Nationals do not stand up for their communities and say loudly to their big brothers and sisters in the Coalition, "This is not acceptable" I have to say, and I am thrilled to say, that they will suffer the same fate as John Howard did in the 2007 election. It will be just recompense for misleading the people of New South Wales and for adding insult to injury by Premier Barry O'Farrell claiming a mandate when he does not have one. Politics releases all sorts of cute surprises. This morning when I was thinking about a few things I might say in my contribution I found a media release from the Premier's office. The heading was "Carbon Combet Gets It Wrong: No Wonder Labor Is out of Touch." The Coalition likes alliteration: "Carbon Combet" is flirting at the edge with the climate-denial brigade, but that is irrelevant. The opening line of this media release from Premier Barry O'Farrell states:
      What hole was Greg Combet hiding in during the state election campaign if he was unaware the NSW Liberals & Nationals' opposed Labor's carbon tax, NSW Premier Barry O'Farrell asked ...

What hole was he hiding in? The same hole I was in. The same hole you were in, Mr President. The same hole 4.3 million New South Wales voters were in. The same hole where there was no mention of this legislation. We did not know this was going to be introduced because it was never mentioned. The Premier cannot say Greg Combet was hiding in a hole when the Coalition put all of New South Wales into a hole. The absence of a mandate for this legislation is established in fact. It is important when examining a bicameral system of government that we ask the deeper theoretical question about the meaning of mandate—the deeper theoretical question that goes to the very role of the upper House.

The deeper theoretical question is: What does it mean in a bicameral Parliament, a two-House Parliament with an upper House, to have a mandate? There is a small matter of the Constitution. The Constitution states loudly and clearly that for legislation to be passed it has to go through the lower House and the upper House. There is no mandate unless it gets through the upper House. The mandate exists only inasmuch as one can get a majority in the upper House. In a bicameral Parliament supported by the Constitution it must be understood that there is no mandate—no theoretical pinning behind a mandate unless and until that legislation is passed through the upper House.

Presumably, as an earlier interjection suggested, the Premier dictated to the upper House on the basis that he had a mandate for something that was never mentioned during the election. If it had been mentioned we would all have known about it. To claim that he has a mandate is bad, but then to say, "Because we have the numbers in the lower House we can get it through the upper House", is also bad. The Greens have a clear mandate—the same mandate that had us voting against WorkChoices and against the Rudd Government's WorkChoices lite. It is the same mandate that had us committed to dismantling the Australian Building Construction Commission and to standing up for working people when their rights were under attack, in particular, when they were under attack from a neoliberal agenda that wanted to destroy not only the public sector and the industrial relations system but also the very fabric of our society.

Those who voted for The Greens were aware that we would have done those things. Nobody could claim that we kept hidden our position on industrial relations. Nobody could ever say that we did not go to the election with a strong policy in support of the right of public sector workers and all workers to bargain collectively, to stand up to bullying, to be able to get together and to represent themselves before an independent umpire—not poodle police but a fair and independent umpire whose arms and legs are not shackled by legislation. This legislation will amend the Industrial Relations Action 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions of employment and for related purposes. We have a very clear mandate.

The Hon. Shaoquett Moselmane: To oppose it.

Dr JOHN KAYE: Our mandate is to oppose this legislation. I think the Australian Labor Party and the Christian Democratic Party have a mandate to oppose this legislation. Far too many people who attend churches—they are entitled to subscribe to their view of the world—and who are dependent on public services expect the Christian Democratic Party to stand up for strong public sector services. They expect them to do so because Reverend the Hon. Fred Nile and his party stood up for strong public services. Over the years I have had some fairly profound disagreements with Reverend the Hon. Fred Nile but I and Mr David Shoebridge worked closely with him on General Purpose Standing Committee No. 1 to expose and to attempt to derail the electricity privatisation because it was bad for families and households. It was bad policy and it was a rip-off that would have a long-term economic impact on the people of New South Wales. If the Christian Democratic Party claims it has some kind of assumed or presumptive mandate because the Liberal-Nationals Government got a big vote in the lower House, I have to say that I think it is wrong. It has to understand that the mandate in this Chamber is different.

The mandate for The Greens, the Labor Party and, I would argue, the Christian Democratic Party and possibly also the Shooters and Fishers Party, is to stand up and to say, "We will not sacrifice public sector workers to the neoliberal fantasy that one can simultaneously have a balanced budget and cut taxes to the big end of town without making life abysmal for those who depend on public services to make their lives work." The theoretical problem with claiming a mandate is that there is no threshold test. We need to dig down because part of the issue that has been argued, which I will demonstrate when I refer later to the speeches of the Hon. Robert Borsak and Reverend the Hon. Fred Nile, is that there is no threshold for a mandate. How big a vote does it have to be and to whom does that vote go?

Some people probably voted for The Greens because we are strong and trenchant supporters of public education, and proudly so; or because we stood up for public sector fire services; or because we stood up for the rights of Indigenous Australians, and did so proudly; or because of our stand on global warming; or because uniquely, along with the Christian Democratic Party, we stand up and say no to more poker machines. There has to be a limit on the number of poker machines and a mandatory pre-commitment. There is a plethora of reasons why people vote for a political party. To claim a mandate for one of those in a bicameral constitutional democracy is a nonsense; it makes no sense. It is complete and utter rubbish. There is no real issue about a mandate: it is subjective and it cannot be measured. There is no threshold test. The real question is that they do not have a mandate because they did not mention it.

I have been through the documents but members of the Coalition kept the mandate hidden. It was in the bottom drawer wedged somewhere between Nick Greiner before they pulled him, and something else equally unpleasant, out the drawer and they landed on us. I do not believe that a single union, including Unions NSW, the Australian Services Union, the Fire Brigades Union, the Teachers Federation, the Public Service Association, the Association of Professional Engineers or Scientists and Managers, Australia, was consulted. I know that the National Tertiary Education Union was not consulted. Nobody was consulted. If the Government wants to claim a mandate there has to be debate.

Debate in this Chamber is important which is why The Greens support the motion moved by the Hon. Sophie Cotsis, the Opposition spokesperson on industrial relations, to delete all words after the word "That" in the second reading motion, and to insert instead, "A General Purpose Standing Order Committee No. 1 reference". This legislation must be sent to General Purpose Standing Committee No. 1 for public inquiry. I am glad that the Minister for Finance and Services is in the Chamber as I have many fond memories of the time spent last December—and in January and February this year—on the inquiry conducted by General Purpose Standing Committee No. 1 into the appalling gentrader transactions. I was impressed by the Hon. Greg Pearce's ability to express the need for accountability. He talked about what a public debate meant and he argued in the media and before the committee of the need for the inquiry to call witnesses to expose the bad gentrader transaction.

The Hon. Greg Pearce was a great and powerful ally. I have said before to the Minister for Finance and Services, and I say it again, "Sometimes I hardly know you. I hardly know what you have become since you were elected to office." Only eight short weeks ago the Minister would have stood shoulder-to-shoulder with The Greens and the Christian Democratic Party and said loudly, "This legislation has to go to General Purpose Standing Committee No. 1 for public inquiry." It was suggested earlier in debate that we do not have to have a public inquiry because we are having a parliamentary debate now. This parliamentary debate is very important, but we are but 42 members of the community, albeit elected to represent the community, and we are of limited capacity, of limited intelligence and of limited ability to represent the people of New South Wales.

If we truly believe in accountability—and the Government's first 100 Day Action Plan talks specifically about restoring accountability—we will give this hotly contested legislation, this bitterly opposed legislation, the airing it deserves before a General Purpose Standing Committee No. 1 hearing. That committee would be chaired by Reverend the Hon. Fred Nile. We are not trying to stack the committee with Greens and Left Labor; the committee would have as members the Hon. Eric Roozendaal and Mr David Shoebridge from the Greens. It would not be a committee that would provide a predetermined answer. When the Minister and I were members of General Purpose Standing Committee No. 1, it proved to be an opportunity for the people of New South Wales to say how offended they were that they had been lied to by the Iemma Government in the 2007 election; how offended they were that their public sector services in power were being handed over to the private sector; and how offended they were by the gentrader contracts that would do nothing but strip out value from the public sector.

Let us expose this legislation to the same degree of accountability. Let the Government hold itself to the same level of accountability as it said it would in its two pre-election documents. Let the Government hold itself to the same level of accountability that the Greens and the Christian Democratic Party worked so closely with the Government to achieve in late 2010 and early 2011 with such important consequences—unpredicted consequences. When the gentrader inquiry began I had no idea that we would discover that in any one year the gentrader contracts could return the grand sum of zero dollars to the people of New South Wales. I did not know that, and I was a trenchant critic of the privatisation.

What will happen if this legislation is allowed to be given an airing in front of General Purpose Standing Committee No. 1; if the union movement and industrial relations experts such as John Buchanan are allowed to come forward and have a say; if rank and file teachers, teachers on the ground—good and decent teachers who spend their lives working for the future of the people of New South Wales—are allowed to come forward and say clearly to the committee what this legislation means to them and they are allowed to say what this will mean for their future careers and what it will mean for their capacity to recruit people; and if the Fire Brigade Union is allowed to come before the committee and bring some of its brave and decent members to tell the inquiry what this means? I wonder what Coalition members will think about the legislation then, because I know, and the Minister for Finance and Services knows full well, that when we exposed the gentrader contracts at that same committee in early 2011, in very difficult circumstances, Government members on the committee were moved—they knew full well that it was a bad deal. Truth moves people.

The motion moved by the Hon. Sophie Cotsis will enable us to expose this issue to some harsh reality. Let us shine a light on it. Let us enable real working people whose lives will be torn apart by this proposal to come forward. Let us enable union officials, who will no longer find it worthwhile to make the effort and to spend money to bring forward a case in the Industrial Relations Commission because the Industrial Relations Commission is no longer independent, to come forward. Let us get some lawyers—heaven help us!—before the inquiry to give us advice, to tell us what this legislation will mean, not only its impacts but also its underpinning for law and order, the independence of the judiciary and the future of industrial relations in this State.

We should get some economists before the inquiry to tell us what it will mean to take away the underpinning of a functioning industrial relations system when a new government, the new kid on the block, comes in and finds a functioning system of industrial relations—a system that connects workers with their unions and employers and allows disputes to be argued—and then kicks that out. We must not let that happen. The Hon. Sophie Cotsis said, and she is 100 per cent spot-on, that we should not let the Government do that; that we should hold off on this and seek some advice. Would one seriously consider radical surgery without getting the opinion of a surgeon? We would not do that because we are not silly. Passing this legislation is dangerous and it is silly. It will expose New South Wales to the sorts of risks that it does not need—economic risks and social justice risks—and it will impact on the maintenance of our important infrastructure, our water system and our sewerage system. What will it do to Hunter Water? What will it do to Sydney Water? What will it do to the capacity of our public education system?

We cannot pass this legislation. It would be conducting a mass experiment on the economic future of this State. It would be conducting an experiment, the outcome of which is completely unknown. Yet we are going to do it; we are going to ram it through. In addition to the many questions that I have put to the Minister, I ask him to address this issue in his speech in reply. What harm would there be in letting this wait until the beginning of the spring session? Here we are at the absolute tail-end of the autumn session, late on a Friday afternoon, debating legislation after we were here until 3.25 a.m. At 3.25 a.m. I was very impressed by the speeches I heard: the remarkable speech of my colleague Mr David Shoebridge, the incredible speech of the Hon. Sophie Cotsis earlier in the day and the superb use of statistics by Mr Greg Donnelly—

The Hon. Cate Faehrmann: I love statistics, good statistics.

Dr JOHN KAYE: The Hon. Cate Faehrmann points out that she loves statistics.

The Hon. Catherine Cusack: The Hon. Greg Donnelly's contribution was not superb.

Dr JOHN KAYE: Mr Greg Donnelly's presentation was superb—it was superb in its total commitment to public sector workers. The member knows full well that I have many and varied disagreements with Mr Greg Donnelly—some of them get to be quite serious and some of them occurred while we were on General Purpose Standing Committee No. 1—but his contribution last night showed a dogged commitment to the rights of working people. Let us move beyond the partisan: let us move to recognise the importance of people's commitments and let us heed the warning that Mr Greg Donnelly gave from his experience with the Shop, Distributive and Allied Employees Association—a union that is not at all affected by this legislation. Mr Greg Donnelly's commitment was like the solidarity of the union to which I am enormously proud to belong—the National Tertiary Education Union. I urge members to support sending this legislation to General Purpose Standing Committee No. 1 for public inquiry.

I turn now to the contributions of Opposition crossbenchers. I note that there has been a change in terminology: The Greens are now excluded from the crossbenches. I guess we are having a bit of an identity crisis, but "crossbenches" now seems to refer to the Shooters and Fishers Party and the Christian Democratic Party.

The Hon. Cate Faehrmann: They are just the coalition.

Dr JOHN KAYE: Ms Cate Faehrmann made an important point.

The Hon. Cate Faehrmann: The deals have been done.

Dr JOHN KAYE: The deals have been done. Let us go through the contribution of the Hon. Robert Borsak which he made at 12.15 a.m. The Hon. Robert Borsak clearly said:
      This is not to say that the current Government will be afforded a blank cheque in this House—

I was pleased to hear that; I would hate to think the Government is being given a blank cheque—
      but it does have the right to implement its legislative agenda.
Where does that right come from?

The Hon. Cate Faehrmann: What deals have been done?

Dr JOHN KAYE: I will get to the deals—I think we will have some fun with them—but first I will deal with the issue of mandate. Effectively, the crossbenchers are repeating the nonsense that Mr O'Farrell said on ABC radio this morning:
      What I am saying to the members of the upper House—
that is all 42 of us—
      is that it's time to respect the mandate.
So in anticipation of Mr O'Farrell saying that, the Hon. Robert Borsak said that the Government has a right to implement its legislative agenda. I am sorry to say that the Hon. Robert Borsak is 100 per cent right. No government has a right to implement anything if it cannot get the numbers in the upper House. In this bicameral democracy legislation must be passed by both Houses. This House not only has a right to examine this legislation. As the representatives of 317,314 public sector workers and the 7.2 million citizens of this State who depend on the services provided by those workers, we have a hard-core obligation not to accept this legislation. We certainly do not have any obligation to the Government.

The Hon. John Ajaka: That came from the Hon. Amanda Fazio. The Labor-Greens coalition is working well.

Dr JOHN KAYE: I acknowledge the interjection of the Hon. John Ajaka. It is fascinating to hear the Hon. John Ajaka talk about a Labor-Greens coalition, given that the Christian Democrats and the members of the Shooters and Fishers Party talked about being involved in negotiations.

The Hon. Cate Faehrmann: Stitched up for the next four years.

Dr JOHN KAYE: If members want to talk about a stitched up deal, I will tell them about it. Then I will tell them what the deal means. What were the counter offers in the deal? I will not be distracted by interjections. First, let us talk about the idea that this House has an obligation to respect the right to implement a legislative agenda. As I said earlier, the Government's legislative agenda was hidden. It was a neoliberal agenda in a State that is not dominated by liberalism. Perhaps some of the media introduced the neoliberalism. Members know that the people of New South Wales do not want privatisation, public services screwed down and the destruction of public sector conditions.

The Hon. Cate Faehrmann: It's what they are getting.

Dr JOHN KAYE: It is what they will get under this deal. The current Government campaigned on fiscal responsibility. The Hon. Robert Borsak said that this is all about fiscal responsibility—

The Hon. Cate Faehrmann: At the expense of workers.

Dr JOHN KAYE: —at the expense of workers but, equally importantly, at the expense of the future efficiency of our economy and the economy's ability to deliver social justice to those who cannot afford private services. The Hon. Robert Borsak argued that it is fiscal responsibility. Members should bear in mind that fiscal responsibility was not mentioned in the Government's 100 Day Action Plan, the Five Point Plan and all the other plans. I thought the Government Whip was opposed to plans. Indeed, he likened plans to fascism recently. Leaving that aside, the Government did not mention fiscal responsibility in any of its plans.

The Hon. Cate Faehrmann: Shame.

Dr JOHN KAYE: It is a shame. The Government did not say a word about fiscal responsibility. Be that as it may, perhaps it is lurking in the bottom drawer, squeezed against Nick Greiner.

The Hon. Cate Faehrmann: They've gone into a big bottom drawer.

Dr JOHN KAYE: Yes, it is a drawer with a big bottom.

Mr David Shoebridge: There's a song in that.

Dr JOHN KAYE: There is a song in that, but I promise not to sing or dance to it. The Hon. Robert Borsak, who has been an accountant for more than 40 years—I do not doubt that—said he has looked at the books and they do not present a pretty position or picture for the citizens of New South Wales.

The Hon. Cate Faehrmann: No pretty picture opposite.

Dr JOHN KAYE: Let us be absolutely clear about what fiscal responsibility means: balancing the budget bottom line. There are many different ways to balance the budget bottom line. Members will recall that earlier I talked about the big wooden box with the filigreed hinges that the Secretary to the Treasury presented to the Treasurer on his first day; the Treasurer would open the box and find a fiscal black hole. So we should not be too worried about fiscal responsibility.

The Hon. Amanda Fazio: Point of order: I am sorry, I think my point of order is redundant. I intended to draw your attention to the fact that the Hon. Trevor Khan was asleep in the Chamber, but when I called "point of order" he awoke.

The Hon. Trevor Khan: That is offensive and untrue.

The Hon. John Ajaka: To the point of order: Only a second earlier I turned around and it was clear to me that the Hon. Trevor Khan was reading. His eyes were open. It is nonsense to make that suggestion. Perhaps the Hon. Amanda Fazio was too far away to properly notice.

The Hon. Amanda Fazio: Further to the point of order: I had my glasses on, which allows me to see to the other side of the Chamber. If the Hon. Trevor Khan was reading, he was using the Kevin Greene excuse for having his eyes closed in the Chamber. If that is the case, I withdraw my point of order.

The PRESIDENT: Order! There is no point of order.

Dr JOHN KAYE: There are two sides to fiscal responsibility: one side is expenditure and the other is income. It is easy to talk about fiscal responsibility and to ignore the fact that there is an issue with State receipts, which are important. Earlier, I alluded to a big issue associated with the New South Wales Business Chamber, which is seeking to have its taxes and charges cut. It is absolutely clear that Mr Robert Borsak is a fine accountant—or I presume he is. However, it is not clear that he fully understands the economics of the situation. If a fiscal black hole is really opening up, we should be questioning not only the expenditure side but also the revenue side. That has fallen out of favour in New South Wales and around Australia; it has been gobbled up by the neoliberal agenda. We must revive it. If there really is a fiscal black hole, how can we re-establish the balance?

Mr Robert Borsak goes on to say that he has been given an assurance that the Police Association will be allowed to pursue its current wage claim and that it will be unaffected by any proposed changes. As I understand it, the Police Association has a wage claim before the Industrial Relations Commission. The Government has promised Mr Robert Borsak, and I presume the Christian Democratic Party, that the Police Association will be allowed to complete its case and that the Government will not seek to use the provisions of the Industrial Relations Amendment (Public Sector Conditions of Employment) Bill 2011 to undermine its members' pay and conditions. That is great and good luck to the Police Association. I wish it all the best.

However, there is a whopping great "but" that no-one bothered to point out to the Shooters and Fishers Party or the Christian Democratic Party. I hope the Police Association is alert to the fact that this is a solid balsawood deal. If they put only the slightest weight on it, it will crack. The Government has said that it will let the existing claim go through and not seek to use the powers in new section 149C to make life hell for the police—that is, this time around. One week after this legislation has been passed and the Government has fulfilled its deal, the Minister for Finance and Services or the Commissioner for Police will be able to rush off to the commission and seek a variation. They will be able to do that immediately after the Minister for Industrial Relations has pushed through a regulation giving effect to a policy that binds the Industrial Relations Commission in respect of a Government determination.

The Hon. Greg Donnelly: It is a hollow promise.

Dr JOHN KAYE: Yes, it is a hollow promise.

The Hon. Greg Donnelly: It has no legal teeth.

Dr JOHN KAYE: It is a balsawood promise. The minute someone touches it, it will fall apart; in fact, the minute anyone thinks about it, it will fall apart. Even if the paper were recycled, it would not be worth printing. There is a favoured party in this multiparty coalition. The Shooters and Fishers Party—which is two parties joined at the hip—is one member of the coalition; the Christian Democratic Party is another member; The Nationals constitute about three members; and the Liberal Party constitutes about three members. Of that multipartite coalition, the Shooters and Fishers Party is the chosen party. It has been allowed to exempt local government employees.

Mr David Shoebridge: The Shooters and Fishers Party, not The Nationals, are the real junior party in the coalition.

Dr JOHN KAYE: That is very true. What a gift Mr Robert Borsak has been given. From the outset the Government has said that it never intended this legislation to affect local government employees in any way. It is arguable that the legislation would not cover them anyway. The Shooters and Fishers Party has been given permission to move an amendment stating that the sun will rise in the east and set in the west and they will want credit for doing so. They will expect accolades from local government workers because they saved them from WorkNoChoices New South Wales 2011. They did not and The Greens will make that absolutely clear. The Government never intended to include local government workers in the scope of this legislation; in fact, it probably does not have the power to do so. The Shooters and Fishers Party has extracted a hollow promise from the Government.

I made a promise that I intend to honour, although I am running short of time. I said that I would address what I think is one of the silliest aspects of this debate. The Coalition keeps saying that this legislation is the same as the Labor Government's policy. It is trying to justify this legislation, which gives the Minister for Finance and Services the power to identify a component of a policy—which might be buried in the bottom drawer beside all the things that Mr Greiner buried—

The Hon. Cate Faehrmann: It is a very big bottom drawer.

