Building and Construction Industry Security of Payment Amendment Bill 2010

About this Item
SpeakersShoebridge Mr David; Sharpe The Hon Penny; Pearce The Hon Greg
BusinessBill, Message, Third Reading, Amendment, In Committee, Motion, Report Adopted

Page: 28095

In Committee

Clauses 1 and 2 agreed to.

Mr DAVID SHOEBRIDGE [11.40 p.m.]: I move Greens amendment No. 1:

      No. 1 Page 3, schedule 1 [1] (proposed clause 26A). Insert after line 17:
          (3) A payment withholding request must include a statement in writing by the claimant in the form of a statutory declaration declaring that the claimant genuinely believes that the amount of money claimed is owed by the respondent to the claimant.
As I said during the substantive debate on this bill, there is concern that the bill as currently drafted will allow an unscrupulous claimant to put an inflated claim on the principal so as to provide an inappropriate form of commercial pressure on the respondent or potentially to choke off the source of income to the respondent and therefore potentially prejudice other subcontractors who may also have valid claims against the respondent. Following some discussion with the Government about that concern, I understand there is agreement to amend the bill to require the payment withholding request made by the claimant to include a statement in writing in the form of a statutory declaration that the claimant genuinely believed that the amount of money claimed is owed by the respondent to the claimant.

The importance of the amendment is that the statement is required to be in the form of a statutory declaration. If the statutory declaration is knowingly false the law provides significant criminal penalties against the person who made the false statutory declaration. That seems to be a prudent and wholly sensible additional check and balance in what is otherwise a good bill. If the amendment gets the support of the Committee, which I hope it will because it improves the legislation, the Greens will, with a great degree of comfort, support the balance of the bill.

The Hon. PENNY SHARPE (Parliamentary Secretary) [11.42 p.m.]: The Government does not oppose the Greens amendment, which ensures that the principals are not unduly required to withhold money arising from inflated claims and that cash flow is maintained in the industry. By providing these additional protections to subcontractors, it is important that an undue or unreasonable burden is not placed on principals and respondents. The rights of claimants who have a genuine belief that the amount of money claimed is owed by the respondent will not be affected. The Government is happy to support the amendment.

The Hon. GREG PEARCE [11.42 p.m.]: The amendment was provided only about 10 minutes ago. Just as the legislation was introduced by the Government in a manner that did not allow for proper scrutiny or consultation, and that did not provide an opportunity for us to ensure that there are no shortcomings or unintended consequences, the same applies to the amendment. Although the amendment does not appear to be offensive in itself, there are many ways the Greens could have approached the issue other than by acting in accordance with their newfound coalition with the Labor Party. The Greens and the Labor Party have formed a formal coalition federally. Now we hear that Mr David Shoebridge has been in discussion with the Government on this amendment but without presenting the amendments to members. Clearly, the Greens-Labor coalition is manifesting itself in a formal way in New South Wales.

As I said earlier, we simply do not know whether this legislation will do any good. We were a little surprised to hear that crossbench members were so well prepared in relation to the bill, as the public, the stakeholders and the Liberal-Nationals heard about this legislation only when it was introduced earlier today. We cannot support the legislation on that basis. As I said, while the amendment seems to be inoffensive, we cannot properly assess the amendment or get any commentary from stakeholders because of the way it has been done. If the Greens endorse this approach to legislation then let them live with the consequences.

Mr DAVID SHOEBRIDGE [11.44 p.m.]: I hate to poke a hole in the member's conspiracy theories in relation to the grand coalition he has conceived in his own mind. I also hate to inform him that the Greens have had this bill for exactly the same amount of time as the Coalition. However, rather than make fruitless contributions, as we have heard from the Coalition on a number of bills tonight, the Greens read the legislation. We took the time to read the bill. Having read the bill, we had some understanding of it and realised there was a potential problem so we put the amendment to improve what we thought was a problem with the bill. Rather than spend time coming up with conspiracy theories and coalitions that do not exist, I commend Coalition members to devote their time to reading the bill and considering ways that it could be improved, rather than simply whinging and complaining.

The Hon. Catherine Cusack: Did you discuss it with the Government?

Mr DAVID SHOEBRIDGE: Yes, we discussed the amendment with the Government. Earlier tonight we discussed the amendment with the Government, as is only sensible and rational when one wants to improve legislation. In much the same way, we attempted to discuss with Coalition members an amendment to improve the National Broadband Network Co-ordinator Bill, but their response was, "Well, even though it may improve or fix the bill we will not support it. You can all go down in a terrible fit of fury." They do not want to be seen to improve things; they simply want to grandstand.

The Hon. GREG PEARCE [11.46 p.m.]: I need to ask the member whether he is relying on his own legal advice. A long time ago I learned that one who takes his own legal advice has a fool for a client.

Mr DAVID SHOEBRIDGE [11.47 p.m.]: I am sure that when the honourable member relied on his own legal advice he learned at close quarters that he had a fool for a client.

Question—That Greens amendment No. 1 be agreed to—put and resolved in the affirmative.

Greens amendment No. 1 agreed to.

Schedule 1 as amended agreed to.

Title agreed to.

Bill reported from Committee with an amendment.

Adoption of Report

Motion by the Hon. Penny Sharpe agreed to:
      That the report be adopted.

Report adopted.

Third Reading

Motion by the Hon. Penny Sharpe agreed to:
      That this bill be now read a third time.

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