Full Day Hansard Transcript (Legislative Assembly, 7 June 2005, Corrected Copy)

Mr Speaker (The Hon. John Joseph Aquilina) took the chair at 2.15 p.m.

Mr Speaker offered the Prayer.

Assent to the following bills reported:

Dust Diseases Tribunal Amendment (Claims Resolution) Bill
Appropriation (Budget Variations) Bill
Coal Acquisition Amendment (Fair Compensation) Bill
Criminal Procedure Further Amendment (Evidence) Bill
Game and Feral Animal Control Amendment Bill
National Parks and Wildlife (Adjustment of Areas) Bill
Civil Procedure Bill
Noxious Weeds Amendment Bill

Mr BOB CARR: In the absence of the Minister for Gaming and Racing, and Minister for the Central Coast, I will be delighted to answer questions on his behalf.

The Clerk announced the receipt, pursuant to section 63C the Public Finance and Audit Act 1983, of the performance audit report of the Auditor-General entitled "Department of Community Services Helpline", dated June 2005.

The Clerk announced the receipt, pursuant to section 10 of the Legislation Review Act 1987, of the report entitled "Legislation Review Digest No. 7 of 2005", dated 6 June 2005.

The Clerk announced the receipt, pursuant to schedule 1 (4) of the Commission for Children and Young People Act 1998, of report No. 5/53 entitled "Review of the Child Death Review Team Report: Suicide and Risk-taking Deaths of Children and Young People'", dated June 2005.

Petition requesting that the Alstonville Bypass be completed by the end of 2006, received from Mr Donald Page.

Petition requesting the reintroduction of an indexed land tax threshold and the removal of the vendor duty, received from Mrs Shelley Hancock.
Petitions opposing the decision to increase poker machine tax, received from Mrs Judy Hopwood, Mr Malcolm Kerr, Mr Steven Pringle and Mr Andrew Tink.

Petition supporting a reduction in stamp duty, received from Mr Barry O'Farrell.

Petition requesting the rescission of land tax changes, received from Mr Andrew Stoner.

Petitions opposing the Occupational Health and Safety Amendment (Workplace Deaths) Bill, received from Mrs Judy Hopwood, Mr Steven Pringle and Mr Andrew Stoner.

Petition opposing the proposal for the Somersby Fields sandmining project, received from Ms Marie Andrews.

Petition opposing sandmining on the Kurnell Peninsula, received from Mr Barry Collier.

Petitions requesting funding for continuation of the clean-up of Lake Macquarie, received from Mr Jeff Hunter and Mr John Mills.

Petitions opposing the proposed anti-discrimination (religious tolerance) legislation, received from Mr John Brogden, Mr Paul Gibson, Mrs Shelley Hancock, Mr Malcolm Kerr, Mr Daryl Maguire Mr Paul Pearce, Mr Anthony Roberts, Mr Andrew Stoner, Mr Andrew Tink and, Mr John Turner.

Petition requesting amendment of the zoning policy to preclude fishing competitions, by both spear and line, in the Jervis Bay Marine Park, received from Mrs Shelley Hancock.

Petition requesting visible and unmarked permanent policing to enforce the Motor Traffic Act as applicable to heavy vehicles, received from Mr Andrew Stoner.

Petition requesting that the Chatswood Community Health Centre be renovated and retained, received from Ms Gladys Berejiklian.

Petition requesting that plans for the placement of an aeromedical rescue helicopter service based in Coffs Harbour be fast-tracked, received from Mr Andrew Fraser.

Petition opposing the downgrading of existing services at Yass District Hospital, received from Ms Katrina Hodgkinson.
Petition noting the decision of the Minister for Roads, gazetted in February 2003, to abandon the construction of any freeway or motorway in the F6 corridor, and requesting preservation of the corridor for open space, community use and public transport, received from Mr Barry Collier.