Dr JOHN KAYE: And it is very difficult to find; I have never found it. I have challenged another member to do so, but I do not think she has been successful. The Coalition keeps saying that its policy is identical to the Labor Government's policy. I have said it before and I will say it again: The previous Government's wage freeze was unconscionable and wrong. The only way public sector workers could get a wage increase under the Labor Government was by showing productivity gains. The Greens now in this Chamber and some of our predecessors are on the record saying very loudly that that was a bad economic policy and that it is bad to screw down on the public sector. It is a neoliberal shibboleth that that will work, but in the hard, cold reality of an economy that must function, it does not.

Mr Borsak said that the Iemma Labor Government released its "New South Wales Public Sector Wage Policy 2007", which was designed to ensure that all New South Wales public sector organisations met the objectives of section 13 of the Fiscal Responsibility Act (New South Wales) 2005. He went on to say that the policy has been in place for a number of years. I make it very clear: It is one thing for a government to say that it is going to the Industrial Relations Commission to argue vociferously that it has a policy not to allow real wage growth to exceed 2.5 per cent and that if it does there must be tradeoffs. That was the Labor Government's position before the independent umpire.

This Government's policy is six orders of magnitude away from that. This is like comparing a beebee gun to a Howitzer. There is simply no comparison. This legislation kicks away the independence of the umpire. It means that when public sector workers appear before the Industrial Relations Commission they will have no hope. Not only will they be required to argue against an appalling neoliberal policy but this Coalition is also legislating—L-A-W legislating—neoliberalism as a permanent, ongoing fixture that will destroy the independence of the Industrial Relations Commission and leave it forever unable to hear a case in any meaningful way. As I said, it has wide-ranging implications. Not only does it completely destroy the ability of the public sector to deliver quality public services but it also completely undermines the independence of the Industrial Relations Commission. How can that be compared with a government policy that was to be argued before an independent umpire? I note that the Minister and the Parliamentary Secretary are not listening to my contribution. That is fine.

The Hon. Cate Faehrmann: Everybody else is.

Dr JOHN KAYE: I do not think the Government Whip is.

The Hon. Dr Peter Phelps: I can do more than one thing at a time.

Dr JOHN KAYE: I know that. However, of all the things I would like the Government to take heed of it is that if it wants to justify what it is doing it can try—although I do not think it will be successful—but it cannot justify it by saying that this is what the Labor Government did. This is a totally different ball game; this is a ball game in which the independence of the public sector has been completely undermined. Mr Robert Borsak went on to state:
      It is a policy that has been in place for a number of years.
It is not a policy in the sense that the legislation has not been in place; there has been a policy, an unconscionable policy. He goes on to say:
      Our main concern with this policy change is that it places an unfair burden on some public sector employees. In the case of police, it is very difficult to find employee-related cost savings when approximately 80 per cent are front-line wage-related staff costs.

      In relation to health workers, it is simply unviable as approximately 40 per cent are front-line nurses and approximately 60 per cent are employed in human resources telling front-line nurses how to do their job.
The Hon. Jeremy Buckingham: And 80 per cent of the fireys too?

Dr JOHN KAYE: No, he does not say that, but I think that is what he means. Let us be absolutely clear about this business of front room and back room. Backroom staff, people who are not necessarily seen by the public but who are integral to the development and delivery of public services, have been slandered viciously in this debate and in debates in this Chamber for far too long. The suggestion that all you need is the tip of the iceberg and you will have an adequate iceberg is nonsense. It is easy politics. Backroom workers, by their definition, are a soft target and soft targets get beaten in a neoliberal world. You can get rid of them and there will not necessarily be an immediate impact. The impact will be further down the track. This argument, this smearing of back-office staff is nasty politics. It is politics based on ignorance and an absence of care for the public sector and for the services it delivers.

Let us look at public education, which has been looked at a few times this evening. Public education has a number of non-front-line staff who, under this argument, would be unnecessary. What is being proposed here is to cut back on a number of support teachers in special education, those teachers who work with other teachers to help them develop their skills in dealing with children with special needs. Let us cut back on curriculum support teachers, the people who deliver professional development to make sure there is professional development. I cannot begin to tell members the ignorance of that proposition. All I can say is a month ago Professor Linda Darling-Hammond, a professor from Stanford University, a former education adviser to Barack Obama and one of the most respected education academics in the world, was in Australia. She delivered a number of key messages, one of which, not directly relevant to this debate, is the danger of a high-stakes testing and the way it was undermining education.

But one of her big messages was what works to improve teaching. She did not just do the Miranda Devine trick of saying: I have a mate who taught this way and it worked well, therefore it is true. She did the hard yards. Linda Darling-Hammond looked at horizontal studies across the world. She looked at Finland, she looked at Hong Kong, she looked at Shanghai and at South Korea. Interestingly, they are the four countries that uniformly score best in all international comparisons. One of the three unified features of all those four jurisdictions is sustained professional development in collaborative professional communities. The word "in" there means inside.

That means if you seriously want to get high-quality teaching outcomes—and I will talk in a minute about the role of this legislation in high-quality teaching outcomes—you have sustained professional development in collaborative professional communities. That is to say, you make sure that all teachers, regardless of where they are, get access to professional development in their learning communities, professional development delivered in schools, as part of a debate about pedagogy that should happen in schools, as part of a debate about the way in which schools should operate. To say that those people can be cut, to say that they are not important because they are back-office staff, is absurd. They are people who, in dollars per effort, deliver massive outcomes in public education.

It is not just professional development, it is not just special education and it is not just the school administrative and support staff, the unsung heroes of education. We talked before about class warfare, about how these people are not as well qualified and therefore do not rate highly, but these are important components of a school community. They are not front-line staff but without them you do not have a functioning school. Office staff in schools keep the schools running. You cannot say we should cut them. It is complete nonsense. The absolute, complete, unbelievable nonsense goes on from there when Mr Robert Borsak, at about 12.25 a.m. this morning said:
      If the Government is fair dinkum about reducing excess fat in the public service, I would suggest that it look very closely at the Department of Environment, which employs more than 10,000 public servants
The Hon. Jeremy Buckingham: It is one of those?

Dr JOHN KAYE: Yes, it is one of those. He continues by saying:
      This stands in stark contrast with the number of front-line police manning level of only 16,000.
Obviously he means both men and women, or maybe there are another 16,000 females, I am not sure. He went on:
      If the Government reduced the figure of 10,000—
that is, the number of public servants in the Department of Environment—
      to less than 1,000, not one citizen in New South Wales would notice any difference in service.
Let us ask what they would notice. I am told that there is an ice sculpture of a polar bear outside Customs House. I have been told not to tell Mr Robert Borsak because he might shoot it! But let us see where we can have these cuts. Maybe it would be in the water division of the Department of Environment, which manages access to water permits. We do not need to do that, do we?

The Hon. Jeremy Buckingham: Overregulated.

Dr JOHN KAYE: Absolutely. What about the Water Watch Program, a community-based monitoring program for waterways. We do not need the community monitoring waterways; our waterways are fine.

The Hon. Jeremy Buckingham: With the coal seam gas, that would not pollute them.

Dr JOHN KAYE: Absolutely. It provides water quality advice to catchment managers. We do not need to do that Who cares about the quality of water in our catchments? Who cares about a bit of cryptosporidium? Here he is—I am enormously pleased to see the Hon. Robert Borsak come into the Chamber. To recap for the member, last night Mr Robert Borsak told the Chamber that he felt there should be 9,000 fewer public servants in the Department of Environment. I am speculating where he might find them. Would he find them in the investigation of pollution reported area? We do not need to investigate reports of pollution. Who cares? Here we have an allegation that there has been a dumping into waterways but it does not really matter, does it?

What about air quality? Will we cut from the air quality section? We have already cut significant amounts out of air quality monitoring. There is the action air plan, the national environmental protection measure for air quality, the ambient air quality national protection measure, air monitoring plans in New South Wales, and so on. We do not care about air quality, do we? After all, how many billions of dollars does it cost in the Sydney Basin? Is it $16 billion a year? Upper estimates are around $16 billion a year, but we do not want to spend any money monitoring that.

Will we cut from the noise awareness campaigns, from assessing maximum vibration and noise on rail infrastructure projects? The member has left the Chamber; what a shame. Would he cut from the hazardous materials work of the Department of Environment, which responds to reported incidents and regulates the transport of dangerous goods, radiation and hazardous materials? What about pests and weeds? Would he cut from the New South Wales Invasive Species Plan or would he cut from the regional pest strategies and management plans? I can tell members one area he would cut from and where the Government Whip would definitely cut from, but he would have to change books and go back to reading Ian Plimer's book. He would make cuts to the climate change programs that deliver energy efficiency, that try to set targets, despite the opposition of politicians, that try to promote renewable energy and, sadly, promote carbon sequestration—the Shooters could also cut the carbon sequestration program—that seek to develop mitigation technologies for agricultural emissions in New South Wales, and that maximise carbon sequestration in trees.

Or would the Hon. Robert Borsak make cuts to the regulation of the use of chemicals? Or would he make cuts to the soil monitoring evaluation reporting on soil degradation? The Shooters do not care about that, I presume. Or would Mr Robert Borsak make cuts to waste regulation, or to nature conservation? What an absurd proposition—9,000 jobs would be cut from the Department of Environment because Mr Robert Borsak and the Shooters do not like the environment. It is as absurd an idea as cutting backroom jobs. Following Mr Robert Borsak, at 12.20 a.m. Reverend the Hon. Fred Nile got to his feet. Reverend the Hon. Fred Nile said:
      Together with the Hon. Robert Borsak, who spoke on behalf of the Shooters and Fishers Party, I acknowledge that the Christian Democratic Party has been involved in negotiations with the Government.
Reverend the Hon. Fred Nile tells us that negotiations have taken place. From my experience of negotiations they have two sides. On one side you have what is being offered, and on the other side you have what is being accepted. We know what is on the table here: the passage of this legislation, with a couple of amendments which are totally and utterly meaningless. But what was on the other side of the table? We have some evidence as to what might have been on the other side of the table. That evidence is the ever-handy Notice Paper of this House. In order to get a sense of what is on that document, we can go to the Notice Paper and have a good look at it. Let us have a look at some of the things the Christian Democratic Party has been agitating for. Is this Government going to do another backflip? Having done a backflip, a frontflip, and then another backflip, is it going to do another frontflip—or a backflip, whatever one wants to call it—on the issue of the repeal of ethics classes?

The Hon. Dr Peter Phelps: Point of order: Anticipation.

The Hon. Jeremy Buckingham: To the point of order: The Hon. Dr Peter Phelps has not elucidated what is being anticipated. He should make clear to the House exactly what he means. One-word points of order are certainly not enough for this august House—

[Interruption]

The PRESIDENT: Order! The member will not respond to the interjection; he will take his point of order.

The Hon. Jeremy Buckingham: It was not clear from the Hon. Dr Peter Phelps' one-word point of order exactly what he was referring to. I ask you to direct the Hon. Dr Peter Phelps to elucidate his point of order.

The Hon. Amanda Fazio: To the point of order: I am also unclear as to what the Government Whip meant in raising the issue of anticipation. I do not believe that is relevant to the contribution of Dr John Kaye.

The PRESIDENT: Order! A point of order on anticipation must be clear about which item of business within the Order of Precedence or on the Notice Paper the Hon. Dr Peter Phelps believes Dr John Kaye is anticipating. There is no point of order. Dr John Kaye has the call.

Dr JOHN KAYE: Thank you, Mr President, I appreciate your giving me the call. A number of issues could have been on the table in that negotiation. And we will find out what those issues were. With the Christian Democrats, was it preventing people wearing full-face coverings in public places—the burqa ban bill? Was it repealing amendments made by the Adoption Amendment (Same Sex Couples) Act 2010 that enable couples of the same sex to adopt children? Was it requiring women who are considering an abortion to undergo mandatory counselling and to view an ultrasound of the unborn child? Or was it prohibiting the destruction of any child in utero with a detectable heartbeat?

Which of these non-Liberal, non-National party policies has been signed off on in this deal? Is the answer none? I would be happy to hear it is none. But if it is one of them, we will know. We will know full well, because we sit in this Chamber and we know full well when a deal has been struck. We have seen it before with the previous Government and, sadly, we will see it again with this Government. What was the negotiation with the Shooters and Fishers Party? Under the new Government, we have already seen some "gains" for the Shooters and Fishers Party. First, we have seen the demotion of the Hon. Catherine Cusack. A media release issued on 16 March 2011 reads:
      Shooters and Fishers Party MLC Robert Brown said he was astonished [at] the breathtaking rewriting of history by the Shadow Environment Minister Catherine Cusack who last night told a forum in Parliament House that the Shooters and Fishers Party has "waned in relevance since 1996".

Further along in the media release the Hon. Robert Brown, the senior of the two members of the Shooters and Fishers Party in this place, said:
      Perhaps Mr O'Farrell should look at moving her aside, because one way or another he will have to consider our Game and Feral Animal Control Bill later this year.
Spectacularly, the Hon. Catherine Cusack was dumped from the Environment portfolio and sent to the backbench—an unwise move but a move that was made nonetheless after the Shooters and Fishers sledged her in a media release and called on Mr O'Farrell to do it. Another "gain" for the Shooters is the Marine Park Authority into NSW Fisheries. Another is the regulation to revoke marine parks created by the Labor Government at Solitary Islands, Coffs Harbour and Jervis Bay. Another "gain" for the Shooters is the elevation of the Department of Environment into the Premier's department. Elevation indeed! There is also the reversal of a ban on fishing in the breeding grounds—

Reverend the Hon. Fred Nile: Point of order: I take offence under Standing Order 91 (3), which reads:
      A member may not use offensive words against either House of the Legislature, or any member of either House, and all imputations of improper motives and all personal reflections on either House, members or officers will be considered disorderly.
I ask Dr John Kaye to withdraw his imputations of improper motives concerning me, in suggesting that I had done negotiations with the Government concerning any of my bills. None of them was discussed in the slightest way. Dr John Kaye has imputed to me improper motives.

Dr JOHN KAYE: To the point of order: Reverend the Hon. Fred Nile is making a personal explanation, not taking a point of order.

Reverend the Hon. Fred Nile: I am saying your words were offensive, and I ask you to withdraw them.

The PRESIDENT: Order! Will Reverend the Hon. Fred Nile make clear which words he wishes to be withdrawn?

Reverend the Hon. Fred Nile: When Dr John Kaye said I had negotiated with the Government concerning my notices of motion to which he referred in his contribution. During the discussions, the only negotiations were about the legislation. There were no discussions about any items on the Notice Paper. I will swear that on a stack of bibles. I want Dr John Kaye to withdraw the imputations. If Dr John Kaye wants free kicks, he should not do it with me.

The Hon. Duncan Gay: Point of order—

The PRESIDENT: Order! Does the Hon. Duncan Gay wish to add to the point of order before the Chair?

The Hon. Duncan Gay: Yes I do, Mr President. The Hon. Jeremy Buckingham just said, "It's not a joke when you do dirty deals."

The PRESIDENT: Order! If the Hon. Duncan Gay wants to take a separate point of order on that matter later he may. It is not relevant to the matter currently before the Chair. I advise Reverend the Hon. Fred Nile that I did not hear all the words that Dr John Kaye said. Under the standing orders, I must decide whether I consider the words to be offensive before I require Dr John Kaye to withdraw them. However, I note that I thought Dr John Kaye's remarks at a particular point were imputing motives and making imputations about Reverend the Hon. Fred Nile. While I cannot specifically recall the words, I am reluctant to require him to withdraw. Reverend the Hon. Fred Nile has taken offence so I ask Dr John Kaye to desist from making any such remarks in the remainder of his contribution.

Dr JOHN KAYE: I did not seek to cause offence to Reverend Fred Nile.

The Hon. Greg Pearce: Show a bit of character and withdraw, John.

The PRESIDENT: Order! Dr John Kaye has the call.

Dr JOHN KAYE: I did not intend in any way to cause offence to Reverend Fred Nile. I make that absolutely clear. If I did in any way offend Reverend Fred Nile, I withdraw that part of my speech. I am not sure which part it is.

Reverend the Hon. Fred Nile: It is the bit where you imputed improper motives.

Dr JOHN KAYE: I withdraw any imputation of improper motives. However, I refer to Reverend Fred Nile's speech last night in which he said, "I acknowledge the Christian Democratic Party has been involved in negotiations with the Government."

Reverend the Hon. Fred Nile: Negotiations concerning the legislation.

Dr JOHN KAYE: Okay. Let us move on. It is interesting—not in your case, Mr Fred Nile—that the Hon. Catherine Cusack was knifed from a portfolio that she held in Opposition. It was nothing to do with Reverend Fred Nile; this was not his fight, it was a fight with the Shooters and Fishers Party. It is an interesting fact, and I am not the first person to make that observation. I want to move to another issue.

[Interruption]

Mr President, if the Hon. Duncan Gay and the Hon. Jeremy Buckingham wish to have an argument—

The PRESIDENT: Order! Dr John Kaye has the call.

Dr JOHN KAYE: I return to the issue of non front-line staffing, particularly in respect of nursing. We heard in Mr Borsak's speech—I do not think it was mentioned by Reverend Fred Nile—and throughout the debate reference to the issue of backroom versus front line. I refer in particular to the absurd statement from the Shooters and Fishers Party member, Mr Robert Borsak, who said in relation to health workers, "It is simply unviable as approximately 40 per cent are front-line nurses and approximately 60 per cent are employed in human resources telling front-line nurses how to do their job." I asked the Nurses Association of New South Wales what that meant and I received a statement from Lisa Kremmer, who is currently the acting research officer and someone who is respected in the nursing profession for standing up for the truth. She says:
      97% of the public health system workforce are clinical nurses or midwives - these include, for example, Assistants in Nursing, Enrolled Nurses, Registered Nurses and Midwives, Nurse Practitioners, Nursing/Midwifery Unit Managers and Clinical Nurse/Midwifery Educators.

So 97 per cent are right there up-front doing the work. They are on the front line. She continues:
      3% of the nursing workforce is made up of Nurse Managers and Nurse Educators...

Let us get rid of the nurse educators. The last thing we would want to do is educate our nursing workforce. We do not want to do that so let us get rid of them, because they are backroom staff and therefore worthless. Where on earth does this 40-60 split come from? Where on earth does the member get the idea that human resources staff tell nurses what to do? What an absurd proposition. It is a proposition made in ignorance. It sits alongside some of the climate change denier nonsense that he comes out with that is a complete and utter fabrication of reality. What a slander on our nursing workforce the member engaged in. If he had bothered to call the Nurses Association or go to the Australian Bureau of Statistics web page or had even bothered to ask the Minister, he would have got accurate figures. But no, he never lets a fact get in the way of a jolly good hunting story. Here we have a jolly good hunting story: 60 per cent of the health workers are employed in human resources telling front-line nurses how to do their job. The member's contribution to the debate is deeply discredited by his failure to use facts and to say up-front and clearly that he was just making it up as he was going along.

There are a number of very important non front-line nurse staff activities, for example, recruitment and retention of nursing staff. If we got rid of front-line nursing staff we could get rid of those who do recruitment and retention. Others are involved in clinical trials and research. Oh, I forgot, this is from the party that does not like science and according to its friend, the Government Whip, thinks science is a fascist conspiracy. Totalitarian planners and fascist researchers. Clinical nurse consultants have five years full-time equivalent postgraduate registration experience and, in addition, have approved postgraduate registration nursing/midwifery qualifications relevant to the field in which he or she is appointed. Let us get rid of the clinical nurse consultants, the experts, the people who are there to make sure that when you are sick and go to hospital you get the very best possible nursing care. For a Government that is talking about cost-effectiveness, how cost effective is that—to have somebody there who is sharing their expertise amongst the nursing staff?

There is also nursing management and policy development. Oh, we do not need policy because that comes dangerously close to planning, and planning is at the heart of a fascist conspiracy according to the Government Whip. There are staff involved in education and training, something that appears to be entirely rejected by the crew opposite. There are nurses in disability services. Let us get rid of them. The list goes on: there are clinical specialties such as cardiology, coronary care, community health, critical care, and nurses in disability services, aged care and home care. Let us be absolutely clear: This latter category is being left behind public sector nurses, in particular disability services. However, disability services, aged care and home care nurses are all on the same award, which expires on 30 June this year. If this legislation goes through they will face the chopping block. I want to talk briefly about the speed with which this legislation has been pushed through this Chamber. We sat last night until 3.20 a.m. and it looks like we might be sitting late again tonight, although who knows? Will the Government use the gag?

The Hon. Duncan Gay: We will be sitting late tonight.

Dr JOHN KAYE: Will the Government use the gag?

The Hon. Duncan Gay: We will do what we want.

Dr JOHN KAYE: Here we have, Mr Assistant-President, a situation in which the Government is not ruling out using the gag. The gag has not been used in this Chamber since 1906. This Government's plan is to guillotine this legislation through and force a vote in the wee small hours of the morning. The Daily Telegraph will then be allowed to photograph it but not Fairfax because the Government has obviously cut a deal with News Ltd.

The Hon. Duncan Gay: You are the ones that moved a motion against Fairfax.

Dr JOHN KAYE: That is totally incorrect. The member was not paying attention. The member voted for it.

The Hon. Duncan Gay: I was not in the House. If I had been in the House I wouldn't have.

Dr JOHN KAYE: I acknowledge that interjection.

The Hon. Duncan Gay: Are you going to try to break Shoebridge's record?

Dr JOHN KAYE: No, I am not.

The Hon. Duncan Gay: Yes, you are. What a joke you are. You are just a little boy. Who is the biggest one?

Dr JOHN KAYE: I do not take offence at what the Deputy Leader of the Government has said in that case. I could not take offence from him, as it turns out. I am trying here to construct—

The Hon. Duncan Gay: You're playing games, aren't you? Who is going to have the longest stint at the lectern?

The ASSISTANT-PRESIDENT (Reverend the Hon. Fred Nile): Order! Members will allow Dr John Kaye to continue his challenging presentation.

