State Emergency and Rescue Management Amendment (Botany Emergency Works) Bill 2008



About this Item
SpeakersKelly The Hon Tony; President; Gay The Hon Duncan; Brown The Hon Robert; Nile Reverend The Hon Fred; Khan The Hon Trevor
BusinessBill, Division, Message, 1R, 2R, 3R


STATE EMERGENCY AND RESCUE MANAGEMENT AMENDMENT (BOTANY EMERGENCY WORKS) BILL 2008
Page: 6795

Bill received from the Legislative Assembly, and read a first time and ordered to be printed on motion by the Hon. Tony Kelly, on behalf of the Hon. Ian Macdonald.

Motion by the Hon. Tony Kelly agreed to:

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

Second Reading

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, and Vice-President of the Executive Council) [5.02 p.m.]: I move:
      That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.
      On 6 March 2008 a break in the main waterline under Botany Road at Alexandria was detected.

      Around the same time subsidence was detected and a retaining wall on an adjacent construction site has moved and is unstable. A hotel next door to the construction site has been evacuated and Botany Road is closed.

      The retaining wall remains at risk of collapse with the potential to cause substantial damage to Botany Road and adjacent properties.

      The wall presents a risk to public safety.

      Botany Road is a major Sydney arterial thoroughfare. It has been closed for over a month causing considerable inconvenience to Sydney commuters.

      Action needs to be taken as quickly as possible to prevent further damage occurring to the road. Repairs need to commence so that the road can reopen.

      Advice from the Department of Commerce and WorkCover indicates that there is an unacceptable risk of collapse. The public has been excluded from the area.

      New South Wales Police has sought to use powers under the State Emergency and Rescue Management Act to require the owner of the construction site to undertake further work to prevent the retaining wall from causing further damage to Botany Road.

      Some work was undertaken by the owner of the site to stabilise the wall.

      However in view of the continuing risks at the site, New South Wales Police subsequently required the Department of Commerce to enter the premises to undertake stabilisation work to prevent further damage to the road and adjacent property.

      The owner of the construction site has commenced proceedings in the Supreme Court to prevent New South Wales Police, through the Department of Commerce, from entering the site and commencing the work which is required to prevent further damage.

      The property developer has effectively challenged the power of New South Wales Police, acting through the Department of Commerce, to undertake the necessary work.

      The property owner's application for an interim judgement was refused by the Supreme Court on Wednesday 9 April 2008.

      In handing down its decision, the Court noted that it was not satisfied that "the emergency" is over.

      The Court also recognised that the Government in acting in this matter is seeking to represent the people of Sydney. The Court said that:

      There is a real public interest in having Botany Road reopened and in enabling neighbouring businesses to resume operation. It seems to me an intolerable situation that Botany Road has been closed since 6 March and will remain closed into the foreseeable future until sufficient remedial work has been completed to enable it to be reopened.

      The Court also recognised that the immediate safety concerns, both to persons and property, needed to be addressed.

      Although the application for an interim or temporary injunction was refused by the Court—and the Department of Commerce has commenced work on the site—the Court is still to hear the full case.

      This will determine whether or not New South Wales Police, acting through the Department, has the legal authority to enter the site and authorise the necessary works to be carried out.

      The hearing of the full case commenced today and it is not known when the Court will give its final decision. The Court has been advised of the proposed legislation and the proceedings have been adjourned until Monday. The bill will be provided to the Court.
      If the proceedings continue, there is a risk that if the Court hands its decision down while Parliament is not sitting and concludes that there are insufficient powers under the current legislation to undertake the important work, then the current rectification work being undertaken by the Department of Commerce will need to cease.

      Given that Botany Road is a major arterial road and the significant risk of damage which currently exists, any further delay in progressing these works is unacceptable.