Petition requesting that the Minister for Roads change the Roads and Traffic Authority's priority for Federal AusLink funding for the Barton Highway, received from Ms Katrina Hodgkinson.

Petition requesting removal of the Oxford Street clearway and imposition of a 40 kilometres per hour speed limit in Oxford Street, received from Ms Clover Moore.

Petition requesting funding for implementation of the Old Northern and New Line roads strategic route development study, received from Mr Steven Pringle.

Petition requesting the building of cycleways in the Forster-Tuncurry area, received from Mr John Turner.

Petition opposing any reduction in rail services on the South Coast, received from Mrs Shelley Hancock.

Petition requesting financial incentives for bus operators to install seat belts on school buses, received from Mrs Shelley Hancock.

Petition opposing any reduction in rail services on the Southern Tablelands line, received from Ms Katrina Hodgkinson.

Petitions opposing the abolition of CountryLink rail services and their replacement with bus services in rural and regional New South Wales, received from Ms Katrina Hodgkinson and Mr Andrew Stoner.

Petitions requesting the retention of Newcastle rail services, received from Mr Jeff Hunter, Mr John Mills and Mr Milton Orkopoulos.

Petition requesting the provision of a light rail service between Sydney and Newcastle using the existing rail corridor, received from Mr Jeff Hunter.

Petition requesting that pets be allowed on public transport, received from Ms Clover Moore.
Petitions requesting the retention of the CountryLink rail service from Murwillumbah to Casino, received from Mr Neville Newell and Mr Donald Page.

Petition requesting support for the retention of Aeropelican air services in the Belmont area, received from Mr Milton Orkopoulos.

Petition requesting that the Macdonald River be provided with signage stating "4 or 8 knots, no skiing, no wash", received from Mr Steven Pringle.

Petition requesting public transport for the areas of Maraylya, Scheyville, Oakville and Cattai, received from Mr Steven Pringle.

Petition opposing the removal of airconditioned school buses from the mid North Coast, received from Mr Andrew Stoner.

Petition requesting community consultation in the planning, funding and building of appropriate public school infrastructure in the Milton-Ulladulla area and surrounding districts, received from Mrs Shelley Hancock.

Petition requesting re-establishment of Murrumbateman Public School, received from Ms Katrina Hodgkinson.

Petition requesting the installation of airconditioning in all classrooms and the library of Colo High School, received from Mr Steven Pringle.

Petition requesting that sex education courses focus on marriage, received from Mr Andrew Stoner.

Petition requesting the fast-tracking of plans to build a dam at Dunoon, received from Mr Thomas George.

Petition opposing the extraction of water from the Shoalhaven River to support Sydney's water supply, received from Mrs Shelley Hancock.

Petitions objecting to the criteria for country cancer patients to qualify for the Isolated Patients Travel and Accommodation Assistance Scheme, received from Ms Katrina Hodgkinson and Mr Andrew Stoner.

Petition opposing the fluoridation of the Hastings water supply, received from Mr Robert Oakeshott.
Petition opposing the addition of fluoride to the Kempsey and district water supply, received from Mr Andrew Stoner.

Petition requesting funding to enable the Kempsey Women's Refuge to provide a 24-hour service, received from Mr Andrew Stoner.

Petition opposing a 27 per cent rate increase proposed by Shoalhaven City Council, received from Mrs Shelley Hancock.

Petition requesting the withdrawal of changes to the rental structure of Crown land leases, particularly enclosed road permits, received from Ms Katrina Hodgkinson.

Petition requesting approval for the construction of a motorcycle track at Collector Bushrangers Reserve, received from Ms Katrina Hodgkinson.

Petition requesting a review of the water-access-only property policy, received from Mrs Judy Hopwood.

Petition opposing a 30 per cent rate increase proposed by Great Lakes Council, received from Mr John Turner.

Petition opposing the decision of Dairy Farmers to close the Bomaderry milk processing plant, received from Mrs Shelley Hancock.