Dr JOHN KAYE: I appreciate the non-ironic acceptance by the Assistant-President of the quality of this presentation. This legislation has been rushed.

The Hon. Duncan Gay: No, it has not. You are playing games with the House.

Dr JOHN KAYE: Members have just seen a graphic demonstration by the Deputy Leader of the Government. The Government is considering using the guillotine. If that is the case, all I can say is what a shameful event that will be.

The Hon. Duncan Gay: The Government is considering every option because you are playing games with the House.

Dr JOHN KAYE: The Government is considering it. Not since 1906—

The Hon. Duncan Gay: You are out to beat Shoey. Who is going to be leader? Who is the biggest boy in the House?

Dr JOHN KAYE: We talk about agendas, the agenda of the Government is very clear: it wants to guillotine this legislation through. I call on the Government not to do that. If it does that, then what a shameful event it will be. Yesterday Mr Shoebridge—since he has been mentioned—poetically, for a lawyer, pointed out how rushed this legislation has been. I want to make it absolutely clear that this is a radical change to the legislation. This radical change was not on the election platform. This is Terry Metherell reborn. There is no need to rush this legislation through. What is the cost of not passing this legislation tonight, tomorrow, next week or even when the House resumes in two weeks? What is the cost of doing that? What would be the impact on the people of New South Wales if we did not do it? There is one case before the Industrial Relations Commission, and the second is coming up to my knowledge—maybe there are more.

There are five cases before the Industrial Relations Commission and the Government is trying to undermine them in the name of an experiment. The people of New South Wales very clearly rejected WorkChoices. The people of New South Wales, not just the public sector workers, are becoming very agitated and concerned about this legislation. First of all, it was the Solar Bonus Scheme, then it was the failure to reverse the electricity sell-off and the threats to privatise the wires and polls, and now it is the destruction of the public sector. It has an impact on the cost of living. The people of New South Wales put their future in the hands of a Government that is absolutely messing this up and pushing ahead with legislation when there is no democratic reason to do so. This legislation makes the public sector the easy option.

The Hon. Duncan Gay: We are on your side: we want you to get the new record.

Dr JOHN KAYE: Mr Assistant-President, I ask that the Deputy Leader of the Government be called to order. He was asked to come to order before and he is flouting the ruling of the Chair.

The ASSISTANT-PRESIDENT (Reverend the Hon. Fred Nile): Order! All interjections are disorderly and should cease forthwith.

The Hon. Duncan Gay: Mr Assistant-President, I apologise.

Dr JOHN KAYE: This legislation makes public sector workers the easy option for governments to balance their budgets. This legislation sacrifices public sector services to the big end of town. It makes it easy to cut taxes and it makes it easier to balance the budget in a neoliberal fantasy to build infrastructure and to outsource services. This campaign against public services should not be anticipated. Where is the evidence for the need to do that?

[Interruption]

Mr Assistant-President, may I ask for some order in this House? The Opposition are clearly stung by the fact that they have been exposed—

The Hon. Mick Veitch: Point of order: No-one from the Opposition has been interjecting on the member at all.

Dr JOHN KAYE: I beg your pardon. I completely retract that statement and I apologise.

The ASSISTANT-PRESIDENT (Reverend the Hon. Fred Nile): Order! Does the member apologise to the Opposition?

Dr JOHN KAYE: I do apologise to the Opposition.

The ASSISTANT-PRESIDENT (Reverend the Hon. Fred Nile): Order! The Government sits on the other side of the House.

Dr JOHN KAYE: Thank you. I want to ask a factual question. I do not want to ask an ideologically driven question or a question about the desire to bloat the profits that go to the big end of town. Is there a reason for this? Do we have a crisis in public sector salaries? Is there a problem? Let us not go down the route of saying, "Yes, there is a problem because the Treasurer told us so. The budget black hole tells us we are experiencing problems." Let us ask the experts. Let us ask the Workplace Research Centre of the University of Sydney. That centre found that New South Wales public servants earn 8 per cent less than their equivalent private sector workers—hardly public sector fat cats—and roughly the same as their interstate counterparts. There is a blowout here, and in Tasmania, in Western Australia, in the Australian Capital Territory and in the Northern Territory. Across Australia there is a blowout. There is no blowout—to the contrary.

If this legislation is passed and the 2.5 per cent is in place and no trade-offs are found the average teacher will lose $14,580 per year. If we had had a wages cap since 2000 our public sector teachers would be $14,580 per year worse off now. What would that mean to our public sector teachers? It would mean that it would be incredibly hard to find teachers, particularly for the difficult to educate classrooms. It would mean we would devastate our public education system. But there is no crisis here. New South Wales teachers are only marginally above the nationwide average. Senior constables in our police force would have been $8,961 per year worse off, and nurses would have been $12,232 per year worse off.

If the proposed changes had been in place since 2000, all other things being equal we would have had the worst paid teachers, police and nurses in the country. That is exactly what this legislation locks in. It locks in the idea that we are going to be the losers in New South Wales politics. We will become the State that has the greatest number of the least paid workers. There is no legitimate reason for introducing this legislation. There is no crisis and there is no reason why we should be doing it. The big problem is that we have an underfunded public sector and we have failed to provide funding for the public sector. If anything, what we should be arguing is how we can get more money into our public sector. The debate in education has been about more money for teachers, public sector workers and educational consultants. It is about how we make sure that we remunerate teachers for the hard work they do, particularly young teachers to keep them in the profession. The big problem is that we are headed in the wrong direction. All households will suffer, and in the process we will damage the State's public sector and the capacity to maintain a functioning economy. We also will drive up costs.

What is really going on here is the ideology of neoliberalism, which is a proven failure in the United States of America, Spain, Portugal and Greece. Despite its being a proven failure throughout the world, here we are in New South Wales not just adopting neoliberalism but actually going the full monty. In New South Wales, we are going to legislate neoliberalism, which is short-sighted, vicious and driven by old-fashioned values of class warfare. We are not the only jurisdiction in the world that has taken leave of its senses.

I will briefly refer to the jurisdiction of Wisconsin where at this point the right to collectively bargain is being taken away from public sector workers. In the leading State among a number of conservative Republican States in the United States, the Government has hidden behind the global financial crisis and has used the Legislature to ram legislation through by applying the gag. The legislation will devastate the public sector. It forces employees to increase their contributions to health and pension funds and takes away any right to collectively bargain. Governor Scott Walker's legislation includes the ability to privatise key public assets at the whim of the Governor and without legislative oversight. Boy, that sounds familiar. We have seen that in New South Wales.

The United States of America is in the grip of a campaign to win the soul and heart of the State and for the future of its economy and society. Paul Krugman, who is a Nobel Prize-winning economist in New York, says that the Republican Party is waging a war against unions. The policy is not really about the State's budget but a bigger issue. It is about delivering power to the big end of town—to the Republicans friends and donors.

The Hon. Duncan Gay: You would not be reading from a document, would you?

Dr JOHN KAYE: Perhaps the Minister for Roads and Ports wishes to take a point of order.

The Hon. Duncan Gay: I am running a book, though. My money is on David, although I would like to see the older man win.

Dr JOHN KAYE: The smaller man win? Another matter that will be of particular interest to the Coalition, particularly to the Hon. Matthew Mason-Cox and the rest of the Liberal Party, is advice provided by a man whose name is Mr Arthur Moses. Mr Moses is a man the Coalition relied upon to provide advice.

The Hon. Duncan Gay: This is the man your friends in the Labor Party condemned for years.

Dr JOHN KAYE: Let me finish. This is a man that the New South Wales Liberal Party has relied on for many years to be its tame lawyer. I have to say that he is a man who was rejected for Liberal Party preselection on two or three occasions. But he is a fearless and fair lawyer. He provided advice on the constitutionality of the legislation before the House to the Police Association. He found four heads of concern about its constitutionality. The first concern was about the separation of powers in Chapter III of the Australian Constitution.

The Hon. Duncan Gay: Mr Deputy-President, I seek your advice. Dr John Kaye is referring to an opinion given by a lawyer, Mr Moses. The same opinion has been traversed by four other members previously. Frankly, I do not consider this to be new material. It really is repetitious.

The Hon. Rick Colless: It is tedious repetition.

The Hon. Duncan Gay: It is tediously repetitious. At least three other members have cited this opinion. Of course, Mr Moses is the eminent lawyer who for decades the Labor Party has indicated is a man of poor opinion.

Dr JOHN KAYE: To the point of order: This is not a point of order. It is a filibuster against my speech. I have things that I want to say. The Deputy Leader of the Government is giving a longwinded description of Mr Moses.

The DEPUTY-PRESIDENT (Reverend the Hon. Fred Nile): Order! Although the matter has been referred to by other members, Dr John Kaye may be unaware of that. There is no point of order.

Dr JOHN KAYE: I will conclude the point as quickly as I can. Mr Moses raised four heads of concern. The first relates to the Industrial Relations Commission when sitting in court session, which is a Chapter III jurisdiction under the Australian Constitution. His opinion is that the legislation clearly violates the separation between the commission, whether or not it is in court session, the Legislature and the Executive. I will skip over the second concern, but the third concern relates to procedural fairness. It is very clear that this legislation does not deliver procedural fairness.

The fourth concern is that the regulation itself may be susceptible to judicial review and declared invalid on the grounds that it is inconsistent with the objects of the Industrial Relations Act. Section 3 of the 1996 Act refers to "fair and just", and this legislation is not fair and just. It also refers to "promotes efficiency and productivity", and I have proved it does not do that. It also refers to "promotes participation in industrial relations by employees", and as I indicated earlier it does the opposite. It also refers to encouraging "participation in industrial relations by representative bodies", and earlier I asked why a union would bother being involved before the commission. It also refers to "prevent and eliminate discrimination at the workplace", and indeed it does the opposite. This legislation locks in discrimination.

When a government invokes a 2.5 per cent legislated freeze, whatever discrimination exists is locked in. When there is a highly feminised workforce in receipt of low wages and the workers are locked into 2.5 per cent, the discrimination is locked in forever and there are no more equal pay cases in New South Wales. Another object referred to in section 3 is "resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner", and this legislation is not fair and it does not envisage arbitration. It also refers to encouraging and facilitating "co-operative workplace reform and equitable, innovative and productive workplace relations", and this legislation does not do any of that. There is every chance that the legislation we are examining effectively does violence to the Australian Constitution and will be struck down. That concludes my ideas and thoughts. I really want to speak about what people at the grassroots think about this legislation. I had hoped to spend more time during my speech talking about that, but I do not want to delay the House unnecessarily or for too long.

The Hon. Robert Brown: No, we want to hear it.

Dr JOHN KAYE: This is important material because it comes from people such as Georgia Phillips from Wollongong, who is a libraries activist. She talks about the violence that this legislation will do to library staff. An email I received just this morning from Scott Davidson, the principal at Camden Public School, stated:
      On behalf of Camden Public School I would like to express my outrage at this ridiculous piece of legislation. To take away the rights of workers to have wage claims assessed by an independent umpire … and to limit the potential of such negotiations is abhorrent.

This well-respected principal of a very important public school in Camden is saying the same as what we have told the House. Do we seriously want to go ahead with legislation when we have respected members of the community telling us that in the workplace for which they are responsible this is going to cause untold damage? Mr Davidson also stated:
      We work tirelessly to produce the future of our country.

Indeed, he and 60,000 public education workers around New South Wales, and their colleagues in the TAFE system and the early childhood sector, do exactly that. Mr Davidson further stated:
      They deserve the very best education from the very best educators. To limit the potential earnings of teachers will do nothing to attract the brightest and the best to our profession. The credibility and attractiveness of our profession is being undermined yet again by a ridiculous policy that has not been discussed with key stakeholders.

How could one say it more eloquently than that? He is saying that the Government has not discussed this with them, it will do violence to their workplace and they do not want it. The principal of The Grange Public School in Minto, Lynne Wilson, stated:
      As an experienced school principal, I write to strongly object to the proposed changes. It is totally unacceptable that the government wishes to remove the industrial Relations Commission as the independent arbiter.

      There have been occasions in the past where the independent arbitrator has found a just settlement which has been acceptable to all parties.

Ms Wilson is saying that this opportunity will be lost. From here on in the opportunity will be lost to have a just settlement that is acceptable to all parties. Instead of looking for the consensus outcome, we are going to achieve an outcome that is not by consensus.
      A major concern is that the hard [one] pay settlements will be eroded and that teachers will, in fact be receiving less remuneration in real terms. Teachers' work is increasingly more challenging and complex. Teachers must be paid the remuneration they deserve.

I could not have put it better myself. It is absolutely clear that teachers, along with ambulance drivers, fire brigade employees, a whole range of other public sector employees, are about to see a substantial decrease in their wage justice. A teacher by the name of Margaret, wrote on her day off:
      Dear Mr Kaye,

      As a public school teacher I am appalled at this action by the Liberal Government. Taking away teachers' ability to argue for better pay and limiting it to a 2.5% raise is unfair. It will set teachers' salaries back as the cost of living increases will not even be covered. This, at a time when large number of teachers are reaching or coming close to retirement age …

That is a matter I did not canvass, but I should have. It is a very important issue and one which we should spend one second on right now. From recollection, about 40 per cent of teachers are over the age of 50. A large group of teachers are retiring. They were wonderful teachers and will continue to be wonderful teachers in retirement. I pay my respects to all of them. However, it has to be appreciated that in an ageing workforce we need to be looking at succession planning. Succession planning is about attracting the best and the brightest to the profession. This legislation will not attract the best and brightest. On the contrary, this legislation before us today will do the opposite. It will say to the best and brightest not only will they not get a decent salary, a decent income; they will face a lifetime in the profession being treated like dirt. They will be treated as cannon fodder; as people who do not deserve a pay rise, people less important than the boardrooms and profits at the big end of town. Margaret further wrote:
      As it is many young people can earn a lot more in the private sector so why they should come into or stay in a job that doesn't even keep up with the cost of living?

Bruce Duckett from East Ballina, another Nationals-held seat, stated:
      I have been a public school teacher in NSW continuously since February 1974. During that 37 years I can recall only one salaries negotiation that did not result in referral to the IRC or its equivalent. Even in that case ( 2006 I think it was) I suspect that some aspects of the teachers claims in minor areas were arbitrated. Without the arbitration we would have had many more of our working conditions stripped from us by both Coalition the Labor Governments.

Mr Duckett is saying clearly and importantly that his working conditions will be badly undermined.

Mr David Shoebridge: Stripped away.

Dr JOHN KAYE: Stripped away by this legislation.
      One thing that has struck me during this time is that the government gets the force of two prongs, from its political (politician) side and also its administrative arm.

Mr Duckett is saying what we said before, but he has said it more eloquently. He is saying in effect that the arbitration commission will be both judge and prosecutor. On the one hand, the arbitration commission will have lost its independence and will be a judge beholden to the policy of government. On the other hand, the department will prosecute the case for a lower wage. What kind of a kangaroo court does the Coalition envision for New South Wales? Mr Duckett further states:
      Sick leave and other forms of leave would have been severely reduced or abolished [if this legislation had gone through]. We deal, daily with children carrying all sorts of sicknesses. This is in crowded and poorly heated/ventilated rooms. As a result, hardly a school term goes by without me succumbing to a cold or the 'flu.

This legislation puts sick leave and the other important issues on the agenda to be chopped up by an arbitration commission that has both hands tied behind its back. Mr Duckett continued:
      Like myself, many teachers will leave the service over the next decade. It worries me how the government will attract and retain teachers with these attacks. Already the career option is not high.

I referred earlier to Professor Linda Darling-Hammond. I think it is a great shame that not more members of Parliament heard Professor Darling-Hammond's presentation. She stated clearly that a very important issue over the next decade will be how we attract and retain teachers and an important part of that is building career structures. The arbitration court should not be worrying about government policy but be talking to teachers and their employers about building a better career structure. Teachers would not then reach the top of their range in five years but have an opportunity to advance through the ranks, remain as classroom teachers and become mentors. This is the future of our public education system; not an all-out industrial war that is being run— not surprisingly I have got to say— by the party of Terry Metherell and Nick Greiner. Mr Duckett further stated:
      I have always tried to be positive but have little to no success in encouraging our brighter students to even consider teaching.

He is talking about a major problem and the Deputy Leader of the Government would be well advised to listen. Amanda Romeiro is the federation representative from Bossley Park. She wrote an impassioned letter about what she would ask Mr O'Farrell if she had the chance. She asked:
      Did Mr O'Farrell's children attend public school?

Indeed I think they did in primary school, but they went off to a posh private school for secondary education. Ms Romeiro further asked:
      Would Mr O'Farrell like to visit a number of public schools, particularly in disadvantaged areas, to see what a phenomenal job these hardworking, dedicated public sector employees do.

[Interruption]

Mr David Shoebridge: Point of order: I refer to the level of noise from the benches opposite, which is continuing during my point of order. They have been listening in respectful silence for a great deal of Dr John Kaye's presentation. At the moment the amount of noise coming from the benches opposite is making it very difficult to hear Dr John Kaye's contribution to this debate. I ask that they be directed to desist.

The ASSISTANT-PRESIDENT (Reverend the Hon. Fred Nile): Order! I remind members that interjections are disorderly at all times. Members will allow Dr John Kaye to conclude his remarks in silence.

The Hon. Charlie Lynn: Point of order: My response was directed at the term "posh private school". Barry O'Farrell's father was an Army warrant officer. They could not afford anything other than an ordinary public school for his education.

The Hon. Lynda Voltz: To the point of order—

The ASSISTANT-PRESIDENT (Reverend the Hon. Fred Nile): Order! That is not a point of order. The Hon. Charlie Lynn is making a comment.

The Hon. Lynda Voltz: That was my point. Mr David Shoebridge's point of order was about the level of noise coming from the other side of the Chamber. It had nothing to do with the comments of members on the other side of the Chamber.

The Hon. Duncan Gay: To the point of order: My hearing has not got that far. I only heard the member say "level of noise". This member decided to put that taunt to the Government.

The Hon. Lynda Voltz: Further to the point of order: Hansard will reflect exactly what Mr David Shoebridge said in his point of order. His point of order related to the noise that was coming from the other side of the Chamber. Whatever the Minister thinks, Hansard will clearly record what the member said at the time.

The ASSISTANT-PRESIDENT (Reverend the Hon. Fred Nile): Order! That is not a point of order. Dr John Kaye will continue with his remarks.

Dr JOHN KAYE: I was referring to a letter from the Amanda Romeiro, a Teachers' Federation representative at Bossley Park Public School, a fine public school. Ms Romeiro spoke about Mr O'Farrell's children and where they went to school and invited Mr O'Farrell to visit her school. She made the observation:
      We are at the front line of the education system in NSW.
      We are articulate.
      We are intelligent.
      We are positive role models for future generations.
      We give an enormous amount of our own time and financial resources to ensure the best outcomes of public education students. We are dedicated.
      We are progressive.
      We are natural leaders.
      If the O'Farrell government strips our rights to have the Industrial Relations Commission hear our salaries and work conditions requests we will no longer be any of the above.

Ms Romeiro is saying clearly that the bill before the House will take away the very important features of a progressive wage policy that enables the success of public education. Mr Robert Currie, a teacher, talks about his concerns with the many facets of the O'Farrell Government's industrial relations legislation. He says he cannot remember when or if a government has ever before conferred upon itself such a dictatorial power. Mr Currie says it is not only about what is happening to his school, it is about the next generation of students and the impacts on democracy. Luke McAdam, also a teacher, says:
      My name is Luke McAdam and I teach in a NSW public school. I have attended university for 5 years to gain my qualifications to teach successfully. My wife is an allied health worker in a NSW public hospital. She attended university for 4 years and has done countless hours of professional development in her job to enable her to provide high quality care to patients she sees every day. We are not rich. We love our jobs and we love the fact that we think we are serving the needs of the NSW residents in our professions.

That is an eloquent expression of my earlier comments about the many public sector workers who sacrifice pay and conditions to work in these areas. This legislation makes their jobs even more difficult. Nikolai Liu, also a teacher, says:
      I am a teacher in the public system and this cut in pay I was not expecting from the Government. I was budgeting to buy my first house

I spoke previously about an ambulance driver or Fire Brigades employee who had the same problem. Mr Liu continues:
      I was budgeting to buy my first house in May next year but this cutback in my salary increase for next year will hamper my savings efforts or make things much tighter. It is already an expensive exercise buying a house with property prices in Sydney so high. This is a real kick in the teeth from the new government. I will never vote for O'Farrell or Liberal again if this goes through.

Sue Goor is also a public school teacher working in the disability field. As members know, the disability field is a difficult and emotionally fraught field of public education. Sue Goor says:
      I am a public school teacher working within the disability field and I am most concerned about your proposed legislation. Based upon your pre-election message I expected your government to provide respect and some understanding.

She obviously read the same documents that I read through earlier.

Mr David Shoebridge: She thought "strong and independent" meant strong and independent.

Dr JOHN KAYE: She thought "strong and independent" meant strong and independent. She continues:
      Instead you disrespect and devalue me.

      You may choose to argue that good teachers will be adequately recompensed. I would disagree. I am an itinerant support teacher. Since my initial training I have gained the following qualifications: Master of Special Education, Master of Cognitive Processes and a Master of Total Quality Management (Hons), as well as a certificate IV in Workplace Assessment and Training.

      I do not however have a class. I work in the disability field so student results will not tell you anything. I spend my time advising students, their families and school teachers about disability options and vocational pathways.

This is a dedicated special education teacher. Her dedication moves me to tears. She has trained herself up and worked hard. She says to the Parliament, "Don't pass this legislation. Don't slap me in the face. Don't tear me apart". She continues:
      This legislation has the capacity to downgrade Public Education in NSW. This will in turn adversely impact on the health, welfare and judicial systems. The product will be a reduction of a vocational achievement. I do understand that some of these are federally funded so not your budget, but what people will remember is that Barry O'Farrell's legislation was responsible.