      Consideration has been given to using powers under other legislation to ensure that further damage to the road is prevented. I am advised that none of these options provides a complete solution which will ensure that all of the required works can be carried out.
      This bill provides the Department of Commerce with clear legislative authority, and a clear obligation, to undertake the required work on the construction site to prevent further damage to Botany Road and address immediate safety concerns.

      Specifically, the bill authorises and requires the Department of Commerce to carry out emergency works at the site and authorises the Department of Commerce and others to enter the site to carry out the works.

      In addition, the bill includes provisions to require the property owner and others to provide information to the Department to enable the emergency works to be carried out.

      The bill also provides that the Department can recover the costs of the rectification work from the property owner. These provisions are similar to recovery provisions in the current Act which already apply where the existing directions powers are used.
      The property owner is not prevented from claiming against any other person or company which might be responsible for the damage.
      The Government has delayed introducing this legislation as late as possible in the hope that the matter would be completely resolved by the Courts.
      In view of the impending three week recess of Parliament, however, the Government has no choice but to introduce this legislation to address the continuing uncertainty.

      This will ensure that the required works can continue during the Parliamentary recess.

      I note that this bill does not in anyway attempt to interfere with the Court proceedings which are already underway.

      The bill provides a site specific solution, which authorises and requires the Department of Commerce to undertake the required works. It does not amend the provisions under which New South Wales Police has issued directions.

      As a result, the court proceedings can continue. The Government is not trying to prevent the owner of the site pursuing its questioning of the limits of the existing powers in the Act in the Courts.

      The Government cannot, however, afford to risk the unnecessary prolonging of a situation where a major road in Sydney remains closed because of risks to public safety.

      The particular circumstances of this emergency have raised some novel issues. It is not clear that existing legislation is ideally suited to addressing complex circumstances involving important public property, a number of private properties and potential interests of third party insurers and financiers.

      The Government will therefore review relevant powers with a view to developing a more suitable model to address any similar situations that arise in the future.

      This review will proceed in consultation with business, including insurers and financiers, to ensure that proper regard is had to the interests of all affected parties.

      I commend the bill to the House.
The PRESIDENT: Order! I will give the call only to members who stand and seek my attention by calling out "Mr President".

The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [5.02 p.m.]: The Opposition supports the State Emergency and Rescue Management Amendment (Botany Emergency Works) Bill 2008 in the main. We support its aims and we understand that it is necessary. However, we are concerned about clause 13 of the bill, to which The Nationals intend to move an amendment in Committee. It states that the costs of the emergency works are to be borne by BBB Constructions Pty Limited. I have been informed that the damage to the retaining wall was caused by a burst water main in Botany Road, and BBB Constructions is adamant that the damaged pipe was not caused by its building work. Everyone in the State will agree that the State's water mains are rotten to the core. Water mains in many areas of the State are in bad condition.

The Opposition has been advised that the damaged water main was not caused by BBB Constructions' building work, and, further, that in the interim and at its own cost, it has stabilised the retaining wall and undertaken redesign works that were needed to restore the wall. In Committee the Opposition will seek to delete clause 13. The Opposition basically supports the bill because this matter has gone on for a long time. But we do not believe the Government should automatically find the company guilty because if it is found not guilty at a later stage it will need to get its money back. In this State one is innocent until proven guilty. The work needs to proceed, and it should proceed. That is why the Opposition is happy to support the bill that the Government has introduced today belatedly and at very short notice. It is an act of goodwill on our part to support the bill—with or without the President's advice to me.

However, we are concerned that the bill will set a precedent by indicating that the company is guilty. The Government has the full resources of its office and it will collect the money if it can establish, at the end of the day, that the company is at fault. I would back the Government against anyone; it can collect money if it needs to. I would not back a private citizen or a company—and I am not sure about the makeup of BBB Constructions Pty Limited—and its shareholders when it comes to collecting money from the Government, given that the House is about to pass retrospective legislation.

The Hon. Tony Kelly: You did last night.