Petition opposing any proposal to sell State Forests, received from Ms Katrina Hodgkinson.

Petition opposing cuts to frontline staff in the Yass offices of the Agriculture and Fisheries Division of the Department of Primary Industries, received from Ms Katrina Hodgkinson.

Mr JOHN BROGDEN: My question without notice is to the Premier. Given that in February this year he said that "a safer and more reliable rail system is one of the Government's highest priorities" and given Justice McInerney's statement that "the development of safe behaviour should be the principal objective of training", does the Premier have full confidence in the rail drivers training program?

Mr BOB CARR: Until I see evidence to the contrary, I have confidence in it.
Mr ALLAN SHEARAN: My question without notice is directed to the Premier. What is the Government's response to last week's Council of Australian Governments meeting and its discussion on health policy and related matters?

Mr BOB CARR: "We have a very good health system by world standards. There has been damage done to the public perception of this country's health system by the constant and often vitriolic political exchanges at both a Commonwealth and State level, and I think the reputation of the health system has needlessly suffered." They are the words of the Prime Minister, John Howard. He added, "I do not believe that the health system of Australia is in crisis." There is no doubt our health system is one of the best in the world, and in our May budget we confirmed an additional 800 beds for our system at a cost of $227 million. That builds on the 563 additional beds announced in last year's budget. Our system works well. It simply does not make sense to continually denigrate it, damaging public confidence and denting staff morale. While the system is good, we are willing to work with the Commonwealth to make it better.

I am pleased to advise that, arising from last Friday's Council of Australian Governments meeting, the Commonwealth, the States and the Territories agreed to establish a task force to work on health reform. We expect its report to be delivered by December. The task force will examine improving access for the elderly and helping public patients in hospital waiting for nursing home places. It simply does not make sense to have elderly patients waiting in $800-a-day acute care hospital beds for nursing home beds that cost the taxpayer, Commonwealth or State, $112 a day. The task force will also examine helping young people with disabilities who find themselves stranded in nursing homes with older people, improving the supply, flexibility and responsiveness of the health work force, increasing the focus of the health system on prevention and accelerating work on a national electronic health records system.

Since 2001 New South Wales has been pushing for the Commonwealth to adopt this reform agenda. We are delighted that the Prime Minister now agrees. We look forward to working with our State and Territory colleagues and the Commonwealth to deliver a blueprint for reform that will fundamentally change the way we deliver health care across Australia. I also agree with the Prime Minister when he said, "We do not believe there is a crisis in infrastructure." As the Prime Minister said, "State budgets have been brought down in which there has been very, very heavy investment in infrastructure." Not one "very", but "very, very heavy investment in infrastructure"! I wonder what budget he was talking about? Ours is the most generous budget because it gives to infrastructure in real terms and absolute terms.

Mr Andrew Stoner: Re-announcements.

Mr BOB CARR: No, the increase in the May budget on infrastructure spending was 15 per cent—a 15 per cent rise. Since 1995 we have spent more than $61 billion in real terms.

Mr Barry O'Farrell: Point of order: My point of order goes to relevance, and it goes to the 15 per cent figure.

Mr SPEAKER: Order! The Deputy Leader of the Opposition will resume his seat.

[Interruption]

Mr SPEAKER: Order! The Deputy Leader of the Opposition will resume his seat. A repetition of that behaviour will result in him being called to order.

Mr BOB CARR: All that the performance by the Deputy Leader of the Opposition is meant to do is impress his colleagues who sit behind him. He has challenged the figures, so he forces me into a position where I must elaborate. I have referred to the 15 per cent increase in infrastructure spending in this year's budget.

Mr Barry O'Farrell: Sixty-six and a half thousand people are waiting for surgery. They are real people.

Mr BOB CARR: The Deputy Leader of the Opposition is now asking about the last 10 years.