Noreen Navin, a teacher activist, says:
      Hey John

      The obvious ramification for public education is that if our wages are frozen or too many "productivity" offsets are implemented that the private system will entice teachers away with attractive salaries and conditions, leaving the public system reduced to a residual system.

That is a very important issue that The Greens discuss often. How do we maintain public education as a desirable location for teachers who choose this career, not as a location that is considered second best? Rebecca Stark, a teacher from Schofields, says:
      I am a special educator—

another one—
      and am very concerned about the legislation that has been introduced into the NSW parliament that will remove the right of teachers and other public sector workers, such as police and nurses, to bargain in good faith …

Christine Beasley, a teacher from Welby, says:
      To educate the young people of the community I work in, I often work under conditions that you would find unfamiliar—equipment lacking or broken, old or outdated equipment, buildings that are not purpose built for the education our children need and deserve.

This teacher is not complaining, she is just telling it like it is. She says teaching is a job that can give a great return in personal satisfaction and she totally believes in public education. She goes on to say:
      However, it is also a stressful, demanding job. Many teachers I know, including myself, suffer with high blood pressure as a result of their work.

This Parliament is contemplating a piece of legislation that will slap her and her colleagues in the face. Rachel Mules, a teacher from Marrickville, says:
      Myself and other teachers in NSW, not to mention all other public sector workers, including nurses, police, firefighters, are real people, with real families, who work extremely hard. I love my job but it is a very stressful job and it is totally demoralising and feels like a slap in the face when politicians make decisions such as this one that will have a detrimental effect on teachers and other public sector workers, but also on public schools in NSW.

This teacher from Marrickville is saying that this legislation is a slap in the face. In the first 100 days of the O'Farrell Government, is that really what we want to do? Roy Davi said:
      Those that remain in an already under staffed workplace, will seriously question staying in the profession under such draconian measures that the government proposes.
From the coalface somebody supports what I said earlier: we will lose teachers. He continued:
      If you seriously want quality people to work as hard as teachers, then help attract them in this career, do not scare them off, it's already hard enough as it is.
Teacher Sheng-Wen Pan from Hurstville said:
      You get what you pay for. If you want a great society, you need a population that is educated—
That is true. How will we face the challenges with a society that is not properly educated? The letter continued:
      —creative, can work together and has the skills necessary to make something of their lives and schools are there to teach kids these things. If you want great students, you need great teachers.
That is supported by research by people from all political backgrounds. The letter continued:
      If you want great teachers, you need to pay them what they are worth. The O'Farrell government claimed to make NSW number 1 again. How is it going to do that without great teachers?
Carol Jones said:
      The government needs to look at Finland—
Finland has been mentioned already. It is an important example of a place that continually scores in the top four in the Program for International Student Assessment tests and continually shows itself to be a leader in achievement. The Government certainly needs to look at Finland. Carol continued:
      —[which] is leading the world in the production of highly educated school leavers. How does Finland regard and treat its teachers?
I can answer that question: it treats them with respect. It pays them. Finland has plenty of teachers and resources them, and makes sure they can do the jobs they are paid to do. Rod Landy from Woonona High School said:
      You took my solar rebate. I paid for that out of life savings. Now you take my right to a fair wage negotiation. You are out to ruin me. That is clear. You will have Buckley's chance of getting elected in the Illawarra again.
That is a public sector teacher not usually given to making those sorts of statements. Teacher Sharon Taylor said:
      I give an enormous amount of time, energy and often my own money to purchase resources.
I can back up that statement. Far too often I have seen teachers putting in their own money and lashings of their own time to their demanding job. It is challenging enough to stand in front of a classroom, maintain discipline and work with young brains. It is difficult to have the responsibility of looking after the future of our State, community and society. In addition to all of that, teachers give up enormous amounts of their time and energy and often their own money to purchase resources. Sharon continued:
      At a recent anniversary of our school, countless additional hours and efforts were given to make this day memorable. How dare the government not recognise the need to pay teachers, not only inflation increases, but an increase to meet the never ending increasing workload and expectations placed upon teachers.
The list of messages goes on. Steve Ireland, a teacher in Lane Cove—another Liberal electorate—said:
      I understand that the legislation would allow the NSW Government to determine pay rises and arbitrarily to change the working conditions that make our workplace the frontline where we do our best to educate the State's kids—a decent place ...

      We teachers do our best to educate the young people of the community. I believe my students deserve the very best. When I talk to my students it is only very few who talk about the idea of becoming teachers.
What a tragedy. If this legislation, an Act to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions on employment, and for related purposes, is passed we are simply slapping this teacher in the face. Mr Ireland further said:
      I think the government's action will do nothing to attract the future teachers that students in NSW public schools and colleges need.
A truer word could not be said. Susan Mifsud said:
      In addition, you may like to consider the 70% of the TAFE teaching workforce which labours on a casual basis, even though often shouldering a full-time load.
Mr David Shoebridge: What a disgrace that is.

Dr JOHN KAYE: What a total disgrace that is. She continued:
      Over the decades, this has saved the State government millions of dollars and even contravenes its own gazetted policies. So much for the "generous" conditions being enjoyed.
Thomas Panagiotakis from Glenfield said:
      I can't remember this being in Premier O'Farrell's contract with the NSW people!
He cannot remember it because it is not there. He cannot remember it because the mandate is not there. The mandate is a complete and utter fraud. Trevor Townsend from North Rocks said:
      I work under often difficult circumstances to educate the young people of the community I work in, especially students with complex and multiple disabilities. Our students deserve the very best and this means teachers who feel and know that they are not being undervalued by the community and especially the government of the day.
A teacher said this legislation sends a message to him and his colleagues that they are being undervalued. Do the Christian Democratic Party, the Shooters and Fishers Party, The Nationals and the Liberal Party seriously want to proceed with this proposal when they are being told by overwhelming numbers of teachers that this legislation sends the message that they are being devalued? That is crazy. Alexandra Chopping from Bathurst—another Coalition electorate—said:
      As a teacher of History for over 30 years, who has taught for most of those years in rural high schools, I am very concerned about the legislation that has been introduced into the NSW parliament that will remove the right of teachers and other public sector workers, such as police and nurses, to bargain in good faith with our employer over salaries and conditions. We teach the history of Australian democracy and the rights of workers to negotiate pay and conditions. This new legislation will negate our "workers' paradise" that we had from the 1907 Harvester Case—
A case described in great detail by Mr David Shoebridge—

      which delivered a world-first basic wage. We have negotiated our wages and conditions through the Australian Arbitration and Conciliation Commission since 1904. Who gave the new NSW Government the mandate to change this?
Who gave the Government the secret mandate, the mandate we were supposed to guess from the words of Government members when they said they were going to look after the public sector? If this is the Government's view of looking after the public sector, I would hate to see what happens when it is not. Jeff Evans, a teacher at Gundagai High School—an electorate of The Nationals—said:
      ... I cannot believe how brave, if not foolhardy, the NSW government is by treating its employees this way. By instigating such legislation, the NSW government has forfeited any right to say that they are a fair and just government.
Those who vote for this legislation are being judged very harshly. Deborah Arthurs from Redhead, New South Wales, said:
      While I will retire in the near future I am deeply concerned for the long term impact these actions may have on the future of teaching and subsequently the students in our public education system.
Mr David Shoebridge: Another genuine public servant.

Dr JOHN KAYE: Another reality, another story, another person. Like my union, the Construction, Forestry, Mining and Energy Union and so many unions and unionists believe, this is not about their conditions and pay; this is about their belief in the future of this State—a belief that we are about to trample on if we pass this legislation. Deborah Arthurs further said:
      It is important to note that as a teacher of young children I regularly come into contact with a variety of illnesses.
She goes on to talk about the impacts of the legislation. I conclude this group of letters by reading one from Jenifer Milligan from Blaxland, who said:
      I believe that hard won industrial rights have contributed to Australia being a great place to live and work ...
Miss Milligan backs up the point we made earlier that these people are all about absolutely making sure that we have a quality society, not just teachers, ambulance drivers or other public sector workers. They want to ensure 100 per cent that we have a quality society. I make a brief statement about hospitals. I received a text message from a resident in the Illawarra who said:
      You might want to add that rarely a month goes past in the Illawarra without closures of Bulli and other hospital wards because of a shortage of public doctors and senior nurses. How will we keep them now?

This correspondence demonstrates to me that if we send them a message that their salaries will be cut now and into the future we will not be able to replace them. I have received a letter from a staff specialist in public sector medicine, a head of a department with more than 100 medical and non-medical staff.

The Hon. Robert Brown: Point of order: There is so much noise in the Chamber, particularly behind me, that I cannot hear the speech of the Dr John Kaye, in which I deeply interested. Will you ask members to allow him to speak in quiet, please?

The ASSISTANT-PRESIDENT (Reverend the Hon. Fred Nile): Order! Government members will reduce the level of conversation in the Chamber.

Dr JOHN KAYE: I will read onto the record what this legislation will mean for public hospitals. A person states:
      The lack of an independent umpire runs the risk of worsening the staff shortages within nursing, allied medical care.

      There is a developing worldwide shortage of nurses.
This Chamber is being told by a man who runs a clinic with more than 100 medical and non-medical staff that he is very concerned about the outcome that this legislation will inflict on the people of New South Wales—
      How are we going to keep or attract the high calibre staff if their pay and conditions fall well behind other states/countries?
He states further:

      Already NSW pay conditions within staff specialist award fall well behind Queensland and South Australia … again attracting high calibre staff is going to get harder.
If this legislation is enacted it will get a whole lot harder not just because pay and conditions will go down, or because of the insult that this legislation delivers, but because of the anticipation that all governments into the future will turn our public hospitals into low-wage institutions where we find it extremely difficult to deal with the worldwide shortage of nurses. He states:
      An independent arbitrator has the skill to deal with all the complexities within the public sector (health alone is impossible for one person to fully understand)—to expect fairness from a few bureaucrats within treasury is laughable.
He says that a government sector wage policy, cobbled together by a few bureaucrats, hidden in the second bottom drawer, will not have the sophistication that the arbitration commission has brought to this jurisdiction. He adds:
      This sends all the wrong messages. Supposedly the new minister for health was keen to make staff and patients feel valued. To treat staff like this and to make changes with no consideration about the impact on the quality of their care shows completely the opposite. Is Parliament going to remove their independent umpire as well?
The New South Wales Nurses Association wrote to all members of Parliament and made its opposition very clear, and I endorse what it said. My observation is that the work of Professor Christine Duffield at the University of Technology, Sydney, showed very clearly that someone in a ward with a nurse-to-patient ratio, 1:8 has a 30 per cent greater chance of dying than someone in a ward with a ratio, 1:4. This legislation will kill people. This legislation will consign people in public hospitals to their death beds. We will not know who they are but we will know them statistically. As we move into a worldwide shortage of nurses—

Mr David Shoebridge: It is a nurse export bill.

Dr JOHN KAYE: Yes. As we move into an era where we are increasingly finding it difficult to attract and maintain nurses we will find it more and more difficult to have the world's best standard of nurse-to-patient ratio, 1:4 across clinical services. I invite members to argue with Professor Christine Duffield at the University of Technology, Sydney, Centre for Health Service Management, who says it is a 30 per cent increase if the number of patients to nurses is doubled. She backs her statements both with empirical studies and with interviews of nurse workers. I intended to read onto the record and discuss in great detail some 40 odd faxes I received this morning from teachers. I seek leave of the House to table the faxes, for the convenience of the House.

Leave not granted.

Dr JOHN KAYE: I take it that the New South Wales Government is deeply afraid and concerned about what might be in these documents.

The Hon. Michael Gallacher: Point of order—

Dr JOHN KAYE: I retract my statement. Clearly, they are not afraid. I wish to wind up so I retract.

The Hon. Michael Gallacher: It has been a long-standing practice in this House that before documents such as these are tabled all members look at them and check whether the material contained in them is defamatory or offensive, because once they are tabled they are in the public domain. That is why I said no.

The ASSISTANT-PRESIDENT (Reverend the Hon. Fred Nile): Order! There is no point of order.
Will Dr John Kaye conclude his remarks?

Dr JOHN KAYE: I will conclude my remarks. I identify a number of important statements from TAFE teachers around New South Wales who have made strong statements in support of public education and in opposition to this legislation. This material will not be wasted as it will get into the public domain and people will understand the damage this legislation will do. I will now make a number of concluding remarks about this legislation. I put onto the record that this legislation will do untold damage to the people of New South Wales, to our public sector and to the future of the people who work in it. The legislation is unfair, unjust and sets a dangerous precedent.

I join with my colleague Mr David Shoebridge, with members of the Australian Labor Party, with other members of The Greens and members of this Parliament who see that this is a matter of wage justice, of justice and procedural fairness, of good economics and a matter of grave concern. They will not vote for this legislation and will do everything they can to stop it. I signify my intention to vote against this legislation and I oppose it.

The Hon. ROBERT BROWN [8.07 p.m.]: I assure members opposite that I will be very brief.

The Hon. Adam Searle: I have heard that before.

The Hon. ROBERT BROWN: Not from me. I am always very brief. I will add some statistics to the debate and comment on the contributions of Dr John Kaye and Mr David Shoebridge. The statistics from the Department of Premier and Cabinet in the former Government are a bit out-of-date and cover the 2009-10 workforce. The various tables vary in the method of calculation. In that financial year there were approximately 317,000 to 322,000 public sector employees and the total workforce in New South Wales was approximately 3,600,000 employees. I note that Dr John Kaye referred to the differences between the equivalent wage bands between the public sector and the private sector. I agree with Dr John Kaye.

The private sector tends to be paid on the bases of what we would call equivalent work bands more than the public sector. But when we look at increases in wages over the past 13 years we get a slightly different picture. Between 1997 and June 2010 the New South Wales public sector's wage increases have outstripped the private sector by a cumulative 10.4 per cent over the 13 years—and I know that is not much per annum—the public sector and the rest of Australia by 5.8 per cent and the Federally registered wage agreements by 4.9 per cent. I point that out simply to give this debate a little bit of balance. I note that Dr John Kaye was a little disparaging of my colleague Mr Robert Borsak when Mr Robert Borsak—

Dr John Kaye: I was disparaging of his remarks.

The Hon. ROBERT BROWN: My apologies. I think Dr John Kaye made the statement that even though Mr Robert Borsak may have been an accountant for 40 years he did not know much about economics.

Dr John Kaye: You will have to look at Hansard but I think I said his economics was inaccurate.

The Hon. ROBERT BROWN: I would put my money on Mr Robert Borsak over Dr John Kaye any day in relation to his understanding of economics. But I am not an accountant so I bow to Mr Robert Borsak's more competent knowledge of this subject. Dr John Kaye is quite correct: when the Government is balancing the budget of course there are two sides to the ledger—expenses and income. It is quite evident that the receipts are down between this time last year and now, and they are going to go down further. The general economic outlook in New South Wales across all sectors is not even. I have quite a bit of experience in the building industry and I know for a fact that at this time the building industry is in a bit of strife, and that affects a whole range of taxes that go into the State Government's coffers—payroll tax for one.

The property industry is flat at the moment and therefore sales tax revenues are down. The GST revenue is down. I do not know how many members on either side of this House have had to run a business or have owned a business. I have done both. It is a hard fact of life but when you are facing a problem of financial security in a business or a government you have to make decisions. It is fine for The Greens to—I will not use the word "vilify", because they are not doing that—try to give the impression that the Shooters and Fishers Party and the Christian Democrats are simply giving the Government its way and the Government will cut and slash and burn. That perhaps is the problem. In my discussions with Mark Lennon from Unions NSW we agreed that we would like to see the Government given the opportunity to try wage restraint before it starts cutting jobs. Dr John Kaye made a very important observation in reply to a bit of a flippant remark by my colleague about cutting numbers and backroom staff versus front-room staff.

Mr David Shoebridge: It wasn't flippant at all. It was a direct threat to cut 9,000 staff. It's not flippant if it is your job. There's nothing flippant about your job being outsourced on public radio.

The Hon. ROBERT BROWN: I am entitled to my opinion as to what Dr John Kaye's imputations were, and so are you. The point I am trying to make is that while these all-care-no-responsibility Greens sit on the other side of the House it is left to us to try to give the Government the opportunity to perhaps moderate its wages income and save public service jobs.

The ASSISTANT-PRESIDENT (Reverend the Hon. Fred Nile): Order! Mr David Shoebridge will restrain himself so the Hon. Robert Brown can continue his contribution.

The Hon. ROBERT BROWN: The Shooters and Fishers Party, and I think the Christian Democratic Party, have taken the view that the Government needs to be given the chance to see what it can do to modify the wage demands on the public sector. It is a very big chunk of money—$25 billion plus about $3 billion in superannuation. Savings can be achieved in one of two ways: ameliorate the increases in the forward estimates or simply reduce the numbers. There is a third way, of course: start interfering with work hours. If the Government interferes with work hours for front-line staff in particular who work shift work such as nurses, police and fire brigade employees it may as well cut numbers, because it will have the same effect on the delivery of public services.

Those areas across the government sector are not all essential, and when the Government comes to choose where it will make cuts, if it is going to make them, unfortunately it will probably make cuts in backroom staff—not because the backroom staff are any less valuable than front-line staff, although we admire the police, who stand a chance of getting shot to death every day on the streets—simply because making cuts in those areas of the public sector may affect the delivery of services slightly less. We have taken the view that the Government has a mandate to look after the overall financial health of the State and that is why we have said that on the condition a couple of deals are made—and The Greens are quite right, there were deals made: the deals that the Government would ameliorate some of the issues in this legislation and in turn the Government would get our conditional support.

Mr David Shoebridge: We will see the rest of the deal in the coming months, Robert, and you know it.

The Hon. ROBERT BROWN: I acknowledge the interjection. Mr David Shoebridge may feel that he will see the reverse side of some fictitious deal in the months to come, but he has not been in this place for 16 years, and neither have I, but with the outrageous deals The Greens have done with the Government over the last 16 years he would know all about deals.

Mr David Shoebridge: So you don't deny it?

The Hon. ROBERT BROWN: No. I do not deny it because I cannot be bothered denying it. It is as simple as that.

The Hon. ADAM SEARLE [8.16 p.m.]: Unsurprisingly, I also oppose the Industrial Relations Amendment (Public Sector Conditions of Employment) Bill 2011. Before I commence my contribution I say that I am in awe of some of the preceding contributions. They were quite heroic and I do not believe that my contribution tonight will be their equal. I come to this debate with some practical knowledge of the New South Wales system of industrial relations. I note that one of the effects of the bill before this House, if it is enacted, will be to visit this new regulation-making power on matters that are currently pending for hearing before the New South Wales Industrial Relations Commission. Until quite recently I held a brief as a barrister for one of the employer entities in one of those proceedings—the Roads and Traffic Authority, for which the Hon. Duncan Gay is the responsible Minister.

I oppose the legislation because in my view it is defective in its reasoning and in policy terms, potentially in legal terms, and certainly in terms of fairness. Also, it comes out of the blue, with no adequate warning to the community, to the affected industrial parties—the relevant trade unions—or to the people of New South Wales. Previous speakers have mentioned that the Government did not take this particular plan embodied in the bill to the electorate in March. As a previous speaker has indicated, the Government knows that if it had taken this plan to the electorate it would have been rejected, just as the electorate rejected the harsh and unfair WorkChoices laws enacted by the Howard Government.

The key difference is that, while it took the Federal Coalition nearly a decade before it overreached itself through having control of the Senate, the New South Wales Coalition Government has reached the same point in only two months in office. Dr Kaye and the Hon. Robert Brown mentioned mandate. The Hon. Robert Brown also referred to the Government having a mandate in connection with the overall health of the State. From that I assume he means the financial health of the State budget.

Mandate is a funny thing in electoral history, particularly in parliamentary terms: it is often invoked and very few people seem to understand what it means. It does not give a government any kind of legal right or entitlement to have its way on any particular bill or policy. However, it does give a government some moral standing, some moral suasion if—sometimes it is a big if—it has taken a platform, a specific policy or, in some cases, specific legislation to the people at an election. In those somewhat rarefied circumstances governments can legitimately claim to have a mandate for a particular proposal.

If this Government is basing its authority to have its way on this legislation simply on the fact that it had a big win in March, in my respectful submission that is not sufficient; nor is it sufficient to point to the duty given to any government for the peace, order and good governance of the State to say, "We are the Government. We are responsible. We have overall custodianship of the health of the budget." Every government has that. It does not give any government a right to any particular policy. I do not think anyone would sensibly try to maintain the proposition that this Government has a specific mandate for the contents of this bill.

The mandate I am thinking of—and my knowledge is somewhat limited—is, for example, the Whitlam Government in both 1972 and 1974 at a re-election had a very specific platform, that is, frustrated in significant measure by the hostile Senate. The subsequent re-election of that Government in 1974 gave it not only a continued mandate for those specific proposals but, under the terms of the Australian Constitution, the right to hold a joint sitting to have certain laws enacted.

The only other clear example I can think of is in Britain with the 1910-11 conflict over four or possibly five elections between the House of Commons and the House of Lords, which ultimately led to the House of Lords having its powers curtailed, particularly over money bills. Prior to the election some trade unions in this State warned that the Coalition had not ruled out cutting public sector jobs, as was reported in the Australian Financial Review on 25 March. Noted labour law academic Andrew Stewart said, quite presciently:
      …the advent of a New South Wales Coalition Government could mean the end of the State Industrial Relations Commission, which plays an important role in the public sector.
This was in the context of a discussion in the article about whether a New South Wales Coalition government would refer the remainder of the State's industrial relations powers to the Federal Government, as the previous Government had given the balance or residue of the private sector coverage. Members will be cognisant of the fact that when the Rudd Government enacted its fair work laws it did not wind back the assumption of jurisdiction over many occupations and areas covered traditionally by State arbitral systems.