The Hon. DUNCAN GAY: Come on, you are in happy land. No wonder the Hon. Tony Kelly's ability as a Minister is being questioned if he has to draw a long bow like that. The Minister is talking about local government; I am talking about retrospective legislation that affects a company and private citizens. The bill will allow the Department of Commerce to access a construction site adjacent to Botany Road to enable emergency works to take place on a retaining wall that is unstable and at risk of collapse. I note that the powers in the bill are specific to the incident in Botany Road, Alexandria, and to that extent the Opposition supports the bill. Such action is certainly in the public interest. Botany Road is a major road in Sydney's business district and there is potential for damage to it and adjoining properties should the retaining wall collapse—a temple is situated on its edge. I drive past the area quite often and I know some Parliament House staff who live in new units nearby.

The bill was introduced today despite the ongoing court proceedings between the construction company that owns the site and the Department of Commerce. The case is before the court today. The Government has advised that the bill will not affect current court proceedings. The bill is being pushed through the House today because of the risk that the court may hand down a decision denying the Department of Commerce access to the site during the three-week non-sitting period of this Parliament. That would allow the unsafe conditions at Botany Road to prevail without any resolution. The Opposition accepts the Government's argument in that regard, but, as I said earlier, we do not accept that costs need to be apportioned to the company in order to gain access to the site. Frankly, the bill could be debated and passed quite comfortably without that provision.

The bill does not delve into liability for the burst water main and the ensuing damage that has occurred. As I have stated since 6 March, finger-pointing and the issue of who is to blame—the Roads and Traffic Authority, Sydney Water or the construction company—is frankly secondary to getting on and fixing the problem. The road needs to be fixed so that businesses can start to operate as normal, and residents and commuters can get some relief from the chaos and delays that have been occurring since the water main burst more than five weeks ago. I am glad that action is now being taken. It is, however, a shame that it took so long for the Government to act. It should not have taken pressure from the New South Wales Opposition, the media and the local community for the Government—and particularly Minister Roozendaal—to take action to fix the arterial road.

I understand that this bill does not address issues of compensation for the local business owners and operators. I highlight our concern for those business operators in the area who have suffered as a result of road closures. The Iron Duke Hotel has been forced to close as a result of the incident. The owners and the employees of this hotel deserve to be adequately compensated for the losses that they have incurred as a result of the burst water main and ensuing road closures, as do the cafes and other businesses affected in that area. Other local businesses are claiming that their profits are down by up to 40 per cent due to the lack of commuters and street traffic. A local businessman, Mr Charlie Svinos, was quoted in The Herald-Sun on 7 April as estimating that his earnings are down by up to $300 a day. The Opposition would like to know what the Government is going to do to ensure that these businesses are compensated and do not continue to suffer losses due to circumstances beyond their control.

Also affected by the current road closures are other local roads in the area. With both lanes of Botany Road closed, traffic is being diverted through other streets, such as Mandible and Wyndham streets, and we question whether these roads are equipped to deal with the level of traffic and heavy vehicles, including trucks and buses, which are now constantly moving along them. We ask the Government to advise whether the City of Sydney will be compensated for the wear and tear that will no doubt occur after what could be months of heavy traffic usage on roads normally deemed to be local roads under the city plan.

We are also concerned by reports that residents wrote to the Roads and Traffic Authority as far back as December 2007 highlighting the potential danger of the subsidence problem on Botany Road. Botany Road is a very important city transport link, which runs near to capacity just about every daylight hour, and its closure potentially due to a failure by the Roads and Traffic Authority or Sydney Water to take proper notice of the road and the concerns of residents is unacceptable. Many people in the area have stated that prior action may have prevented this series of events from occurring. That is why we have a problem with the clause that we wish to have removed.