Mr SPEAKER: Order! I call the Deputy Leader of the Opposition to order.
Mr BOB CARR: The Deputy Leader of the Opposition is now asking—members opposite heard him—about the last 10 years. Spending on infrastructure in the past 10 years in real terms—

Mr Barry O'Farrell: More people are waiting—more and more are waiting.

Mr SPEAKER: Order! I call the Deputy Leader of the Opposition to order for the second time.

Mr BOB CARR: No, the Deputy Leader of the Opposition is quite wrong. In real terms spending on capital works was $61 billion in the past 10 years. The Leader of The Nationals interjects and says, "What about debt retirement?" Oh yes, I suppose we stand guilty of being too involved in debt retirement. In the past 10 years we have committed $12 billion to debt retirement but $61 billion to new capital works in real terms, which is an investment. We have another $35 billion earmarked over the next four years for our hospitals, schools, rail and roads.

Mr SPEAKER: Order! The Deputy Leader of the Opposition will stop calling out.

Mr BOB CARR: I am pleased to advise the Parliament that the Council of Australian Governments [COAG] agreed in principle to a simpler and more consistent national system of regulation for ports and export-related infrastructure. Further, COAG agreed to hasten long-term planning under AusLink, to extend AusLink planning and co-ordination to ports and shipping channels, to establish study groups to co-ordinate logistics chains of national importance and to establish one-stop shops in each jurisdiction for project facilitation and approvals. These are all good, sensible directions and actions. New South Wales is leading the way by ensuring that critical infrastructure is fast-tracked. That is why the Minister for Infrastructure and Planning will bring legislation to the House this week that facilitates amendments to the Environmental Planning and Assessment Act that I hope the Opposition will support.

Mr Carl Scully: The Prime Minister supports it.

Mr BOB CARR: The Prime Minister supports it, or tends to be supportive of the direction we are taking. Finally, COAG also discussed the issue of skills shortages, including the implementation of full recognition of skills qualifications across Australia, allowing an appropriate system for the recognition of overseas qualifications, shortening the duration of apprenticeships, ensuring maximum flexibility in training for employers of apprentices, and assessing the impact of skills shortages on particular industries and regions. I encourage members opposite to acquaint themselves with the Prime Minister's statements on New South Wales hospitals and infrastructure investment. I add, by the way, that it was a very co-operative COAG meeting. I urge the Opposition to look at the COAG communiqué. The Prime Minister flatly contradicted everything that the New South Wales Coalition has been saying to undermine public confidence in our hospitals and our level of infrastructure spending.

Mr SPEAKER: Order! The Deputy Leader of the Opposition will cease interjecting.

Mr BOB CARR: Members of the Opposition ought to hang their heads in shame. Would people not think that the Coalition would develop a co-operative relationship with its own Federal leader?

Mr JOHN BROGDEN: My question without notice is directed to the Premier.

Mr SPEAKER: Order! The honourable member for East Hills will come to order.

Mr JOHN BROGDEN: How can he assure the public that the rail network is safe when trainee rail drivers are provided with copies, on CD-ROM and in writing, of both the questions and the answers before they sit their qualifying examinations?

Mr BOB CARR: There goes the Leader of the Opposition again—attacking front-line public servants. The Opposition is laying off the nurses this week and the police, but now they are opening up on train drivers.

Mr John Brogden: Point of order: This is a question about rail drivers.
Mr SPEAKER: What is the point of order?

Mr John Brogden: It is about their having answers to the questions before the examinations.

Mr SPEAKER: Order! The Leader of the Opposition will resume his seat.

Mr BOB CARR: In all the discussion out of the Waterfall train disaster, there was a focus on the health of train drivers and there was a focus on safety technology, but there was no indictment of the level of training of our train drivers, which is rigorous, the best in Australia and up there with the best in the world. What the Opposition is trying to do is undermine confidence in a workforce whose skill level has never been questioned.