The Rudd Government, being fond of centralisation, also did not unwind that; the State had a residue of smatterings of private sector coverage, and the previous Labor Government referred the balance of that coverage to the Federal Government. The context of the article was whether a Coalition government would seek to maintain a State system of any kind or whether it would hand it all to the Federal Government. However, the Coalition gave no indication of what it was planning or of what is before us in the House tonight. The then shadow Minister for Industrial Relations, the Hon. Greg Pearce, was reported as saying that there was:
      … a significant level of reform exhaustion in the whole industrial relations space.
That was reported in the Australian on 11 March this year. This was specifically in the context of a discussion about occupational health and safety reform plans, in particular the potential enactment of the so-called harmonised national model laws. In that context the Minister for Finance and Services, and Minister for the Illawarra is reported as saying:
      Our system will remain with WorkCover and the Industrial Relations Commission playing their roles ...

      We don't have any plans to go further than that. I have heard the arguments from a lot of lawyers. I am an old lawyer myself.
Clearly, the reference to the commission and WorkCover playing their roles gave the impression that the roles they had then would be maintained into the future under a Coalition government. Prior to the election the Coalition gave the clear impression that it had no specific plans to change the role played by the New South Wales Industrial Relations Commission, the independent umpire, in the New South Wales industrial relations landscape. As we have seen with the work safety laws passed last week, this was not quite the full story. The Industrial Relations Commission will now have only a residual role in occupational health and safety matters from next year, taking from the New South Wales Industrial Court the majority of what was its remaining jurisdiction.

Now, the breath barely having been drawn from that debate, the Government has a plan before this Chamber to severely attack, curtail and neuter the Industrial Relations Commission's arbitral functions as they affect those working in public sector employment as defined in the bill. While the bill is reasonably short, if passed by this House—I earnestly hope that it will not be passed by this House—its effect will be all pervasive. It will be—I do not think this is an exaggeration—devastating to the rights of those currently working, and potentially in the future working, in the New South Wales public employment sector, and perhaps even more broadly, given how widely the new powers the Government seeks in the bill are presently cast. I will return to that matter.

I refer now to the text of the Industrial Relations Amendment (Public Sector Conditions of Employment) Bill 2011, which is a bill for an Act to amend the Industrial Relations Act 1996 to require the Industrial Relations Commission to give effect to certain government policies on public sector conditions of employment and for related purposes. I will pause there. When the Government announced the policy embodied in this bill it was at great pains to promote the view—which in my respectful opinion is wrong—that this is all about some public sector wages policy. It gave the impression that it was referring to a particular policy. It said it was the policy of the previous Government, which is completely and utterly wrong. I will develop that argument as well.

The text of the bill is not about wages or wages policy. Indeed, it does not seem to be about any particular policy. It is a kind of big empty space, a blank canvass for the Government, if this law is enacted, to choose its own adventure, to colour in the details as it sees fit after the law is enacted. This law, or a law of this kind, is sometimes referred—perhaps not entirely historically accurately—as a Henry VIII law. That is apparently because that monarch of Britain liked to encourage Parliament to pass laws that did similar things; that is, they conferred upon the monarch, as it was in that historical context, a broad power to do whatever he liked. It allowed him to fill in the details after the Parliament had given some broad enabling permission in the form of an Act. That technique was used also by the Howard Government in the enactment of its WorkChoices legislation. The centrepiece of this bill is proposed new section 146C, which is headed "Commission to give effect to certain aspects of government policy". It provides:
      (1) The Commission must—

not "may", but "must"—
          when making or varying any award or order, give effect to any policy on conditions of employment of public sector employees:
          (a) that is declared by the regulations to be an aspect of government policy that is required to be given effect to by the Commission, and

          (b) that applies to the matter to which the award or order relates.

Historically in New South Wales, wages and conditions have been set by the current Industrial Relations Commission, a body which has both judicial and arbitral functions and comprises judges, non-judicial deputy presidents and commissioners, and when composed only of the judicial members constitutes the commission in court session, now known as the New South Wales Industrial Court. By legislative fiat in the Industrial Relations Act at section 152 it is declared to be a superior court of record having equivalent status to the New South Wales Supreme Court. This maintains a long historical tradition in relation to that tribunal. The commission's statutory predecessors also comprised judges of the same status and standing.

Although in the modern context when it is operating in its arbitral phase as a tribunal it may not be known at law as a court, nevertheless, in its processes of hearing matters, applications and evidence being received and tested by cross-examination in a manner very similar to a courtroom, being tested and evaluated in the same way as a court and having the members of the tribunal, whether judges or not, applying reasoning either to or similar to the judicial standard—although strictly speaking it does not necessarily always constitute a court—it has been long accepted by all sides of politics in New South Wales, until at least the last 20 or 30 years, that the appropriate way to have wages and conditions of employees in this State determined is by a fair, independent and impartial tribunal whose members take a judicial oath and have the judicial protection of their tenure and remuneration. To all practical intents and purposes, it has had similar independence and standing as a court.

Although governments of various stripes have passed different forms of legislation requiring this court or tribunal to take into account certain matters in determining issues and controversies, disputes and applications that come before them, never has any government demanded, required or straight-jacketed the commission or forced its predecessors into a position where they must absolutely comply with a policy mandated not only by the government of the day but through various legal entities that are emanations of the State of New South Wales. We have a situation where in effect a party to proceedings before the court and tribunal is, through legal power conferred on it, able to, if not absolutely determine the outcome, certainly shape it very heavily by limiting the relief that can be granted against it in proceedings, in particular, proceedings that create awards or enterprise agreements or in the making of any other order. I will come to the part of the bill that defines "award" or "order", because it is very broad and seems to encompass pretty much any decision the New South Wales Industrial Relations Commission makes or is likely to make in the foreseeable future.

This legislation provides that the commission must give effect to the policy if a policy is declared by regulation to be an aspect of government policy that the commission is required to give effect to. It does not talk about the wages policy or a specific document, it is just a policy, and it is a policy that is declared at some future point. The Government has said that it is the previous Government's policy. That is wrong. Members opposite are saying, "Trust us, the cheque is in the mail. We'll give you the details later." There are no details. Proposed subsection (2) provides that any such regulation may declare a policy by setting out the policy in the regulation. Again, at some time in the future, if this Chamber in my view unwisely confers upon this Government the ability to make this declaration, it will be able to declare a policy. Again, it is not a specific policy; it is any policy that happens to take the Government's fancy, as long as it relates to an aspect of government policy that the commission is required to give effect to.

The proposed subsection goes further. The policy may be set out in the regulation. At least that would have some benefit of transparency. It would be in the declaration, order or regulation and everybody could see what it was and its terms and try to understand what it meant in a practical sense. At least it has that benefit. However, that is not good enough for this Government. The regulation may adopt a policy set out in a relevant document referred to in the regulation. I may be wrong, but as I read the legislation it would be possible if this legislation were passed for this Government to make a regulation dealing with maternity leave that provided "in making any order or award, the commission is required to give effect to the Government policy on maternity leave", and then describe that document or name it, but without setting out the policy or its terms in the regulation. That would be possible, indeed dare I say likely, if proposed section 146C (2) is enacted in its current form. The arbitral independence of the commission would be restricted by a regulation that would not necessarily be required to set out policy to which the commission must give effect.

To take it another step, what if the policy that is named in the document is not publicly available? What if it is a document that has gone to Cabinet and is Cabinet in confidence? The regulation is made, assuming it is lawful—and I think there are some legal issues with this proposed law that I will come to in some detail—saying the commission must in its arbitral functions in making any order give effect to this policy, and it is required to name the policy, but the document is not available. As a matter of practicality one would assume that at least the commission would have to know what is in that document but there is no requirement anywhere in the proposed legislation that requires the Government to tell anybody else what is in the document.

Lest it be said this is a somewhat outlandish or far-fetched scenario, let us deal with something a bit more tangible. Let us take, for example, the death and disability awards of which I think there are at least three in New South Wales. One is applicable to the New South Wales Police Force, one applicable to the Ambulance Service, and one, I believe, applicable to the New South Wales Fire Brigade. I am not sure about the status of the two applying to the Ambulance Service and the Fire Brigade, but I believe the police death and disability award technically expired a year or two ago.

The award continues pursuant to the terms of the Industrial Relations Act. It continues in force and effect because neither party has given notice to the other that it wishes it to be rescinded or become inoperative, and I understand that the New South Wales Police Association and the previous Government had been engaging in a review of the award, its terms and the benefits it confers with a view to potentially making some changes. I note in that regard there was an article in the Daily Telegraph, I think on Tuesday, setting out some of the financial difficulties said to be besetting the police death and disability award.

If paragraphs (1) and (2), particularly paragraph (2), of new section 146C were enacted the New South Wales Government would become empowered to promulgate a policy, for example, with respect to death and disability benefits that would apply to the New South Wales Police Force or, perhaps even more broadly, death and disability policy that is applicable across the whole public sector as defined in this bill. If we then assume for the sake of this argument that the benefits to be conferred pursuant to the Government's policy were a fraction of what is currently available in the police death and disability award, if that was the policy the Government had and it made it into a regulation of the kind envisaged in this bill, we would have a situation where, in hearing any procedural process to make new award, the hands of the independent umpire, the New South Wales Industrial Relations Commission, would be shackled.

The commission would not be able to make an award based on the evidence it receives and hears and it would not be able, pursuant to section 10 of the Industrial Relations Act, to make an award reflective of what the commission, based on the evidence, finds are fair and reasonable conditions of employment. Its hands would be tied to give effect only to government policy. This could have drastic effects to those in the Police Force. The same could happen with regard to the other death and disability awards as they expire and come up for renewal. I refer to contributions made in this debate—I was going to say last night, but it is tonight. It has been tonight for a long time. I think this is the longest Thursday I have had for many years, probably since I was last in and around this place.

But, whenever temporally those contributions were made, one contribution from you, Mr Assistant-President—or perhaps it was from a member of the Shooters and Fishers Party—indicated, if my memory serves me right, there was the possibility that New South Wales Police would be taken out of the regime proposed in this bill. If my memory serves me correctly, and given the hour of the day and how weary we all were, my memory may be imperfect, but my recollection is it was said that the police would be removed at least in so far as the proceedings pending before the commission were concerned. Today, later on Thursday, the Premier issued a press release entitled, "Crossbench Support a Win for Taxpayers." I will not burden honourable members with the full text of this press release but I will read two paragraphs only. It states:
      But he said crossbench MPs in the upper house had sought to have uniformed police excluded from the legislation.

      "I appreciate the views of the cross benchers that there are special circumstances relating to police so we have agreed to the police exemption, "Mr O'Farrell said.
Obviously I am not privy to any discussions that have been taking place between the Government and members of this House and I do not know exactly what the police exemption will constitute, but this press release seems to suggest it is for uniformed police. Of course, many sworn police officers are doing important and, indeed, dangerous work—dare I say it, front-line police: forensic staff, undercover police and undercover operatives gathering important intelligence to thwart organised criminal activity.

If this police exemption is going to be specifically crafted to uniformed police, obviously many officers will miss out. That is a debate for another time, for the committee process, but I use that as an example of a flaw, a weakness or, dare I say it, a vice of the law that is being proposed. A regulation confines the hands of the independent umpire and the regulation does not necessarily even have to set out what that policy is. The policy could be in a document, a confidential document that no-one gets to see, other than, for practical reasons, members of the commission.

The Hon. Walt Secord: Point of order: There is too much noise in the Chamber. I am sitting next to the member speaking and I cannot hear him.

The Hon. Michael Gallacher: To the point of order: We do not want to get sillier than we currently are and I ask on this occasion that that point of order be well and truly ignored.

The ASSISTANT-PRESIDENT (Reverend the Hon. Fred Nile): Order! The Hon. Walt Secord has a right to ask members to reduce the level of noise in the Chamber. Therefore, I ask members to reduce their audible conversations. The Hon. Adam Searle is speaking in a very quiet but dignified way so members have to concentrate on his presentation.

The Hon. ADAM SEARLE: New section 146C (2) provides that the regulation may declare a policy by adopting a policy set out in a relevant document. Let us say the regulation is made saying that the commission is bound to give effect to a policy on sick leave, a policy that is to apply sector wide, to public sector employment as defined in this bill. Let us say the policy is called the New South Wales public sector employment sick leave policy and it contains certain terms. Let us say that policy is made today and the regulation is made tomorrow, and the commission is bound to give effect to that policy. What happens in a week or two, or a month or two, or next year, if the Government decides, as it would be entitled to do, to change that policy? The Government could say, "We don't like that policy", or, "In light of experience the policy has defects or weaknesses or is too generous so we will just rewrite it." The policy is not published anywhere, it is not put in the Government Gazette; it is just shredded and then it is re-written. What is the practical effect of that?

The regulation says the commission is bound to give effect to the policy but which policy? Is it the policy that was in existence at the time the regulation was made? Or, because the policy binding on the commission may be made by adopting a policy set out in a relevant document named in the regulation, as that policy document evolves or changes are we to assume that the duty that is then imposed on the commission by this section is also altered in a way that is not done transparently or publicly? The regulation remains unchanged, but the policy changes from time to time, perhaps over the passage of some years. The policy is not published, and it is not publicised.

If we assume for a moment that the commission at least knows about the changes, affected parties may not know about them; indeed, they probably would not know about them. In the way in which the legislation is currently framed there is the real possibility of confusion as to what is the obligation to be imposed on the commission. What policy must the commission give effect to? It is a complication or confusion that arises from the way in which this legislation is constructed, albeit the legislation as drafted appears to have a deceptive simplicity. The legislation looks straightforward, but one does not have to be too imaginative to go through a couple of different scenarios to see real, complex legal problems that could easily arise—indeed, would be likely to arise in my view—if the legislation is enacted in the form that is before us tonight. Subsection (3) of proposed section 146C provides:
      An award or order of the Commission does not have effect to the extent that it is inconsistent with the obligation of the Commission under this section.
That is too big a shackling. The commission is required to give effect to the policy, but anything the commission does that is different is invalid. That is a very serious and important curtailment on the independence of this tribunal, it is a very important curtailment on the rights and liberties of workers in New South Wales who still have the legal right to have their matters dealt with before this tribunal, and it is a quite devastating and pervasive provision, particularly when one links it to the confusion that arises from the preceding subsections. Subsection (4) of proposed section 146C provides, "This section extends to appeals or references to the Full Bench of the Commission." This means that whatever burdens or obligations that are imposed upon single members are also visited upon the Full Bench of the Commission.

Subsection (5) of proposed section 146C provides, "This section does not apply to the Commission in Court Session." That is an important provision. Courts are well understood to be completely separate and independent from the Executive arm of government. Indeed, whether one is talking about the Australian Constitution or the New South Wales Constitution, there are three limbs of government. There is the Legislature, where we are tonight; the Executive, the Ministers of State drawn from the membership of each House; and the judiciary, the independent courts whose members take a judicial oath and who cannot be removed during their tenure except on an address by each House. The matter of the two magistrates that will come before this place in the future is one example of that heavy responsibility that rests on the Legislature in connection with the judiciary. It is only in those exceptional circumstances that members of the judiciary, properly described, are able to be removed during their term. As I indicated earlier, their remuneration is also immune from diminution during their term of office.

While tribunals are not necessarily part of the judiciary in a strict legal sense in constitutional theory, in our system of government, given the complexities of modern life, the plethora of different laws, and the rights, entitlements and obligations that citizens have in connection with each other and with the Executive Government, governments of all persuasions and all jurisdictions have created a number of administrative tribunals where people can have specific controversies or disputes determined. The Industrial Relations Commission is one of those administrative tribunals, although it is not quite an administrative tribunal as that term is understood in the law simply because it is largely composed of people who are also judges. The Industrial Relations Commission also sits as a court when composed only of those judges, except in the very limited and unusual circumstances of hearing reviews of any order by the Commissioner of Police to remove an officer due to a loss of confidence in that officer under the New South Wales Police Act 1990.
    Section 181K of the Police Act has a somewhat unusual provision, which is wholly absent from the Industrial Relations Act, which says that removal matters arising under section 181D of the Police Act must be heard by the Industrial Relations Commission composed of a judicial member, but it only constitutes the commission and not the court in that regard. Subsection (6) of proposed section 146C provides:
        This section extends to proceedings that are pending in the Commission on the commencement of this section. A regulation made under this section extends to proceedings that are pending in the Commission on the commencement of the regulation, unless the regulation otherwise provides.
    When new laws are made, whether in New South Wales or in other States, or at the Commonwealth level or in other countries with legal systems recognisably similar to our own, the convention is that when a law is passed or amended to change rights or entitlements, those changes are prospective. They take effect on and from either the date that the new law takes effect, or from another date named in the law. For example, revenue laws would be announced, they may not of course be passed by Parliament on that day, but part of the law when it is introduced is that it will take effect from the day it is announced. Technically there is a slight retrospectivity in such a law, in that it applies at a point in time earlier than when it becomes a law. However, that is made up for, at least in an ethical or moral sense, by the law only taking effect from the day it is announced. But I digress. The convention is that these laws are prospective, and that they do not affect rights and entitlements that have already vested or accrued. In particular, the convention is—and again it is only a convention—that the Legislature when enacting new laws does not interfere in proceedings that are already before courts or tribunals.

    Such a notion originally arises from the notion of the separation of powers, which of course is more pronounced in places such as the United States than it is here. However, in the Australian Constitution, by virtue of chapter 3, which sets out the separation of the judiciary from the Executive and Legislature arms of government, it does apply at the Federal level. In New South Wales, part 9 of the Constitution Act, which deals with the judiciary, has been entrenched by a referendum in 1995 and there is an argument that, at least to some limited degree, we also have some form of separation of powers in New South Wales.

    As a strict legal matter, that would apply only to courts. But, again, it has been the convention of this Legislature that in making a new law or amending an existing law one does not interfere with existing rights, particularly with regard to litigation that is already on foot. There are a number of matters that are pending in the New South Wales Industrial Relations Commission. We have heard, of course, there is an application made by the Police Association of New South Wales. I believe evidence has been filed by all parties in that matter.

    The Hon. Greg Donnelly: Point of order: The Leader of the Government is distracting. He is talking to the honourable Minister and I cannot hear clearly the contribution being made by the honourable member on this side. I ask you to call him to order and to cease and desist.

    The Hon. Rick Colless: To the point of order: I was sitting next to the Minister and just in front of the Leader of the Government and I could not hear him.

    The Hon. Greg Donnelly: I could.

    The Hon. Rick Colless: You are sitting a lot further from these members and you could hear them and I could not. I could clearly hear the member addressing the House so there is no point of order.

    The Hon. John Ajaka: To the point of order: The standing orders are very clear that members are not to converse aloud. Clearly there was no conversing aloud. I was standing there as well. It is interesting to note that the member on his feet, a very learned counsel, at no time appeared to be distracted and at no time indicated he was distracted. The only time he was distracted was when the point of order was taken.

    The ASSISTANT-PRESIDENT (Reverend the Hon. Fred Nile): Order! I note that the Hon. Greg Donnelly is sitting behind the member with the call, so that may be part of the problem. Members will keep audible conversation to a minimum. The Hon. Adam Searle has the call.

    The Hon. ADAM SEARLE: I am sure the Leader of the Government meant no discourtesy.

    The Hon. Michael Gallacher: And I am sure you are better than to be distracted by my having my back to you.

    The Hon. ADAM SEARLE: I am not so sure about that. To return to the pending cases, the police case is a very important one. The New South Wales Police Association has no doubt invested a lot of time and resources, not only money, in preparing this case and I am sure the Commissioner of Police has also invested a lot of resources in meeting the case. Many hearing dates—I think three or four weeks—have been set down. I do not know at present whether that case will be affected by this law. I guess none of us will know until we emerge on the other side of this process, but some other cases are also pending. I believe the NSW Nurses Association has a night-shift case that is pending before the commission.

    I believe government-employed bus drivers have a case before the commission in June, or perhaps my memory is faulty and the award expires in June and they will need to make an application. I do know that the Roads and Traffic Authority and other budget sector agencies are respondent to a very significant and large case being brought by the Public Service Association for a new award that expires on 30 June. Notwithstanding the fact that the award has not yet expired, 15 hearing days have been scheduled for that matter in August. As I indicated at the outset, I know because I previously had the brief on that matter for the Roads and Traffic Authority.

    The Hon. Duncan Gay: Which matter is that?

    The Hon ADAM SEARLE: The Public Service Association case. Of course, I no longer have that brief, but the point being there are a lot of resources—

    The Hon. Duncan Gay: I heard you're short a quid and you have to do some other work, or I read that you were.

    The Hon. ADAM SEARLE: I would not believe everything you read, particularly not in some publications.

    The Hon. John Ajaka: I wish you'd tell some of your colleagues that, they have been quoting us all day.

    The Hon. ADAM SEARLE: This debate is at some risk of digression. It must be because it is getting to an advanced hour on Thursday. This Thursday is getting quite lengthy—longer than 24 hours, I am sure. I have some little way to go. I am sure it will not be a patch on some earlier contributions in terms of their heroic stature.

    The Hon. Catherine Cusack: He's looking at you, Greg, when he says that.

    The Hon. ADAM SEARLE: The contribution by the Hon. Greg Donnelly was also heroic. Hearing dates have been set for pending cases and the parties—unions, union members and government agencies—have all invested a lot of resources to have these controversies dealt with in the historic, traditional way, proceeding by way of evidence that is able to be tested and evaluated. Then the tribunal, after hearing all the evidence, will make an informed decision in the usual way to reflect in the form of an award, fair and reasonable conditions of employment pursuant to section 10 of the Industrial Relations Act. It would be a very significant and unusual step—I do not say unlawful—for this Parliament to interfere with those existing rights, to curtail the right to that hearing and to do so in a very invasive way by shackling—dare I say crippling—the autonomy of the independent umpire to make its own decision and to be constrained by any new policy or regulation made pursuant to this bill if it becomes law.