We believe it is wrong to put retrospective legislation in place for a business that has acted in good faith. If it is found that this business has done the wrong thing, the Government has an ability to collect in the long term. But small businesses are not able to fight the might of government. The Minister needs to explain why the Roads and Traffic Authority and the water board ignored these warnings and why nothing was done to fix the potentially dangerous subsidence problem at Waterloo. Despite the short notice and because it is such an important issue, the Opposition will support the bill—with the exception of clause 13, as I indicated earlier.

The Hon. ROBERT BROWN [5.14 p.m.]: I know the Botany Road site fairly well as I travelled to and from the area for about 17 years. The Shooters Party also shares the concerns of the Opposition in relation to clause 13: the cost of carrying out emergency works. I have brought my concerns to the Government, which pointed out to me that the definition of "the works" means only the works relating to the shoring up or re-anchoring of the retaining wall or other walls surrounding the site, grouting behind the walls if necessary and other stabilisation work on the site, not off site. Whilst that gives me some relief that the extent of the costs are limited to work to the retaining wall, we agree with the Opposition that if the company, BBB Constructions Pty Limited, is forced under the legislation to pay those costs, and if it is later discovered that someone else is at fault, there may be a great deal of trouble simply because of the size of potential litigants. The New South Wales Government has enormous resources; this contractor may not have.

It has been explained that this action is consistent with section 61 of the existing Act, but I still do not see how removing clause 13 will make the legislation fail. If the Government can point out how removing that clause will make the legislation fail, we will probably be convinced that it must remain. I think we all agree that this matter must be resolved in the current parliamentary session. We will only sit tonight for however long it takes to sort it out—I assume the lower House will do the same—and then the Parliament will not meet again until May. The situation cannot be allowed to continue. I accept the Government's assurances that it will not interfere with the current court case, but I would like the Minister to demonstrate through detailed argument how passing The Nationals amendment will destroy the bill.

Reverend the Hon. FRED NILE [5.16 p.m.]: The Christian Democratic Party supports the State Emergency and Rescue Management Amendment (Botany Emergency Works) Bill 2008. The bill will simply authorise the Department of Commerce to carry out emergency works on the construction site adjacent to Botany Road. As members know, the works have already been delayed for five weeks. There is much criticism about the road closure, and people are asking why it has taken so long to rectify problems relating to the burst water pipe and the retaining wall. It is possible that the retaining wall remains at risk of collapse, and this has the potential to cause even more substantial damage to Botany Road, which is currently closed.

We believe the bill must be passed urgently so that the Department of Commerce and others can get on with the job. It appears to me that the construction company, which some members support, has been obstructive. The owner of the construction site commenced proceedings in the Supreme Court to prevent the New South Wales police, through the Department of Commerce, from entering the site to enable the commencement of work that is required in order to prevent further damage. The attitude displayed by BBB Constructions Pty Limited has not been very congenial.

The Hon. Duncan Gay: They were told that they had to sign off and that they would have to pay before anyone could go on.

Reverend the Hon. FRED NILE: The company has been very uncooperative. If a main arterial road is being blocked the Department of Commerce should be allowed to resolve the problem without being obstructed by this company, which is what it appears to be doing. The Christian Democratic Party supports the bill.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, and Vice-President of the Executive Council) [5.20 p.m.], in reply: I thank all members for their contributions to debate on the State Emergency and Rescue Management Amendment (Botany Emergency Works) Bill 2008. As I indicated previously, the Supreme Court hearing the claim for an interim injunction concluded that the emergency is not over. Given that Botany Road is a major arterial road and given the significant risk of damage that currently exists, any further delay in progressing these works is unacceptable. The bill will give the Department of Commerce clear authority to enter the site and undertake the necessary stabilisation works. It will not affect the proceedings that are currently before the court. I commend the bill to the House.

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

Motion agreed to.

Bill read a second time.

In Committee

Clauses 1 to 4 agreed to.

The Hon DUNCAN GAY (Deputy Leader of the Opposition) [5.22 p.m.]: I move:

No. 1 Page 4, schedule 1 [2] (proposed clause 13). Omit all words on lines 26-37.