Mr SPEAKER: Order! I call the honourable member for Wollongong to order. There is too much audible conversation and interjection in the Chamber. Members have the right to ask questions of Ministers and the Premier; Ministers and the Premier have the right to be heard in silence.

Mr BOB CARR: No serious person has criticised the level of training and the skills and the competence of train drivers.

Mr SPEAKER: Order! The Leader of the Opposition will cease calling out.

Mr BOB CARR: We have just had, effectively, a royal commission into rail safety, and the training of drivers was not indicted.

Mr SPEAKER: Order! I call the Leader of the Opposition to order.

Mr BOB CARR: Apart from the argument for more safety training for guards and drivers, the quality of training has not been indicted. I conclude by saying again that when the Opposition is not attacking nurses or the police, it opens up on other hardworking public servants. I, and I believe the public, have full confidence in the skills, the expertise and the training of fine train drivers in New South Wales who, through the whole Waterfall inquiry, have not had their competence criticised or indicted.

Ms KRISTINA KENEALLY: My question without notice is addressed to the Minister for Police. What is the Government's response to community concerns about airport and port security and related matters?

Mr CARL SCULLY: There has been much discussion recently about airport security following Schapelle Corby's defence, following Operation Mocha, following a customs report. There has been much discussion about airport security, and what is the Federal Government's response to corrupt baggage handlers, to people who work at the airport and who are the known associates of criminals, to no-one having their bags checked when they go to work or when they come home? The Federal Government's response is: Open a NSW Police station.

In another instance at Port Botany at the weekend, what was the response of the Deputy Prime Minister, John Anderson, and the Leader of the New South Wales Opposition, John Brogden, to drugs being imported into our ports on container vessels? They said, "We need more Water Police at Sans Souci." Here we have customs officers that are more focused on raising revenue than on law enforcement, and who are not doing what they should to check a sufficient number of containers coming in to Port Botany.

One would imagine that because standards are so tough at a Federal level, one would not even think of putting a container on a truck. So here we have to have a fleet of Sydney Water Police vessels waiting under a container vessel for someone on the equivalent of a sixth storey to hurl a package down into the water, and Water Police to catch it in a net before it reaches the dinghy below. What a load of nonsense! I inform the House that 150,000 containers per year out of 3 million are checked by customs. Why would anyone bother hurling a bag of heroin from a ship to a boat below when they could leave it on the container for a crane to lift it off the ship and put it onto their truck, with almost a 95 percent degree of guarantee that they will get it to their corrupt warehouse?

[Interruption]
The honourable member for Lane Cove, known as Lord Nelson, chimes in. Obviously he is interested in policing matters. He put a question on notice to me that stated, "Dear Minister, please let me know what steps you will be taking to increase police at the Ryde Local Area Command." My answer was, "There is no Ryde Local Area Command." So I say to Lord Nelson: I would stay out of this if I were you.

Mr Richard Amery: This is no way to treat a war hero.

Mr SPEAKER: Order! I call the honourable member for Mount Druitt to order.

Mr CARL SCULLY: The Federal Government talks much about border protection and national security. Our airports and ports need that national security.

Mr SPEAKER: Order! I call the honourable member for Murrumbidgee to order.

Mr CARL SCULLY: Despite the Federal Government's best efforts and its alliance with the Opposition in intending to paint this most misleading picture that the New South Wales Government is responsible for the airport, in fact the airport is a Commonwealth place. Why do members think the airport was sold? At the first sign of pressure, when a camel head costume was stolen from a passenger's luggage and corrupt baggage handlers were exposed, the Commonwealth wanted airport security to be a New South Wales Government responsibility. The Commonwealth bolted into the fog and pointed back and said, "Ken Moroney, please come forward and fix the problem at the airport." When the airport was sold for $5.7 billion, the State Government did not get a cent, nor should it, because the State Government did not own the airport.