    In a case in the late 1980s known as the BLF case there was a controversy about whether this Parliament could in effect make a judicial decision passing a law to deregister the Builders Labourers Federation. That was challenged as not being a law with respect to peace, order and good government. That matter was defended ably by the New South Wales Solicitor General, as he then was, Keith Mason, QC, leading a junior barrister, J. W. Shaw. The Court of Appeal held that this Parliament, similar to but not quite the same as the Mother of Parliaments in Great Britain was sovereign—that is, its powers were not circumscribed or limited except insofar as they were by the Australian Constitution in the Australian setting.

    The Hon. Dr Peter Phelps: And the lead judgement on that was?

    The Hon. ADAM SEARLE: Justice Kirby's.

    The Hon. Dr Peter Phelps: Justice Michael Kirby. It was a brilliant judgement.

    The Hon. ADAM SEARLE: It was a brilliant judgement by Justice Kirby, President of the Court of Appeal as he then was—an erudite and learned exposition of the law not only as it then was but as it remains. Again, I digress. The Parliament has the power to do what is proposed in new subsection (6), but all the history, all the tradition, all the sense of fair play, of reasonableness, of not interfering with people's rights as they exist at the time a law is made to make these changes only prospective, would be sat on its head harshly and unfairly to interfere in these pending matters to make them subject to the very pervasive, not to say draconian, provisions that this bill would enact if passed by this House. It may be one thing to say that from tomorrow people's rights have changed, but to say to someone, "You do not have the rights you have today and that you had yesterday because we are going to pass this law and confiscate the rights retrospectively. Hard luck for you", is not fair and it is not reasonable. We should not do it. New subsection (7) says:
        This section has effect despite section 10 or 146 or any other provision of this or any other Act.

    I briefly refer honourable members to section 146 of the Industrial Relations Act, which states:
        146 General functions of Commission
        (1) The commission has the following functions:
            (a) setting remuneration and other conditions of employment;

            (b) resolving industrial disputes;

            (c) hearing and determining other industrial matters;
    industrial matters are defined in section 6—
            (d) inquiring into, and reporting on, any industrial or other matter referred to by the Minister; and

            (e) functions conferred on it by this or any other Act or law.
    Subsection (2) is important for historical and other reasons that I will come to. It states:
        (2) The Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard to:
            (a) the objects of this Act; and

            (b) the state of the economy of New South Wales and the likely effect of its decisions on that economy.
    The Minister's second reading speech contained some criticism of the commission in its wage fixing. The commission has a set of wage-fixing principles that it promulgates every so often, pursuant to which it hears, determines and arbitrates matters particularly for new awards containing conditions of employment, including remuneration. The Minister rightly said, "... the commission exercises a broad-ranging discretion when it comes to wage fixing." But he also went on to say it was "... conducive to submissions that the Government's wages policy should be disregarded or that other considerations are more significant than the wages policy".

    It is true that the current legislation does not mandate that the commission must in every material particular do nothing more or nothing less than adhere 100 per cent to any policy that any particular government might promulgate or rely upon at any given moment. But, particularly when looking at section 146 (2) of the Act as it currently stands, the commission in making any of these decisions must take into account—must, not may—the public interest, the objects of the Act and the economy of New South Wales and the likely impact of its decisions. It already has to do those things. Section 10, reflecting much earlier jurisprudence developed in this State since the early twentieth century, states:
        The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees.
    Axiomatically, in any award made by the commission to the extent it contains conditions of employment, which it must, the conditions are presumed to be both fair and reasonable. That is known as a rebuttal presumption. In the pastoral industries case the commission held that when an award expires and application is made for a new award in the same space, it can hear evidence to the effect that some aspect of that award was unfair, either by deliberate act or omission, but starts from the presumption that the awards are both fair and reasonable. As a matter of fairness to all parties, how can that be objected to? The commission is mandated only to make awards in its own opinion—but not in its own opinion plucked out of thin air—informed and shaped by the evidence led in proceedings before it by one or more of the parties.

    The commission is not able to simply decide what it thinks is a good idea to make a decision that is at complete variance to the preponderance of evidence in the proceedings before it, or indeed to make decisions that are on the basis of the evidence that was brought before it frankly perverse. It simply cannot do that. If it does do that, it does not conform to the power reposed in it and its decision can be, at least within the commission from a single member to a Full Bench, appealed internally. Whatever criticisms have been levelled at the current commission over a number of years, there has been no allegation that I know of that decisions have been perverse to the extent just described.

    New section 146C (7) is quite a remarkable provision, in that new section 146C (7) has effect despite section 10 or section 146. What is the effect of that? The Industrial Relations Act says to the commission that it can only make awards that contain fair and reasonable conditions of employment. It is not proposed to change that. But this new provision will sit over the top of that, and it will provide that the Government make a regulation that curtails the independence or discretion to make a decision based on the evidence before it, requiring it to only adhere to any policy that is made through that regulation. The very likely effect of that is that we will have a situation where the commission, because of the regulation and the policy it is required to give effect to, will have to make an award or order that based on the evidence before it is not fair and reasonable. It sets up an internal conflict within the legislative framework in a way that causes different parts of the Act then to be inconsistent with others, particularly as to fair and reasonable conditions of employment.

    The tribunal would have to somehow try to reconcile these differences and the effect would be the very unsatisfactory situation where a meritorious case, shall we say, comes before the tribunal, the compelling nature of which ordinarily would not be able to be resisted, but it then runs squarely into the policy of the Government, in the form of the regulation, that binds its hands and it can do nothing more than make an award or order giving effect to that policy, creating an award that is neither fair nor reasonable in terms of the condition of employment it then provides. Can it then not make any award or order? Section 10 is still there saying you can only make an award or order that is fair and reasonable.

    If the commission forms the view that what it is required to do by 146C is neither fair nor reasonable, do you then have a situation where you cannot make any award or order? That would be a ridiculous situation but nevertheless it becomes a very realistic one when one looks at the stark language of new section 146C (7) and the conflict it sets up within the legislative architecture of the Industrial Relations Act. These matters of complexity of legal difficulty can always be sorted out through the processes of litigation, and ultimately the commission or some higher court will sort it out to the parties. Nobody wins in that situation except the lawyers, after much time and difficulty.

    We have a situation here, again, where in a very important material particular this proposed law creates legal difficulty, confusion and uncertainty for those parties who will still have to, through the processes of the commission, have their employment relationship regulated. It is simply not satisfactory to have a situation like that where, on the one hand, because of the policy, the awards or orders made will be neither fair nor reasonable, or where the commission because it feels that it has to make only decisions that are fair and reasonable but is prevented by the regulation you have a situation where employment relationships of certain kinds may—I can only say "may" because this is uncharted territory; legislation of this kind has never been seen before in this State nor in any other jurisdiction of this country that I am aware of—create a situation where those employment relationships will no longer be able to be regulated by awards or orders of the commission. Perhaps that is the intention. If so, it is not an intention that is professed by the Government.

    If we take the Government at its word that its intention is simply to give effect to certain policies, then clearly this would be an unintended consequence of the bill now before us. It will be most unfortunate for the parties, who then have to grapple with this in a realistic and practical sense. Of course, one of the great hallmarks of the New South Wales industrial relations system has been its practicality, its efficacy and its user-friendliness to industrial parties such as governments, government agencies, employers, employer associations, trade unions or their members, or indeed individual litigants. The hallmark of the system of the 1996 Act is not just fairness and reasonableness but accessibility and user-friendliness. This will be brought undone by new section 146C, if it is enacted in its current form.

    Proposed section 146C (8) defines award or order. It includes an award or an exemption from an award, a decision to approve an enterprise agreement, the adoption under section 50 of the principles or provisions of a national decision, or the making of a State decision under section 51. It also states in paragraph (d) that it is anything done in arbitration proceedings or proceedings for a dispute order under chapter 3. That is a pretty broad catalogue. As I understand it, it would cover anything resembling a decision made by the commission. Any decision it makes, award or order as defined, subject to this new regulation-making power, will be subject to any policy promulgated, adopted or made or brought into law by consequence of this legislation.

    The Government says, "Look, this is just about the wages policy. It is nothing to be worried about. There is nothing up our sleeve." But in fact, it is not. If it was, I dare say the Government would have drafted in the legislation the contents of the policy that it wants to enact. The Government would come to this House and the other place and say, "Yes, we want to enact our wages policy. Here it is. It is embodied in this bill. It is here. It is available for all to see. Every member of this House can see it, can read it, can consider it, can consult with industrial parties, and can make up their own minds about whether or not it is a good idea and whether it is good for the State." Mr Deputy-President, we cannot do that. Why can we not do that? It is because it is not here.

    There is no policy in this bill. There is the word "policy" and there is the big empty space where, if this bill is passed into law, the Government at some future point can say, "Here is the policy we meant. Actually, it is more than one policy." I am not suggesting that this is necessarily the Government's intention but legislation of this kind that is so broad could permit the making of more than one regulation or several regulations giving effect to different policies, all of which are conditions of employment. What are conditions of employment? It is a pretty straightforward English language term. It is defined in the dictionary of the Industrial Relations Act, which states:
        conditions of employment includes any provisions about an industrial matter.
    Industrial matter is defined in section 6 of the 1996 Act as:
        6 Definition of industrial matters

        (1) General definition

            In this Act, industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry.

    As far as I can see, "conditions of employment", defined in that circuitous way by reference to the dictionary and to the meaning of "industrial matters", covers any conceivable incident or benefits to be derived by workers from the employment relationship, not just wages and not just what should be the ambit of wage rises. It means any incident, any aspect whatsoever, of their entire employment relationship. Section 6 (2) of that Act provides some examples of industrial matters. They are examples only and they are not a limited set of categories. It is an open-ended set of categories. This subsection has been considered and adjudicated upon many times by the Industrial Relations Commission. It states in part:
        (a) the employment of persons in any industry (including the employment of minors, trainees, apprentices and other classes of employees),

        (b) the remuneration (including rates of pay, rates for piece-work and allowances) for employees in any industry—

    Paragraph (b) obviously deals with remuneration, so it would encompass the Government's wages policy, whatever it might be, whether now or at some future point. We do not know because we do not really know what it is. It goes on to state—

        (c) the conditions of employment in any industry (including hours of employment, qualifications of employees, manner of work and quantity of work to be done),

        (d) part-time or casual employment (including part-time work agreements),

        (e) the termination of employment of (or the refusal to employ) any person or class of persons in any industry,

        (f) discrimination in employment in any industry (including in remuneration or other conditions of employment) on a ground to which the Anti-Discrimination Act 1977 applies,

        (g) procedures for the resolution of industrial disputes,

        (h) the established customs in any industry,

        (i) the authorised remittance by employers of membership fees of industrial organisations of employees—


    perhaps paragraph (i) is not a realistic prospect under this Government—
        (j) the surveillance of employees in the workplace …

    Just by reading the list of limited categories, one can see that this bill, if it becomes law, will enable the Government—through its new regulation-making power giving effect to any policy that it declares in the regulation to be an aspect of government policy that the commission must implement in its decisions—to cover any conceivable aspect of the employment relationship. What does "public sector employee" mean in the context of this legislation? Proposed section 146C (8) states:
        public sector employee means a person who is employed in any capacity ...
    "In any capacity" is phraseology that is wide and without restriction. Having regard to the way in which that phrase has been interpreted in the line of cases arising from the clerks industry and the clerks award, for example, in which the catchphrase was "employed in any clerical capacity whatsoever", courts and tribunals have adopted a very broad and expansive definition of those words. The provision states:
        public sector employee means a person who is employed in any capacity in:
        (a) the Government Service, the Teaching Service, the NSW Police Force, the NSW Health Service, the service of Parliament or any other service of the Crown, or
    That is such a broad and all-encompassing definition that one would have to consider it for an extended period to determine a category of worker that is not covered by the definition. Having regard to the potentiality of this Chamber in the Committee stage for excising or carving out certain categories of worker potentially from the definition, if we take the example of the New South Wales Police Force, the Premier's press release talks about excluding uniformed police officers. As I indicated earlier in my contribution tonight, there are very many sworn officers who would readily answer the description of front-line police but who are not uniformed. But suppose the Government goes the whole hog and says, "No, every sworn officer will be excluded." It does not mean that everyone who works in the New South Wales Police Force will be excluded because the definition is "a person employed in any capacity".

    If we take the example of the New South Wales Police Force, there are very many civilian workers, clerical and other support staff, and while we might not describe them as front line in the sense that they are not on the beat and they are not actively engaged in dealing with crime, if we talk to local area commands or officers on the beat, taking those people out of the system would create a practical impossibility for police officers to do their work. If uniformed officers have to deal with all of the paperwork associated with their job, their job will not be fighting crime; it will be fighting paper. Even if one tries to carve out or exclude certain groups one may not capture everyone who contributes in a meaningful, real and direct way to the efforts made of that crucial service, the New South Wales Police Force. One may nevertheless critically undermine the activity of that agency in meeting its guiding task.

    When one looks at it for any period of time it is easy to see that what starts out as a deceptively simple, short proposal is actually redolent with complexity and unintended consequence that could severely impair the proper operation of important agencies of this State. Again, the same would apply in the teaching service and the NSW Health Service. Even assuming that it is desirable as a matter of principle and not mere convenience to exclude some categories or groups of worker, it also has the invidious vice of saying: "Well, you are front line, high profile and may put yourself at personal risk—as do those in Fire Brigades and Police Force—therefore you will have access to arbitration. You can have your wages and conditions of employment dealt with in the time-honoured, traditional way that has operated in this State since at least 1902." Modern arbitration of course stems from 1912, and prior to 1900 it was carried out in a less formalistic way through wages boards, non-compulsory conciliation and the like.

    Government should not legislate that people who are front line, high profile, special or with some extra feature will have access to arbitration and all existing industrial rights and entitlements. We in the Labor Party think all workers should have those rights. We think that all people should have the ability to bring a case through the processes of the Industrial Relations Commission and have the case heard and determined. It should not be done using a slide rule of a one-size-fits-all government policy not crafted to meet a specific situation, brought in over the top to cut off the fingers and edges of the claim.

    It should be heard fairly and impartially by a tribunal experienced and learned in this area of the law, imbued with the realism and practicality that is the hallmark of the New South Wales industrial system. We think all workers in the public sector of this State should have that right. It becomes an invidious value judgment to start singling out groups of workers, suggesting some are special, but unfortunately others are not quite so special; that they are not front line but sort of back room—whatever that might mean. It is invidious; it sets up tension within the public sector and denigrates the hard work, professionalism, integrity and commitment of tens if not hundreds of thousands of people who work for the public sector, and in the public interest, employed through the various agencies of this great State of ours.

    The journey that this Parliament has embarked on through this bill is unprecedented, the likes of which I have never seen in the State's history, in any other State of this country or federally. Never since industrial arbitration as we know it has been in existence—or even before—has any government sought in a very direct way to dictate what shall be the terms and conditions of employment outside collective bargaining. Whether the employer is the State, an emanation of the State or a private sector employer, often there is hard bargaining during negotiations. The workers say, "We think we should get X." The employer says, "No, we know the business better than you. You do not even deserve half of X." There is hard bargaining, tough words, fraught negotiations. This is where industrial arbitration actually emerged from; the strikes of the early 1890s.

    The effects of those strikes were so devastating not just for individuals, their families and their communities, but the whole fabric of society was so battered and bruised that industrial arbitration in a formalised way under the auspices of an enactment of Parliament seemed fair and appropriate. It was H. B. Higgins who described it as a new province for law and order replacing the law of the jungle. Honourable members will be aware that H. B. Higgins was not only a great industrial judge, he was the author of the Harvester decision in 1907 which set out his view of the living wage that a person needed in order to live in modest or frugal comfort. Of course we are talking about the particular social and historical context in which it arose. The idea of arbitration arose in response to that particular difficult historical social context. The law of the jungle, the hard collective bargaining, which is still embodied in American labour law and some aspects of current Federal law—

    The Hon. Greg Donnelly: Knock down, drag out.

    The Hon. ADAM SEARLE: Knock down, drag out. When industrial arbitration was first conceived, industrial courts and tribunals developed the practice of saying to workers and unions: "Well, if you want your case heard and dealt with here you cannot be engaged in industrial action. You have got to come here effectively with clean hands." The choice was to either submit to arbitration or to go through collective bargaining, the law of the jungle. Of course in our particular legislative framework that gave rise to providing for dispute orders. If a matter is before the Industrial Relations Commission, the commission has the power not just to recommend or direct the parties to cease industrial action, it has the coercive powers to require they do so through the more civilised way of resolving disputes—through the power of the Industrial Relations Commission, through conciliation, discussion, sometimes hard discussion.

    My colleague the Hon. Greg Donnelly is nodding not just sagely but knowingly, I dare say. In any case, never since systems of bargaining and arbitration have been in place has any government of any kind embarked on such a journey to set all that to one side. This Government intends, through the stroke of a pen, the finding and adoption of policy that may not exist as we sit here tonight but may only come to be created at some future point, to effectively excise existing rights to constrain the tribunal to mandate outcomes and to dictate the terms and conditions of employment for public sector employees.

    This plan was not taken to the people. Despite its shortness, its brevity and its apparent simplicity, given its possible pervasive effects and the complexities to which it would give rise, both practical and legal, Opposition members formed the view that the appropriate course of action is to just stop, slow down and consider this matter in a reasoned way through the auspices of a parliamentary committee.

    It is not unknown that legislation coming before this Chamber is referred to a committee for mature consideration. By mature consideration, I am not talking about months of delay and frustration, I am talking about stopping for a moment and thinking through the implications of what is being contemplated. Let us talk it through. Let us hear from people who know about this area. Let us hear from public sector employers and managers, and unions and their members. Let us hear from people who know this area of the law. Let us hear from people who have given some thought to this legislation. That did not happen. We are sitting on this very extended Thursday because of a determination on the part of the Government to sit as long as need be to have this legislation passed.

    The determination might be understood or more understandable if the Government had taken this matter to the people before the election and said, "Not only will we be charged with peace, order and good government of this State, not only will we have the general responsibility for the management of the budget and the public sector, but we consider this specific policy formulation and proposal is needed." In that situation the Government might be able to say it had a mandate for this proposal, and I could well understand the Government having a desire to have it implemented as soon as possible—although I do not believe it would cause me to agree with that policy. But we are not in that situation. This policy, whether it has come out of the top drawer or the bottom drawer or out of bureaucracy—who knows where it has come from, I do not—is so pervasive and so different in approach from any form of labour regulation we have had in this State, particularly by the State of its own employees.

    This is another dimension. It is also a public interest dimension. Employers have responsibilities to their employees. That goes without saying. Employers and employees have mutual responsibilities. The Government or its various agencies, whether created under an enactment of Parliament or not, is in no different position. But when the Government, embodying the public good and the public interest, is also the employer, particular additional responsibilities rest on government agencies. I have appeared for many government agencies over the years. In litigation it is often said that the Government must conduct itself slightly differently as a litigant, particularly when the litigation involves an individual citizen who may be an employee or some other form of contracted worker or a business partner in the commercial relationship.

    In that situation it is said, reasonably in my view, that while the Government is not required give up any of its own legal entitlements or rights as an entity or as a litigant, nevertheless, it has to exercise those rights perhaps more thoughtfully and carefully in relation to the other party. That is because it is a public authority, a government body, a government agency. Where there is the overlay, the additional important dimension, dare I say the intimacy of the employee-employer relationship, the responsibility on the government agency is all the more. That makes this proposal that we are considering tonight all the more remarkable, confusing and not understandable because it seeks at the stroke of a pen to set aside not just 100 years of history and goodwill but to embark upon relations with its own employees in a way that is harsh and unfair.

    The Hon. Shaoquett Moselmane: Gung ho.

    The Hon. ADAM SEARLE: Gung ho, capricious and arbitrary. The Government can conduct itself in a way that it determines by the stroke of a pen with no deliberation by any other person beforehand outside of Government. No matter what any of us might think is in this policy, none of us knows except the members of the Executive. We might have a good idea or a guess, but we do not know because it is not in the bill. The Government came to office saying that it was going to do things better than its predecessor. It said it was going to have more integrity and more transparency. Even assuming those claims are credible, this is not a good start. The Government is saying that this policy is so important that we have to give it legislative force and effect but the Government will not tell us what the policy is before we give it the power to make it.

    The job of Parliament is to scrutinise laws and the Executive, its actions and policies. With the best will in the world, the Executive is asking us to give it a blank cheque. The Executive wants us to agree that it can decide at any time on any policy affecting any condition of any public sector and employee. I have gone through the bill in some detail. Nowhere in the bill is there any process for tabling any policy before it gets turned into a regulation. The Government is not required to disclose the terms of the policy at any stage. It can put it in the regulation, but it does not have to. No onus is on the Government to tell anyone what is in it before it is made. It is not set on the table for consideration before it becomes legally activated.

    The Government has said that either House can disallow a regulation. However, when a regulation is made it has effect and it is the status quo. It is a big step for this House or any Chamber to nullify government policy, particularly one that has already been implemented, whether one thinks it is good, bad or indifferent. Many members in this Chamber or any other place might say that, if asked, they would not have approved of the policy but it is in force now and it has an inertia effect.

    It is a big step to ask a Chamber to nullify a policy, even when the Chamber was sympathetic to the view to undo a government policy that has been carried out. That is the unenviable situation we are in. We are being asked by the Executive to give it a blank cheque to make any policy it likes affecting any or every condition of employment of any public sector employee at any future point. None of us will have any input in the policy. The policy will not be published. It will not be publicly available. Anyone who is covered by the policy will not have the right to comment on it, make any submission to Government about it or even lobby a member of Parliament before it becomes law.