As I indicated earlier, this clause will enable the company involved to pay for any remedial work. I support the Government's legislation, which will enable the Department of Commerce to conduct this remedial work. The Opposition opposes this retrospective clause that will find the company guilty until it is proven innocent. On one side we have Goliath, in the form of the New South Wales Government, with all its resources, and on the other side we have David—BBB Constructions Pty Limited—a company with limited resources compared with the resources of the New South Wales Government. I have no idea of the size of that company but it could be a mid-range company. I do not know and have had nothing to do with the principals of the company. However, I believe a person is innocent until he or she is proven guilty. Sections of some government organisations are trying to make this company sign off and state that it is responsible for the costs of remedial work before blame has been properly apportioned. If this company is responsible I have no doubt that the Government will be able to recover the costs.

The Government has my blessing and my support if this company is negligent and has done the wrong thing. Court cases relating to this remedial work are pending, so we should not interfere by apportioning blame. I am reliably informed that on numerous occasions the Government tried to get the company to sign a deed to indicate that it is responsible for remediation costs. Today I received a document dated 10 April 2008 that relates to BBB Constructions, and which states:
      We act for BBB Constructions Pty Limited. Today our client is appearing in the Supreme Court to challenge the purported exercise of powers under the State Emergency Rescue and Management Act 1989 New South Wales (SERM Act) pursuant to which the New South Wales Police Force has excluded my client from its own building site and is proceeding to engage other contractors to effect restoration works to a large retaining wall that was damaged on 6 March 2008 consequent upon a burst water main in Botany Road adjacent to the site.

      Our client is adamant that the damaged pipe was not caused by its building work and had approached Sydney Water and other authorities to ask them to come forward and accept responsibility, without success.

      Our client was told to seek recourse from its insurers and to sort out liability later. The insurers have been assessing the claims but this inevitably takes time. Until restoration works are completed, a section of Botany Road has been closed.

      In the interim our client has at its own cost stabilised the retaining wall and undertaken the redesign works needed to proceed to restore the wall. This is no insignificant task. The cost to undertake the restoration works will cost several millions of dollars.

      Our client had been directed by the New South Wales Police Force to undertake the work allegedly pursuant to the SERM Act. Reserving its rights our client was proceeding to do so. The consequence of the delay and disruption to our client's building site caused by the burst water main should not be understated.
It appears as though this company is trying to do the right thing but it has taken a long time. I do not know who is to blame: the Government authorities or the building company. The Government introduced legislation to stop that impasse—legislation that the Opposition will support. However, Opposition members cannot support a provision that will give the Department of Commerce right of access to the building site and that apportions costs immediately to the company. We believe that matter should be decided appropriately at a later date. Blame should not be apportioned to the company at this stage.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, and Vice-President of the Executive Council) [5.28 p.m.]: Clause 13 allows the director general to recover costs from the owner of the site for undertaking emergency work. This provision is consistent with existing provisions in the Act that require property owners to pay for the costs of rendering the premises to be made safe with a New South Wales police order that the work should be done. I draw members' attention to existing section 61 of the Act. There are precedents for these provisions in other Acts.

Such provisions are underpinned by the principle that, in the first instance, the property owner has an obligation to ensure that premises are safe and do not pose a risk to others or to surrounding properties. Property owners should meet all the costs of removing the risks. This does not mean that a property owner cannot recover costs if someone else is to blame for an unsafe situation that arose on his or her property. It is for this reason that the bill includes an express provision that other provisions in the legislation do not affect any rights that the property owner might have to recover against other persons or entities. The Government does not support the amendment.

The Hon. TREVOR KHAN [5.29 p.m.]: In the light of comments made by Reverend the Hon. Fred Nile I will go further in dealing with the history of the matter. We have already heard that the New South Wales Police Force issued a direction, which was directed at BBB Constructions Pty Ltd, to undertake restoration work. It would seem, I am advised, that on 4 April, notwithstanding the direction that had been given to the company, the direction was revoked and the Department of Commerce was given a direction to undertake the restoration works.