John Anderson approved that disgraceful development at the airport, and ignored all of our planning laws. Why did he do that? Because he could, because the airport is a Commonwealth place. New South Wales police officers cannot go to the airport to prevent drugs from coming into this country, although they do have a community policing role, there is no question about that. NSW Police regularly patrols the airport and reacts when necessary, and proactively deals with crime based on intelligence. At a recent meeting with Max Moore-Wilton he told me that he wants lots of cops at the airport, just to make him feel good. I told him that we would not put our cops there just so he could feel good, but we would put police at the airport when needed for the sorts of crimes that are occurring. By the way, we will not put more police at the airport than are at the Eastgardens Shopping Centre, no more than he could expect anywhere in that local area command.

There is a police station one kilometre from the airport, a few minutes away, which responds as needed and it regularly patrols the airport. Bag snatching, shoplifting, assaults, violence and malicious damage are matters that NSW Police will deal with. In 1997 the Federal Government asked the State police to put in a bid on a user-pays policy for the airport. We put up a commercial proposal to establish an airports patrol, an airports police command, with up to a couple of hundred cops. There would have been State police all over the place on a commercial basis. The Federal Government said no to that proposal, it wanted the cheap and nasty option. It did not want to deal with policing; it wanted to pay just a few dollars to deal with, probably, counterterrorism issues. That duty was given to the Australian Protective Service group, which became an arm of the Australian Federal Police.

John Anderson then said that that was ludicrous and ridiculous because the State Government could not charge for the presence of police. The Federal Government asked the State Government to put in a tender, which it rejected, and it got what it paid for. The Federal Government got a handful of Australian Protective Service people, and they are not highly trained police officers: it got what it paid for. No State police will be able to make sure that the Australian Security Intelligence Organisation does the proper checks; no State police will be able to make sure that people with serious criminal convictions are not employed. Ken Moroney cannot turn up at the airport and tell Geoff Dixon to sack people because they have criminal records. Ken Moroney and the NSW Police cannot do what should be done; that is, baggage handlers have their bags checked going to and coming from work on each shift so that we know what they are taking in and taking out. That can be done only at a Federal level.

John Anderson's response has been pretty ordinary. He has finally conceded that people with a serious criminal conviction should not be working in sensitive places around the airport. However, his pièce de résistance—

[Interruption]

My wife teaches and speaks French.
Mr Ian Slack-Smith: Point of order: Can the Minister give us subtitles please?

Mr SPEAKER: Order! The honourable member for Barwon will resume his seat.

Mr CARL SCULLY: In the face of all this corruption, criminality and lack of certainty about safety and security, there is an airport supremo. I thought, great, we are going to have an airport security authority, similar to the Homeland Security Agency in the United States of America. We are going to have a reasonable number of people employed to replace the private security guards who are employed on the most casual basis. They will be at the airport and will check the X-ray machines and set the standards for hiring and firing; they will go to Qantas and Sydney Airports Corporation Ltd and say, 'These are the criteria you must follow to hire and fire staff." They will have people at the staff entry and exit gates. But, no, that will not happen.

Mr SPEAKER: Order! The honourable member for Epping will come to order.

Mr CARL SCULLY: John Anderson is not going to employ staff or an authority, just one supremo. That person will be in a civvy suit, working out of the back of a Holden at the airport with a laptop and mobile phone, rushing to the X-ray machine, bolting down to Qantas to hire and fire, over to the carousel baggage counter, back to where people are arriving and departing. That is an absolute joke. Recently John Anderson became upset when I said, "Whenever John Anderson is confronted with a crisis he is on another planet." If John Anderson thinks that one person can somehow fix this problem he really is on another planet. Before concluding I will comment on Max Moore-Wilton. Max has been very mischievous on this matter.