    The Hon. Dr Peter Phelps: That is an argument against all delegated legislation.

    The Hon. ADAM SEARLE: Not quite, and I will come to that point. Delegated legislation is usually referable to the legislation, its objects and parameters. I will come to whether or not a further perhaps unintended complexity with this proposal is whether any regulation made will be free from legal doubt. New section 146C provides the legal power to make a regulation of the kind I have been discussing but it does not create the regulation-making power itself. It relies on the existing regulation-making power in section 407 (1) of the Industrial Relations Act. I will refer briefly to that section, so it is clear. Section 407 (1) states:
        The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required
        or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
    Of course, it is not limited to any particular part of the Act; it is referrable to the whole Act. Presumably, it will be referable also to new section 146C. The Interpretation Amendment Act 1987 governs, among other things, how delegated legislation should be construed. Section 33 states:
        33 Regard to be had to purposes or objects of Acts and statutory rules

        In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

    The objects of the Industrial Relations Act state:
        3 Objects
        The objects of this Act are as follows:

        (a) to provide a framework for the conduct of industrial relations that is fair and just—
    that sounds familiar—

        (b) to promote efficiency and productivity in the economy of the State,

        (c) to promote participation in industrial relations by employees and employers at an enterprise or workplace level,

        (d) to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies,

        (e) to facilitate appropriate regulation of employment through awards ...

    Members can read the remainder. As I have discussed already, section 10 states that awards must set fair and reasonable conditions of employment: fair and reasonable in the mind of the commission based on the evidence placed before it. It is another complexity that is perhaps unintended; and perhaps not. Another uncertainty that would be created by this law if enacted is that if a regulation were made under new section 146C setting out a policy to constrain the commission, it is not clear whether that would be validly made when it is construed by reference to the objects. At the very least there would be a tension. Construing it by reference to the Act as a whole would tug the regulation in two different directions by what is fair and reasonable or by what is permitted by new section 146C.

    Again the situation would arise where the outcome of that struggle is not clear or certain. Regular Australian workers, our fellow citizens in important occupations for the general public, face the prospect that if their conditions are made by awards or orders that are constrained by a regulation and a policy enacted under proposed section 146C, the possibility is that that regulation or award may not be valid. The question might be asked: What is the complaint? The fact is that this might be the only form of right and entitlement those workers have to any remuneration or to any of the beneficial conditions of employment. If it is invalid, they have no strict legal entitlement to any of those conditions of employment that purport to be regulated by the instrument.

    The Hon. Greg Donnelly: That is significant for new employees.

    The Hon. ADAM SEARLE: It is significant for new employees, as the Hon. Greg Donnelly indicates, because at least ongoing employees with a number of years of employment under predecessor awards and agreements perhaps could argue that at least up until this date, whatever that may be, they have accrued rights and entitlements. The future rights and entitlements are put into some doubt and risk when this Act comes into force and effect. For new employees, that places potentially at some risk the entirety of whatever benefits they may derive from the employment relationship. If it is invalid, again the question might be asked: What is the complaint? It may not be a fair or reasonable condition of employment to which the employee might have an entitlement, but it may be the only entitlement they have.

    I may be entirely wrong, but I am sure that none of us in this place knows what would be the outcome of that particular controversy. If this Chamber makes the law in this form, it creates a situation where there is doubt and uncertainty about people's legal rights and entitlements for which they have worked in good faith not just for an employer but for a public employer—an emanation of this State. This Chamber will have not just condoned or connived that situation; it will have willingly made it. That is a very big step. It demonstrates that with a little bit of time and consideration, what seems to be a brief and breathtakingly simple and short piece of legislation—one might think simplicity itself—has all these potential complexities and unintended consequences. Or perhaps they were intended—who knows?

    What I do know is that there has been unseemly haste by the Government in trying to have this legislation enacted. We on this side of the House and others have said, "Slow down. What's the rush? You didn't take it to the people. There is no urgency." If the urgency is that with cases pending before the commission this piece of legislation has to be somehow rushed in to remove those cases, and if this bill is ultimately passed in some form, the Government always will have the power in the regulation-making function at any time before the commission actually delivers a decision to make the regulation that constrains the commission—if ultimately that is the will of this Parliament and of the Executive Government. While those cases may be programmed for April and August and in other places, they are big cases with lots of evidence and complex issues, and they may not be dealt with in the time allotted. That would not be the first time.

    I have heard of no rush or haste from the Executive in this place for the reason we must sit on this seemingly endless Thursday until it is done. If it were an election commitment, I could understand a new Government saying, "It's part of our 100-day contract, we want to tick it off." But it was not. What is the rush? I am looking forward to the Minister's speech in reply in which, hopefully, I will get an answer and we all will get an answer. The fact is that there are many pitfalls, traps and snares not for us but for the people who work for the State and for the public. I imagine all sides of the House will say the police do a fantastic job putting their lives on the line in the public interest. Fire employees do the same: all emergency services workers do. Even when people do not put themselves physically at risk, many people such as teachers and nurses do not just do a good, honest hard-day's work, but do so in such an invaluable capacity that without them our social fabric would be damaged and we would be much worse off. These people are not bureaucratic fat cats; they are our friends, our relatives, our neighbours.

    The other day I was waiting on my railway station and I saw three or four people waiting for the train talking about what was going on in their workplace. Strangely, one of the conversations got around to the recently announced government policy. One said to his mates, "You know, I never thought I was a bureaucrat. I just thought I was doing a job." Out of interest I asked him what he did. He said he was a nurse. That is just one story, but it illustrates the serious effects that may come to pass as a result of enacting this law, if we do. There seems to be no rush or driving imperative for us to do it today or even tomorrow. There are many good reasons I have tried to set out as to why we should pause and why, in my view, we should refer it to a committee so some more mature reflection can be made through the taking of public submissions, perhaps public evidence, and hear from people who would be affected and may know something about this area but who may not have a particular political perspective or axe to grind, as some people might say. The Parliament can then be more fully informed from those deliberations.

    It is not unusual for this House or indeed parliaments generally to inform themselves through the committee system. However, there seems to be an arrangement afoot to thwart that idea. One can only wonder why. It is not a controversy I am going to delve into as there are plenty of others to come. Leaving that aside, even if the Government were not minded to park it in a committee for a week or two or a month for the purposes that I have described, the House does not sit next week, except if we keep sitting on this endless Thursday. The House will comes back the week after. Why are members of the Government not even willing to take a week or 10 days to think about these issues in more depth to investigate them? What is the rush?

    Where is the pressure coming from? Why must it be enacted now? Is it just bravado? Is it just that the Government does not like being scrutinised by the upper House? Though it is very newly elected, does it believe it has an open-ended mandate, a mandate without detail but the details can be filled in later as with this regulation-making power? I have tried to develop the argument that this is a wholly remarkable, new and unprecedented approach to regulating industrial relations in this State, particularly with regard to regulating the relations between the Government and its own employees. The history of industrial regulation in this State shows just how breathtaking, how harsh, how arbitrary, how unfair and how unprecedented it is. Members do not have to take my word for that, of course, I have a couple of racy little reads they can engage in that will assist them. I will refer to two, and I am happy to identify them. I will not read passages from them but I may refer to them. The first is called Foundations of Arbitration: the Origins and Effects of State Compulsory Arbitration, 1890-1914.

    The Hon. Dr Peter Phelps: I think I saw that at the movies.

    The Hon. ADAM SEARLE: Yes. I think there is a comic book version also! It is a series of monographs and it came about, obviously, to explore the reasons that arbitration arose. The debate over arbitration, about whether to have the state intervene in the sanctity of contract between master and servant, between free contracting parties, as was the laissez-faire legal fiction of the late nineteenth century that employment relationships arose from the free, hardy and robust sacred contract between two independent souls coming together for mutual benefit. It explores the social and historical context from which arbitration arose, and the debates that arose even amongst unions about whether this was a good idea. Perhaps unremarkably, employers were always hostile to the idea of arbitration. It was getting in the way of their freedom to choose their own employees and what conditions they would give them. Dare I say, it is a bit like the contents of this bill. It is almost like the wheel is coming full circle. The employer, in the form of the State, wants to be able to choose the conditions that employees will have.

    The Hon. Greg Donnelly: Freedom of contract.

    The Hon. ADAM SEARLE: Not just in the freedom of contract sense that the Hon. Greg Donnelly indicates but in the most absolute eastern potentate sense of: This is not just my first offer, it is my only offer and if you don't like it you have nowhere else to go. The book explores that context in which the debate of arbitration arose and then it explores what arbitration is. Of course, it started in New Zealand, it came across the Tasman into New South Wales, and then it spread like wildfire all over the Australian mainland and was then, strangely, even included in the section 51 (xxxv) industrial relations power in the Australian Constitution. The book also explores what is meant by industrial arbitration, its norms and its mores. Why arbitration? Why not the law of the jungle? Again, it looks at particular social context, history and the somewhat devastating effects that the law of the jungle or free collective bargaining visited on workers, individuals and communities.

    The book deals with the effects of arbitration, not just in terms of outcomes and conditions; it also explores the claims of economists and economic historians who have focused on the role of arbitration and the Harvester judgement in particular as giving rise to particular levels of income and, as we have seen over time, eventually the development of redundancy payments. Superannuation entitlements originally arose in Australia, apart from a few in the professional classes. It originally arose as a development in the system of arbitration and the like. The book explores what were the social and other effects of arbitration on the ordinary everyday lives of Australian workers. It ends with an examination as to whether the various claims made in favour of arbitration can be sustained by reference to the evidence.

    The other little read is called Laying the Foundations of Industrial Justice. In a sense, it is a history of the present Industrial Relations Commission and its statutory predecessors from 1902 to 1998. The current commission is the practical and legal successor of the original Court of Arbitration founded in 1902 and of the Industrial Commission established in this State in 1926, and as such it is the longest continuing industrial court or tribunal in Australia. According to the foreword of the book, it is also the longest continuing industrial court or tribunal in the world. Professor Ron McCallum, formerly the Dean of the University of Sydney Law School, indicates that the only comparable body with anywhere near as long a continuing history is the United States of America National Labor Relations Board, which was established only in the mid 1930s. I mentioned the Harvester judgement but that was not the first of its kind. Its predecessor was in New South Wales.

    Charles Heydon, who was the President of the Arbitration Court between 1905 and1918, oversaw the creation of what we have today as the modern system of arbitration with conciliation commissioners, single judges handling day-to-day disputes and full benches determining overarching general legal principles or industrial principles. His background was in banking and commercial law, which gave him a somewhat unusual breadth of experience prior to his appointment. He had also been actively engaged in politics but not in the interests of labour and was seen as being quite an enemy of the labour movement. In July 1905 he delivered what was known as the sawmillers case. It was the first time that an arbitration tribunal had attempted to set or frame a general set of wage fixing principles in New South Wales and, in so doing, His Honour Justice Heydon adopted the concept of a living wage more than two years before H. B. Higgins did the same in the Harvester judgement in the Australian Commonwealth Court of Conciliation and Arbitration.

    Justice Heydon acknowledged that clearly the court had been established with the aim of settling disputes and preventing strikes, acknowledging the social mission, as it were, to civilise the law of the jungle. He noted with frustration that the Parliament had not provided any guidance as to the principles the court should adopt in the pursuit of those goals and so he had to develop them himself. That court of arbitration and its statutory successors have been doing the same ever since. From where did Justice Heydon draw his inspiration? He was a committed Catholic so he drew his inspiration from Leo XIII's Papal Encyclical Rerum Novarum issued in 1891. He propounded the view that the state should ensure a just level of wages sufficient to support the wage earner in reasonable and frugal comfort, although further demand should be settled by amicable conciliation.

    This view was reinforced by Heydon's social conservatism. He had managed to set the minimum wage significantly lower than that sought by the union. Nevertheless, for the first time the notion of the living wage emerged in Australian jurisprudence. What effect did this have on arbitration in New South Wales? The commission that we have today is essentially a conservative institution—it is not a radical one—and it has as its philosophical underpinning the maintenance of the rule of law in this State. It has always been quite clear to not only strive to achieve fair and reasonable outcomes but to do so within the constraints set by law.

    Honourable members will be aware that in recent years there have been all sorts of controversies about whether the commission has followed the law in a correct way. In an earlier debate in this place in recent times there was discussion of the High Court's decision in Kirk, which found that the commission had not been applying the occupational health and safety law in the way that the High Court Justices felt it ought to. What the debate failed to cast any light on was that in all the cases in the commission since Kirk, judges of the commission have punctiliously and appropriately followed the rulings laid down by the High Court in Kirk. That would not surprise anyone who knows anything about this subject, because for years deliberations of the Industrial Commission and its statutory predecessors have been governed by a privative clause, currently embodied in section 179 of the Industrial Relations Act. That clause and its statutory predecessors have tried to protect the commission from having its decision reviewed and invalidated by the mainstream courts, in particular the Court of Appeal.

    There are very many cases where disgruntled litigants have gone off to the Court of Appeal saying that the decision was invalid, the decision was made without jurisdiction. Some of those arguments have succeeded from time to time and the Court of Appeal has laid down the law to the commission. As has often been pointed out, there is not today, and historically has not been, any right of appeal from the commission or its processes to the mainstream courts, which the Court of Appeal and the High Court have complained about over many years. However, to my knowledge, having looked at this quite carefully in a professional setting for a number of years, whenever the Court of Appeal or the High Court has said what the law is, even if it is different or contrary to the approach taken previously by the commission and its judges, thereafter the commission, its judges, commissioners—whatever their titles have been—have followed the law laid down. I make the point that the commission is not some way-out, left-wing radical organisation out on the fringes.

    The Hon. Mick Veitch: Oh, get away! Really?

    The Hon. ADAM SEARLE: I kid you not. It's true. You heard it here. It is a very conservative institution, very concerned to do right according to law.

    The Hon. Duncan Gay: Like the shoppies.

    The Hon. ADAM SEARLE: Indeed—a most august organisation.

    The PRESIDENT: Order! The Hon. Duncan Gay will come to order.

    The Hon. ADAM SEARLE: The commission is essentially a conservative institution concerned with the rule of law, and it is in this framework that it conducts its role in arbitrations and judicial proceedings. All industrial systems in the country have, to a greater or lesser extent, a heritage similar to that. That is not to say that the commission is therefore entirely unique, but it does have its own particular features, and the Industrial Relations Act that currently applies permits the commission to grapple with the full range of industrial issues and gives it wide powers to resolve those matters without limitation—the only limitation being that they are industrial matters and matters pertaining directly to the employer-employee relationship. One asks, perhaps rhetorically: Why is that? It is because over many years governments of all persuasions and the community have trusted the expertise and integrity of the institution and those appointed to serve on it.

    Arbitration itself may have been controversial on and off over the years, and individual industrial disputes have certainly been controversial. The decisions of this commission and other like bodies have also been hotly contested by parties who do not like the outcome—often unions, often employers. But there has been a continuing faith, as it were, in the framework in the institution. Due to the common legal tradition of institutions such as the commission, they have inherited the great strength of common law systems—an independent judiciary or tribunal members devoted to the administration of justice. Courts and common law legal systems have proven to be remarkably robust and resilient over the years, even in the face of rapidly changing political, economic and social circumstances, essentially because the courts have remained scrupulously independent of political and economic influences so they may do justice to all manner of people coming before them, impartially, without fear or favour. That is because of the judicial oath.

    All members of the commission, whether they are judges, commissioners or non-judicial deputy presidents, have taken a judicial-like oath, which they take very seriously. They have also been able to adapt to changes over time. One has only to go back to the early to mid eighties: we had a very highly centralised system of wage fixing at both the national and State levels, which was criticised by many. The system itself evolved and it dealt with the structural inefficiencies. It developed a structural efficiency principle as part of its wage fixing principles at both national and State levels, which drove much-needed reform to award structures over the years, eventually leading to more enterprise-specific innovation. It did not become staid or ossified but was living: it was able to adapt to the changing circumstances and needs of the society in which it resided.

    These common traits, together with the unique characteristics particular to the tribunal, have enabled this institution to function effectively and to continue to adapt to the changing needs of the industrial parties. This did not just come out of thin air; it came out of the unique history. I refer briefly to New South Wales Industrial Laws, fourth edition, by C. P. Mills—

    The Hon. Dr Peter Phelps: C. P. How is he?

    The Hon. ADAM SEARLE: Not with us any longer.

    The Hon. Dr Peter Phelps: I didn't even know he was sick.

    The Hon. ADAM SEARLE: Enough of that levity. The view that was originally taken by this particular tribunal was that once an award had determined a wage rate for a classification, it was determined as being just and reasonable in the circumstances—and this was even before there was a section 10 or a predecessor of its kind. Section 10 is now embodied in earlier case law. It was basically fair and just, and economic arguments could not be brought to bear to undo that. Economic changes were not ordinarily regarded as providing a reason for reopening an award. Indeed, for a considerable time it was not regarded as a factor that would necessarily inform the making of a new award.

    This history of wage fixing was changed by a number of factors. First, the statute was amended and then there were a number of significant cases. The Crown Employees (Field Officers—Forestry Commission) Award case in 1963 gave some hint of change. In circumstances where the thing to be valued was the work of the employees and nothing more the commission now added various approaches to the task of doing that valuation. It might be done by examining work content or, when there was an earlier examination, economic conditions might have changed with the result that a re-evaluation becomes necessary. Economic circumstances became an important consideration for the tribunal. This led to the teachers case in 1964 in which the commission agreed that each award was to be made in light of prevailing economic conditions. Factors that the commission had previously said might be relevant in a proper case only now were admitted to be relevant in every case, even though they could not be measured with precision.

    A number of basic principles emerged from this case. First, the award should attempt to fix rates which were just and reasonable at the time of the commencement of the award and which would continue to be just and reasonable for the period for which the award is made, except for unforeseeable events; and, secondly, it is necessary for every award to be made in the economic circumstances of the time, whether or not particular economic circumstances are debated by the parties. The award maker must be acquainted with and bear in mind circumstances such as trends in the Australian standard of living and wage levels, the current level of wages and conditions of employment in a particular industry with which it is concerned, the current value of money, movements in price levels, and the latest wage decisions of the Federal tribunals. Even in 1964 there was a relationship between the State and Federal wage-fixing systems.

    Members of the tribunal would have these matters in mind when making awards. But the parties might also make submissions, and the principle of this case was that the work value reviews and economic reviews should go hand in hand. They should be carried out at the time of making a new award when the arbitrator would take account of the likely trend of economic affairs during the period for which the award was to be made. Earlier I referred to some provisions in the current Act which continue to embody these requirements for the tribunal, when making its decisions, to take account of the state of the economy in a meaningful and direct way. Again, I will not read the objects, but it is clear that the factors to which the commission must have regard are the state of the economy, section 146 (2), the objects of the Act and the likely effect of its decision. The commission is already required to do these things, and has been for many years.

    The Minister in his second reading speech referred to the recent State wage case. I will not read the decision, but I will provide a citation for those who are sufficiently interested to read it. The State Wage Case 2011 No. 2 [2011] NSW IRComm, delivered on 25 March 2011, is a decision of the President, Justice Boland, the Vice-President, Justice Walton, Deputy President Harrison, Deputy President Grayson and Commissioner Tabbaa. In the decision the commission summarised the submissions of the parties that it considered. Not only can one read the commission's decision, but as an appendix to its decision are the current wage-fixing principles. Again, I will not read out the details; I will simply sketch them to make the point that the commission does not set its face against arguments put to it about economic responsibility or matters of that nature.

    Of necessity, the commission must develop wage-fixing principles that are sufficiently broad to meet the needs of all the cases that come before it. The four primary aims of the principles are: to provide a framework under which wages and conditions in government and local government can be fair and reasonable; and to provide a framework that accommodates the interests of employers as well as employees. There are certain limited circumstances in which an award may be varied. There are test provisions for importing into awards test case standards or State wage adjustments. When we come to arbitrated cases where matters are in contest, it must go to a full hearing where there is evidence from each party. There are quite strict requirements that the Full Bench of the Industrial Relations Commission has placed on itself and on single members of the tribunal on hearing and determining award matters.

    Clause 8.2 deals with work value considerations, and states that changes in work by themselves may not lead to any change in wage rates. A proper, strict test for alteration of wage rates must be made out. When one looks through the work value change principle or any of the other principles, one can see that the commission has applied to itself and its processes quite stringent proof requirements by applicants who come before it seeking beneficial alterations. So it is not simply the case that unions bowl up and say, "Gimme" and the commission says, "How much?" Strict requirements are placed on applicants. Cases are brought based on evidence. That evidence is tested and evaluated in very robust proceedings that I have seen and been representative—

    The Hon. Greg Donnelly: In open court.

    The Hon. ADAM SEARLE: —in open court, and the commission, in a fair and impartial way, makes an award or order. It makes an award or order that is fair and reasonable, as it is mandated by section 10, and which reflects a fair and reasonable outcome—not based on what the commission or judge thinks is fair and reasonable, but what is fair and reasonable having regard to the tangible evidence brought in the proceeding. Indeed, the list of exclusions at clause 8.5 states:
        Claims that are based substantially on comparative wage justice, attraction and retention of community standards will not be countenanced except as provided in the Public Hospital Nurses (State) Award No. 3 case.
    That case sets out a stringent test to be met before one can get comparative wage justice based on those matters. There are principles that govern negotiations between parties, which again are quite exacting. There are principles governing enterprise agreements, how they may be made and the approach taken. There are principles relating to superannuation and there is the equal remuneration principle. The legislation specifically provides that the commission and all its proceedings must have regard to the considerations that arise in the Anti-Discrimination Act.

    Members will recall that equal remuneration is a matter in the objects of the Act to which the commission must have regard. Flowing from that, the commission developed the equal remuneration principle so that there was a principled approach to evaluating whether or not there had been historic gender undervaluation of any worker or category of worker, to provide a mechanism by which that could be assessed and then to provide a mechanism to establish what one was to do about it if it had been substantiated. This remarkable, indeed, unique feature arose under the 1996 Industrial Relations Act.