I am told that subsequently BBB Constructions Pty Ltd was excluded from the building site and that other contractors were employed on the site. On a number of occasions BBB Constructions Pty Ltd sought to indicate to the New South Wales Police Force a preparedness to complete the restoration works, if occupancy of the site was returned to it, but apparently that offer was refused. I mention that in the light of the assertion made by Reverend the Hon. Fred Nile that there had been some type of obstreperous behaviour on the part of BBB Constructions Pty Ltd.

What we could have is an entirely innocent party that has done absolutely nothing wrong but, in essence, has been ejected from a site, upon which it is lawfully entitled to be present, in circumstances in which it is prepared to do all that it may have been required to do to bring the site up to scratch. One can appreciate that a company in such circumstances may feel somewhat aggrieved and seek to exercise its lawful rights in the Supreme Court, as BBB Constructions Pty Ltd has, to demonstrate that the New South Wales Police Force among others has acted ultra vires.

The bill comes before the Committee today as a matter of great urgency notwithstanding that proceedings are before the Supreme Court on this very day. Those proceedings were adjourned on the advice of legal representatives of the Government that all would be resolved by the passing of the legislation through the Houses of Parliament today. If that is the case, in a sense proceedings before a duly constituted court have been stymied by the sliding of legislation through both Houses.

One might think that not only might BBB Constructions Pty Ltd have some grounds for considering that it has been shafted in its offer to undertake restoration works but also that it has been shafted part way through proceedings before the Supreme Court. Focusing on the amendment, let me posit that if the cost of repairs amounts to several million dollars, inherent in new section 13 (1) is the proposition that the cost of the restoration works can be recovered by BBB Constructions Pty Ltd—the bill is specifically directed towards a particular legal entity, and that is BBB Constructions Pty Ltd—and may be recovered in a court of competent jurisdiction.

Clearly, that court would not be a Local Court at Tamworth or the Downing Centre and the like but, rather, the Supreme Court. A court of competent jurisdiction may not simply be a duly constituted court in New South Wales but the Federal Court, following the issuing of a winding-up notice against the company. If the Government seeks to proceed to recover the costs of emergency works by issuing a winding-up notice, against which there is likely to be no defence available to the company, the company will be in one of two situations: either it will have to find several million dollars to meet the winding-up notice that has been issued or it will suffer the indignity of being liquidated by the New South Wales Government.

That is a truly exceptional circumstance for a company to be in, but that is what clause 13 (1) entitles the Government to do. The company might be justifiably concerned about that outcome because in any action that BBB Constructions Pty Ltd may have against Sydney Water and others, it would not be a party to the proceedings brought by the Government of New South Wales. BBB Constructions Pty Ltd would be a third party. One must remember that in a construction case that seeks to recover money for a burst water main from Sydney Water, we are talking about years of litigation and perhaps hundreds and thousands of dollars in legal costs for each side. In the meantime the Department of Commerce and the State Government of New South Wales already will have received its several million dollars whereas BBB Constructions Pty Ltd will be forced to blunder its way through the courts system of New South Wales to recover the costs.

One might think that is a truly unjust and unreasonable result of this legislation being passed in its current form. One might also think that that is a fundamental inequity and certainly not an outcome that should be pushed through this Parliament at half past five on a Thursday afternoon because the Government is perhaps a little concerned that the current legislation that is being considered by the Supreme Court will not stand up to scrutiny. One might think that this legislation has been introduced because the Government is attempting to paper over the cracks after having blundered into a situation, that the Government may well have received advice that it has done the wrong thing up to this point, and that BBB Constructions Pty Ltd may have very solid grounds in an action before the Supreme Court.

If that is the motivation for the bill, one might think that BBB Constructions Pty Ltd has been entirely reasonable in its actions in bringing proceedings before the Supreme Court, entirely reasonable in seeking to undertake the restoration works, and entirely reasonable in seeking to regain access to its own site. I submit that it is entirely reasonable for this Committee to support the amendment.

The Hon. ROBERT BROWN [5.36 p.m.]: The argument is advancing to the realms of what may happen, what might happen, what could have happened and whether BBB Constructions Pty Ltd is a devil or a saint. My colleague Reverend the Hon. Fred Nile made the point that if BBB Constructions Pty Ltd has a good heart it would have done something before now. Based on my considerable experience in the construction industry, having been up against very large players including insurance companies and at the wrong end of litigation, I know that if BBB Constructions Pty Ltd had capitulated and admitted liability, in all probability its insurance company would have wiped coverage of the company on the spot. That is my understanding. I am not a lawyer. There are more lawyers in this place than there are fleas on a dog's back, but my experience tells me that that is what generally happens. I will ask the Minister a straight question and perhaps he will respond. If this amendment is passed, will the legislation still work? If the words are omitted and the legislation still works, the Shooters Party will be inclined to support the amendment because, generally speaking, I agree with what the Opposition has had to say about striking a balance in leverage that is being applied to this contractor.

Reverend the Hon. FRED NILE [5.38 p.m.]: New section 10 refers to emergency works and describes what they involve. It states in part "emergency works means the carrying out of the following works on the Botany site". Subsections (a), (b) and (c) relate to fixing the retaining wall. The retaining wall is the responsibility of BBB Constructions Pty Ltd, not the responsibility of the Government or Sydney Water. New section 10 focuses exclusively on work that has to be carried out, and that is work that should have been done by BBB Constructions Pty Ltd. BBB Constructions Pty Ltd should be responsible for the cost of repairing the retaining wall, but apparently the company is reluctant to do that. The state of disrepair of the retaining wall could continue indefinitely with the result that Botany Road would not be open and available to the people of New South Wales. The Government has a responsibility to fix up Botany Road. That is the Government's priority, and the passing of this legislation is the process by which the road may be restored to its function as a main arterial road in the roads network of the city of Sydney.

The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [5.40 p.m.]: With great respect, the Reverend the Hon. Fred Nile is dead wrong. We, and the company, I suspect, although it does not matter, support new section 10. That section will go through when this bill passes and it will have to be complied with. The bit that we are concerned about is the apportioning of liability up front. This is the bit the company does not want. As the Hon. Robert Brown said, signing the document up front saying, "I am liable for what has happened and now under this I am responsible for all costs" would not be acceptable to the insurance company that underwrites the company's building sites or buildings. If it has other sites the same insurance group is probably involved. The company does not just want to have a hole in the ground; it wants to put a building in the hole at some stage. If it accepts responsibility up front for something it does not believe is its responsibility how will that affect its insurance? This is an impasse. The situation needs to be redressed and to that extent we agree with the Government. This bill has come up at very short notice. We are supporting the Government, which is a huge leap of faith for an Opposition. My staff were briefed this morning: we had no more knowledge than this. It was only when we analysed the document before us and saw this section, and we were alerted to the fact that the bill was apportioning blame to the company up front, that we had a problem. That is why we have moved this amendment so that the construction work can go ahead. Parliament should not apportion blame in this way.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, and Vice-President of the Executive Council) [5.41 p.m.]: I am advised that, although the initial orders were made on the construction company, New South Wales Police made a judgement that insufficient progress was being made. The priority of the police is to ensure the safety of the public and the property. The court said in yesterday's judgement:

      It does seem to me, however, from the plaintiff's own correspondence, part of which I have set out above, that there are important stabilisation steps yet to be taken, such as the testing of rock anchors and the attachment of further anchors. I have not been satisfied by the plaintiff that "the emergency" is over.
It continues:
      I have to keep in mind that the defendants are an emanation of the executive government. Their interest in this matter is not a commercial one.
This is an important factor. The judgement states further:
      They represent the people of Sydney, and in particular the residents and business owners in the Botany area. There is a real public interest in having Botany Road reopened and in enabling neighbouring businesses such as the Iron Duke Hotel to resume operation. It seems to me to be an intolerable situation that Botany Road has been closed since 6 March and will remain closed into the foreseeable future until sufficient remedial work has been completed to enable it to be reopened.
On the point raised by the Hon. Robert Brown, certainly the bill is still effective. The problem is that those very people of Sydney that the court was talking about will not have the normal provisions in this bill to be able to pursue the owner, BBB Constructions Pty Ltd—the same provisions that are contained in section 61 of the current Act. Those citizens of Sydney, represented by the Government, will possibly lose millions of dollars.

The Hon. TREVOR KHAN [5.44 p.m.]: I raise two points. Firstly, what the Hon. Tony Kelly has said in quoting from part of what I take to be an interim judgement really raises no argument. Botany Road has to open again: work has to be undertaken. With the greatest of respect to him, he misses the point. Nobody on this side of the Chamber is suggesting other than that, so they are nice words but they are not on the point, one might say. The second point relates to his concern about the residents of the City of Sydney. We are not talking about the residents of the City of Sydney being out of pocket. The work is to be undertaken by the Department of Commerce. The Department of Commerce will incur the costs; the question is whether Sydney Water will end up paying the Department of Commerce because of its burst water main or whether, when litigation occurs, it will be BBB Constructions Pty Ltd that pays.

I suggest the Minister is off the point in talking about the residents of Sydney missing out. That is not the body that will incur the costs of undertaking the works. What will happen eventually, as happens every day in the Supreme Court, is that proceedings will be taken and somebody will be adjudged to be at fault. This legislation seeks to circumvent that. It shifts the onus onto BBB Constructions Pty Ltd even though it may simply have been in essence a bystander—that is, on an adjoining piece of land that suffers the indignity of a pipe breaking next door and flooding through. We are saying that the issues surrounding who bears the cost should be worked out at the same time. When the issue of who caused the problem arises it will allow the Department of Commerce to get its money back and, if it is appropriate that it come from BBB Constructions Pty Ltd or its insurer, if there is one, that will be the time to decide the matter. If it is Sydney Water then Sydney Water will stick its hand in its pocket. It is a simple proposition: Work it out at the same time but do not leave one body, one party, at a substantial disadvantage.

Question—That the amendment be agreed to—put.

The Committee divided.
Ayes, 21
Mr Ajaka
Mr Brown
Mr Cohen
Ms Cusack
Ms Ficarra
Miss Gardiner
Mr Gay
Ms Hale
Dr Kaye
Mr Khan
Mr Lynn
Mr Mason-Cox
Reverend Dr Moyes
Reverend Nile
Ms Parker
Mrs Pavey
Mr Pearce
Ms Rhiannon
Mr Smith


Tellers,
Mr Colless
Mr Harwin

Noes, 16
Mr Catanzariti
Mr Costa
Mr Della Bosca
Mr Kelly
Mr Macdonald
Mr Obeid
Mr Primrose
Ms Robertson
Mr Roozendaal
Ms Sharpe
Mr Tsang
Ms Voltz
Mr West
Ms Westwood

Tellers,
Mr Donnelly
Mr Veitch

Pairs


Mr ClarkeMs Fazio
Mr GallacherMr Hatzistergos
Question resolved in the affirmative.

Amendment agreed to.

Schedule 1 as amended agreed to.

Title agreed to.

Bill reported from Committee with amendment.

Adoption of Report

Motion by the Hon. Tony Kelly agreed to:

      That the report be adopted.

      Report adopted.

Third Reading

Motion by The Hon. Tony Kelly agreed to:

      That this bill be now read a third time.

      Bill read a third time and returned to the Legislative Assembly with a message requesting its concurrence in the amendment.