    It was not part of any predecessor legislation. Although there are similar provisions in the Federal legislation that have given rise to the Australian Services Union current pay equity case, in my respectful opinion, the Federal provisions are not as clear and beneficial as the New South Wales provisions because they have enabled the involvement of an expert tribunal that knows about the world of work and that has developed a crafted and specific principle that will inform its deliberations. It is true that it has been used only twice, but it has been used, at least inferentially, in other processes of award making and enterprise agreement making. Of course, one of the two cases involved library workers employed by the State Government. Again, it was a hotly contested case that the work of these people, mainly females, had been undervalued over an extended period and that that undervaluation related primarily to their gender.

    The legislation provided the mechanism by which that could be properly tested and assessed based on evidence, not by supposition or assertion, and the appropriate corrective orders were issued. In that case I think it gave rise, over a phasing-in period, to wage increases of the order of about 16 per cent. The principle has been used only one other time. I mentioned in my inaugural speech that it was used in relation to childcare workers employed in the private sector in New South Wales. I mention that specifically not only because it is a unique and important feature of the New South Wales industrial system but also because it is one of the provisions that will be extinguished by this bill. Why do I say that? The principle still exists and the commission will still have access to the rest of the Act. It may well survive, but I do not think so.

    What does proposed section 146C do? If the Government is to be believed, when it makes its wages policy and reflects that in a regulation, and if it declares in that regulation that it is an aspect of government policy going to conditions of employment of public sector employees, the commission in making an award or order must give effect to it. In effect, that would mean, even in a pay equity case where proper evidence is brought and tested, and it is accepted by the commission that there has been an historical and extended period in which a worker or group of workers have had their work undervalued—and where one properly controls for industrial or other economic factors—that there is at least some gap or undervaluation. There does not always have to be a comparator but often there is one in pay equity matters. One properly controls for qualifications, skills and required experience in comparable groups of workers where one is predominantly male and the other is predominantly female, and one can measure the undervaluation. That is not always required.

    The childcare workers case was done without a comparator. If there was a comparator, it was with another group of workers who also were predominantly female; that is, the teachers employed in the childcare industry who worked side by side with childcare workers who, although their qualifications were slightly different, often were not as skilled or as experienced. Where a proper case of gender-based undervaluation of wages is brought, and the evidence is adduced, tested and accepted, the question is then what corrective orders the commission can make in an award that are fair and reasonable as required by section 10. That might be the portal at which the corrective orders can be made. However, what if that same proceeding is caught in the vice-like grip of a regulation mandating that the commission must give effect to this aspect of government policy? The effect is that we will never again have a pay equity case in New South Wales in the public sector. Like any employer, the New South Wales Government, in its various agencies and emanations, does not set out to discriminate or to undervalue wages, whether on a gender or other basis.

    However, it does happen because of the historical context in which the valuations have arisen, and inertia and the natural behaviour in the employment context where employers need to attract and retain workers with skills and attributes and they need to pay a market component. It is very difficult to control that factor or group of factors and to isolate whether there has been a gender-based undervaluation. However, in circumstances where such a case is brought and demonstrated to be valid, there is now in my view almost no chance that a case like that, even if it succeeds on the evidence, can be given any relief by the independent umpire.

    If it is caught, for example, by an aspect of government policy embodied in a regulation that states that this group of public sector employees can get wages rises of only X, it really will be a straight-jacket or a one-size-fits-all situation. If we are to believe it, the Government says that the wages policy it is discussing is a 2.5 per cent increase in the value of employment, with anything above and beyond that to be offset entirely by employee-related savings that are fully bought and paid for, itemised and put in the award. Pay increases cannot flow through unless or until the savings have been met. That is my understanding of what the Government has said. Again, I look forward to hearing the Minister's reply to establish whether I am wrong about that.

    The Hon. Duncan Gay: Now?

    The Hon. ADAM SEARLE: No, not now. I am sorry to disappoint the Deputy Leader of the Government.

    The Hon. Duncan Gay: Are you sure we don't need to call Greg?

    The Hon. ADAM SEARLE: Not just yet. If the policy is made in those terms, or something very like them, it will be an across-the-board, straightforward restriction on the commission, because as we have seen proposed section 146C (3) provides that "an award or order of the commission that does not have effect to the extent it is inconsistent with the obligation of the commission under this section". If a regulation that states "all workers" or "all workers in this category of public sector employees" shall receive only a certain increase unless certain other conditions are met, even in the unusual circumstances or the most needy and deserving circumstance where there has been an historic, gender-based and therefore harsh and unfair discriminatory undervaluation of wages, the commission is limited in the relief it can grant workers to the same relief it can grant any other worker. It is limited by the ceiling and requirements of the regulations and the policy.

    Nowhere in any of the Government's announcements about this or around this have I heard any discussion that it will have this effect. Again, this bill—so short, so simple and so apparently straightforward—has yet another snare, pitfall and unfairness that was not disclosed if it was known about or has a further unintended consequence if we are to accept that the Government does not intend for this to happen. It is yet another reason that the process should be slowed so that more mature consideration can be given to the terms of the bill and to its effects. As the Deputy Leader of the Government in this place has identified, it is a much discussed four pages yet the more we discuss these four pages, the more things we find and they are not good things.

    The Hon. Helen Westwood: They do not want anyone to know about it.

    The Hon. ADAM SEARLE: Perhaps that is the reason for the haste, for the endless Thursday, so it can be passed before it can be properly scrutinised.

    The Hon. Duncan Gay: If it was passed in haste it would not be an endless Thursday.

    The Hon. ADAM SEARLE: If that is the case, the House could adjourn until the week after next—I am not saying it will; I am just saying it could—so that honourable members in this place can consult with their communities, their stakeholders, with those who will be directly affected by this pervasive and damaging piece of legislation if it is enacted. Whether we go through a formal committee process, whether we take our own soundings by having a public discussion about this—

    The Hon. Duncan Gay: We will be able to go through a formal committee process in the Committee of the Whole.

    The Hon. ADAM SEARLE: Yes, I understand that is likely to happen as it happens eventually before any law is made, but a Committee of the Whole proceeding does not permit the taking of evidence and submissions from trade unions, from workers who will be directly affected, from line managers in the public sector who will have to manage this.

    The Hon. Duncan Gay: You will be able to make your contribution.

    The Hon. ADAM SEARLE: I will make my contribution, as many other members of the House will also. I am sure we will have a robust discussion about the detail.

    The Hon. Duncan Gay: Whenever we get there.

    The Hon. ADAM SEARLE: Whenever we get there, in the fullness of time. But the point of my observation is the more we look at it the more we see there are nasty effects of this legislation that on the face of it seems simple and straightforward. It may be simple at one level but it is not straightforward because there are all these consequences that I have been underpicking and trying to develop here in what I hope is reasoned argument which has not been averted to by the Government in any of its utterances around this issue. It certainly was not revealed prior to 26 March. That is the reason for that somewhat lengthy discursion through the wage fixing principles.

    Having regard to the economic aspects of the wage fixing principles arising from the objects of the Act, consistent entirely with long historical practice of this tribunal to be most cognisant and most careful about the economic and financial consequences of its decisions, we come to what is the modern situation in the Industrial Relations Act. Outcomes are tempered by economic sensibilities and the public interest requirements as I have discussed and to be found in section 146 (2) of the Industrial Relations Act. Those requirements, such as the state of the economy, are listed but the overriding requirement is that established by section 10 and maybe this is the Government's beef—namely, that awards set fair and reasonable conditions. This approach was described by the full bench in the Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award in this way:
        In Re Health and Community Employees Psychologists(State) Award (2001) 109 IR 458 the Commission held [at paragraph 52]:

        "In other words, it seems to us, in discharging our statutory duty to make an award setting fair and reasonable conditions of employment the cost implications, whilst most important, are to be taken into account as one factor, but not decisively so in itself, which may cause the refusal of a claim. We think that may appropriately be accommodated in a case, and the present is but an instance, by tempering the final outcome so as to result, as paragraph (e) in section 3—Objects of the Industrial Relations Act suggests, in facilitating "appropriate regulation of employment through awards". ...

        We note that these statements of principle were adopted in Health Employees Pharmacists (State) Award, and we also adopt them in this matter. The economic and financial position of the State and the effects of our decision on the New South Wales economy have played a significant role in our decision, but not a determinative one. It is our statutory duty to fix fair and reasonable rates of pay and conditions. In a matter, such as this one, where a compelling basis for increases in rates of pay has been demonstrated—

    not asserted, not plucked out of thin air, demonstrated by evidence, adduced and tested, usually in the form of cross-examination, often, if you have ever seen a courtroom or have been the subject of it yourself, a most searching and robust experience—
        then the Commission must give recognition to that conclusion even though it may temper the final result in recognition of economic considerations. The terms of section 146 of the Act require no more than this, particularly in the light of the paramount requirements of section 10 of the Act. It is those duties that we will discharge in this matter. We shall exercise those duties without fear or favour and in order to do justice between the parties in the light of the evidence and submissions in the proceedings.

    I hope that makes the point that the commission is most mindful of the financial and economic impacts of its decisions but those factors are a consideration, they are not the only consideration. They are not a veto. It is not a trump card that will knock out every other consideration. That is appropriate. Why? The State is an employer as well as the State. Obviously as the State there are broad responsibilities, economic and otherwise, but as an individual employer in its various emanations and forms it also has interests but this bill before the House if enacted puts it in an unusual and advantageous position. The employer can decide what the rules of the game will be. The employer can limit its own liability, if you like.

    We are talking about the employment context. Let us take another context. Let us think about how the business community would react if the State Government Executive was proposing a law to put itself in a similar position as it will be as employer in this framework in connection with all its commercial relationships with other bodies with which it contracts. Can you imagine how a company, a private sector company or group of companies, individual, collective or otherwise, would feel if the State Government said—

    The Hon. Dr Peter Phelps: It is not analogous at all.

    The Hon. ADAM SEARLE: I would prefer it if I was not interrupted. The New South Wales Government is the biggest purchaser by volume and price of construction services, not only in Australia but, I think, in the Southern Hemisphere. In that way of behaving, there are very many high-volume, high-cost transactions with companies buying various services. Sometimes commercial relationships sour for all sorts of reasons and parties have legal rights to recourse to the courts. Sometimes the State Government, or one of its bodies, is the litigant, and sometimes it is the defendant. I ask members to imagine how people would react—citizens, businesses, either individually or collectively—if a law were being proposed whereby the State, in all its manifestations, could be sued by one of these commercial parties with which it had a commercial relationship.

    The State Government could, by regulation, issue a direction constraining the tribunal that would hear and determine these matters in a way that effectively limited the State's liability, in a way that was not contemplated by their contract. There would be shock; there would be outrage. People would not want to do business with the State Government, because the State Government could simply make up the rules along the way to suit itself as a commercial party. The State, in the form of the Executive Government, could advantage the State in its alter ego as a business partner. That is exactly what is proposed here in the employment context. The situation is very much apposite. It is not just analogous; it is an exact parallel situation.

    Looking at the evolution of industrial arbitration in this State, obviously there was for many years an acceptance by all political parties of the basic ingredients of the framework. However, the last Coalition Government in this State also experimented with radical industrial relations law reform. It did so on the basis of work by noted academic Professor John Niland. It obviously seems to be a thing with new Coalition governments: they seem to have a yearning for experimentation and industrial relations. To digress for a moment, I note that the Greiner-Fahey Government was the first Coalition State Government to move away from the traditional models of arbitration that had been used not only in New South Wales but throughout Australia in more or less the same way. Then, one by one, as Coalition governments replaced Labor governments in the various States, they all had their go at reforming in similar ways.

    Then the wheel turned in New South Wales with the election of the Carr Government and the creation of the 1996 Industrial Relations Act, which then in turn was borrowed from and implemented first in Queensland, then in Tasmania, Western Australia and other States throughout Australia. Then the wheel turned again with the creation of the Workplace Relations Act by the Federal Howard Government. Then the Act was adopted in the different jurisdictions, with various modifications around the States. We can see that for a long time industrial relations frameworks were, in essence, bipartisan, and then they have become a source of political controversy in a partisan sense. It seems that every time there is a change of government efforts are made—

    The Hon. Dr Peter Phelps: Not in Victoria.

    The Hon. ADAM SEARLE: There is a particular circumstance in Victoria. It seems that every time there is a change of government efforts are made to change the industrial regulatory framework in line with the particular political views of that government. Again, the Coalition Government—

    The Hon. Dr Peter Phelps: Bracks didn't bring it back, did he? Bracks didn't unrefer the powers.

    The Hon. ADAM SEARLE: That is not a matter within the ambit of this bill. What we have here is a situation where the Greiner-Fahey Government decided to move decisively away from the cooperative model that had been in place, influenced by what was quaintly termed the new Right at the time. HR Nicholls Society and the Greiner Government commissioned Professor Niland, the professor at the University of New South Wales who had long advocated a move away from centralised compulsory arbitration—

    The Hon. Duncan Gay: I am disappointed that I have never been invited to an HR Nicholls Society meeting.

    The Hon. ADAM SEARLE: I have not either. It is unaccountable, isn't it?

    The Hon. Duncan Gay: I am not surprised that you have not been invited.

    The Hon. Trevor Khan: I am not surprised that you have not been invited actually, Duncan.

    The Hon. ADAM SEARLE: The Deputy Leader of the Government in this place is from The Nationals, not the Liberal Party. There are many important historical, social and political differences. But I digress. Professor Niland was commissioned to review industrial relations in New South Wales, and in February 1989 he produced to the Government a tome transforming industrial relations in New South Wales. The major theme was the advocacy of regulated decentralised industrial relations based on enterprise bargaining. Niland strongly advocated a distinction between what he called interests and rights disputes. The former concerns future conditions to be incorporated in agreements, while the latter involves interpretations or applications of contractual terms.

    In November 1989 the Government responded to the first Niland report with its own white paper, which adopted only some of Niland's reforms. Major proposals included the establishment of an Industrial Commission and the separation out of an Industrial Court into two different bodies, the introduction of a facility for enterprise bargaining with single employers, and so on. The Coalition tried on several occasions to implement these recommendations during 1989 and 1990, but did not control the Legislative Council. Eventually the Coalition decided it would try to pass its reform package in bite-size pieces which were smaller and more acceptable. The industrial arbitration enterprise agreements law, commenced in 1991, allowed the Industrial Commission to certify enterprise agreements after a public interest test had been satisfied. Unions or newly established works committees were the drivers in this new system.

    The second success was the industrial arbitration unfair dismissal amendment, which, for the first time, gave individuals rights to bring unfair dismissal applications. Previously, applications could only be brought by unions by way of notifying an industrial dispute. As one way of resolving that industrial dispute, the commission could make an order or award for reinstatement or re-employment. But this was the first time that individuals were to have that right. The amendment commenced operation in July 1991.

    After the 1991 election, in August of that year, the Government reintroduced its reforms into Parliament as the Industrial Relations Bill. A hotly contested debate took place in this place over an extended period—which makes this very extended Thursday seem only a few hours old. That is how we ended up with the 1991 Act. The 1991 Act was very prescriptive and rigid. It sought to dictate to not only employees but also employers. In a sense, this rigidity and dictating to the industrial parties what they shall and shall not do was a future echo down the corridor of time of WorkChoices. WorkChoices was very prescriptive. The Government was telling workers and employers what they could not have, saying it was not good for them. The Government knew better. I will not burden this place unduly with a description of the system created by the 1991 Act.

    The Hon. Michael Gallacher: Please burden us.

    The Hon. ADAM SEARLE: Okay, you have persuaded me. I refer members to an article by J. W. Shaw titled "Transforming Industrial Arbitration in New South Wales", published in 1990 in the Australian Quarterly, that noted revolutionary left-wing magazine. That monograph—that is probably the best way to describe it—indicated that the 1991 Act deemphasised the role of statutory conciliation and arbitration, to enhance the role of bargaining but to also intervene in the industrial relations process to elevate bargaining at the enterprise level. This was part of the transformation of industrial relations.

    It created a sort of lower centre of gravity. The emphasis was also on individual rights. That seems to be something the Coalition has moved away from in the bill before the House, because the individual rights for people to have their conditions of employment regulated by a fair and impartial expert tribunal are curtailed. It is not just my proposition; it is, in fact, the Government's stated policy in bringing forward this bill. It does not like the way the commission does business, and the commission needs to be curtailed and limited in how it does that business.

    Lest it be said that I am making it up, heaven forbid, the Minister's second reading speech makes it quite clear. As I said earlier, the Minister indicated that the commission exercises a broad-range discretion in wage fixing. That environment was conducive to the Government's wages policy being disregarded or that other circumstances were more significant. I accept that is the case; it is not the only consideration for the tribunal. The Government stated through the Minister's second reading speech that any order or award inconsistent with the declared wages policy would be of no effect. I pause there. It is not the wages policy, it is any policy. It may be a wages policy, at least initially, but there may be a number of other policies that we do not yet know about. The Minister said in this place:
        The commission will be left in no doubt about the matters to which it must give effect when it makes or varies awards or orders relevant to public sector employment.

    The Minister also said:
        In accordance with the declared wages policy, any increase in excess of 2.5 per cent will only be awarded where employee-related savings sufficient to fund such an increase have been both identified and implemented.

    The Hon. Shaoquett Moselmane: Point of order: There is too much audible conversation.

    The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! Government members will lower their voices so the member with the call can be heard.

    The Hon. ADAM SEARLE: An increase in excess of 2.5 per cent will be awarded only where employee-related savings sufficient to fund such an increase have been both identified and implemented. This is quite revolutionary. Usually when you make an award or agreement there is bargaining and an award or agreement is made by consent or, in the case of an award, if it is arbitrated. The usual structure is that whatever the outcome, in the case of pay increases they will be phased in over the life of the award. Once the award is made and published it is like a self-executing order. The parties do not have to keep scurrying back to the commission for constant supervision. It is to be presumed that whatever elements were in the deal, if it was a deal, or in the award if it was arbitrated, that is what will be carried into effect over the life of the award or agreement.

    It now seems, having regard to the Minister's announcement in the second reading speech, and also in the Premier's press release that announced the policy—I will come to that shortly—that the approach in this new regulatory framework will be quite different. Increases in pay, whatever they are and in whatever circumstances they will be allowed, will only be allowed—and presumably given effect to—to the extent that the savings have not just been identified but have been delivered. In the Minister's second reading speech he said:
        Details of the savings measures used to fund increases in excess of 2.5 per cent are to be detailed in the award or agreement where that is appropriate.

    We do not know whether that is going to happen in every case, but in many cases it may. Let us take a walk through this process.

    The Hon. Matthew Mason-Cox: Let's run.

    The Hon. ADAM SEARLE: No, we will just take a stroll. There is bargaining and then there is an award or agreement by consent, or even an arbitration. Let us take a nominal figure, 5 per cent over the life of the award. If it is an agreement, when the agreement is made currently there is certainty. Workers know that whether the agreement is 1 per cent, 2.5 per cent, 3 per cent, 5 per cent or some other figure, if that is the figure in the award or agreement, however it is made—agreement or arbitration—that is what will be delivered over the life of the instrument. It is important for working people to have certainty. People have to go shopping, they have to provide for their families, clothe and feed their children, get a mortgage, pay their mortgage, get money to buy a car, and engage in all the usual daily incidents of modern life. They cannot do that if there is no certainty about their employment entitlements going forward.

    The Hon. Michael Gallacher: Why wouldn't there be?

    The Hon. ADAM SEARLE: Why wouldn't there be certainty? Now we come to it. The Minister said in his second reading speech:
        ... any increase in excess of 2.5 per cent will only be awarded where employee-related savings sufficient to fund such an increase have been both identified and implemented.

    The Hon. Dr Peter Phelps: That is in every Federal enterprise agreement.

    The Hon. ADAM SEARLE: No, let us just walk through this. Let us say the agreement is for 5 per cent over two years.

    The Hon. Dr Peter Phelps: Two point five per cent and 2.5 per cent.

    The Hon. ADAM SEARLE: Yes.

    [Interruption]

    Madam Deputy-President, I am speaking at the moment. I know all interjections are disorderly at all times, so I will wait.

    The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! The Hon. Adam Searle has the call.

    The Hon. ADAM SEARLE: Let us suppose, as the interjector has indicated, that it is 2.5 per cent and 2.5 per cent. The 2.5 per cent that comes automatically is okay but let us suppose that the second 2.5 per cent is not fully achieved. Let us suppose it is only 1 per cent. Does the 2.5 per cent increase in the award flow through on the specified time every six months or so, or whatever the tranches are to flow through, or are the parties in this new regulatory framework meant to go down to the commission every six months and say, "This is what we agreed to. This is the quantum that is meant to flow, but your Honour we have only achieved half or three-quarters."? Does that mean the totality flows through because it is in the award or does it mean you only get what is actually delivered?

    I will pause to consider this: When employers and employees do a deal like this there is a part they both can play in delivering productivity and efficiency gains. I acknowledge that. But there is only so much the employees can do. They are also reliant on management to carry out its role to deliver. What happens in this new regulatory framework if, through no-one's moral fault, the savings are not achieved within the time frame because of, say, management failure? Let us say the 2.5 per cent is not achieved, only 1 per cent. What flows through—the amount in the award or only what has been achieved? When you look at the Minister's second reading speech it gives the clear impression that the policy is the savings not only have to be identified and costed but have to be cashed up and delivered before they come to the employees. Now that must give every employee caught up in this regime some cause for concern because of the uncertainties.

    [The Deputy-President (The Hon. Jennifer Gardiner) left the chair at 11.10 p.m. The House resumed at 9.00 a.m. on Saturday 4 June 2011.]
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