I thought Max the Axe was a businessman, the chief executive of the airport. I did not think he was still the head of the Prime Minister's department. But I think he is intending to mislead and deceive the public into coming to the view that there is a joint State-Federal responsibility for dealing with international drug cartels, dealing with criminality and corruption at the baggage handling level. Sorry, Max, the New South Wales Government will continue to do what it can with community policing, but to suggest that the Government and its Police Force do not regard drug importation as very serious is not only wrong and outrageous but also offensive. Operation Mocha, a very successful operation, resulted in the arrest of many people. It was that operation that revealed the corrupt baggage handling at Sydney airport. Operation Mocha was conducted with the assistance of the Australian Federal Police, but primarily it was conducted by the State Crime Commission and up to 100 New South Wales police.

The Government will do what it can to find those involved in conspiracies, arrangements and intentions for the importation and sale of drugs. We will round them up and lock them up. But what we cannot do is send New South Wales police officers to the airport to deal with corrupt baggage handlers, people who should not have been hired in the first place. I say to John Anderson: for goodness sake, please make sure for once and for all time that when people go to work at the airport their bags are checked on the way in and again on their way out.

Mr ANDREW STONER: My question without notice is directed to the Treasurer. Given that the Treasurer's budget shows that Sydney Water failed to spend $97 million to improve water distribution and treatment systems over the past three years, during which time 180 billion litres of water have been wasted from leaking pipes, how can consumers believe the Treasurer's promise that $57 million will be spent on replacing water mains this year?

Dr ANDREW REFSHAUGE: This is a serious proposal by Sydney Water and I have absolute confidence that it will deliver on it.

Mr PAUL LYNCH: My question without notice is directed to the Premier. What is the Government's response to community concerns about the Coalition's plans to introduce mandatory sentencing in New South Wales?

Mr SPEAKER: Order! I call the honourable member for Murrumbidgee to order for the second time.

Mr BOB CARR: In the past two years no major category of crime has risen. New South Wales Bureau of Crime Statistics and Research April data found that crime in New South Wales had fallen in nine out of the sixteen categories and that it was stable in the other seven. The current approach to crime in New South Wales is working. However it seems that the Coalition, once again, is intent upon taking a policy of mandatory sentencing to the electorate, despite the manifest injustice that these schemes have produced in the United States of America and, for example, in the Northern Territory. The people of New South Wales have twice rejected mandatory sentencing—at the 1999 election and at the 2003 election.

Despite strong resistance from senior shadow Cabinet colleagues and from the Prime Minister, the Opposition resuscitated this policy. Members should cast their minds back to 2001 when our old friend the honourable member for Wakehurst was shadow Aboriginal Affairs Minister. He submitted a shadow Cabinet minute that opposed mandatory sentencing and the shadow Cabinet rudely rebuffed him, choosing instead to adopt mandatory sentencing. Mysteriously, that shadow Cabinet minute from the honourable member for Wakehurst found its way into the public domain. Its headline reads, "Brogden saddened by Coalition document leak." Who said that lightning did not strike twice in the one spot? I hate to do this but I have a big fat document on Opposition policy that has been leaked to us. The question that has to be asked is: Where did it come from? Did it come from that wily Central Coast lawyer, the honourable member for Gosford, parodied sometimes as a swamp fox but who in fact is a very savvy legal mind?

Mr Chris Hartcher: I place on record my appreciation for that, Bob.

Mr SPEAKER: Order! The honourable member for Gosford will resume his seat.

Mr BOB CARR: Thank you for that. Did it come from the Swamp Fox? Did the honourable member for Lane Cove get hold of it and, with all his experience with drumhead courts martial, feel that this was a bit of discipline sorely needed in society that ought to be shared with the rest of the world? At least that has to be admitted as a possibility. The honourable member for Lane Cove could be guilty. Did it come from that man who lives in the spirit of possibility, a universe of possibilities, none other than the Deputy Leader of the Liberal Party who is always pushing the outer limits of loyalty, always pushing the boundaries just a little at a time bearing in mind that old Marxist slogan, "The worse things are the better they are." We do not know where this document came from. The honourable member for Wakehurst is not in the Chamber, but Mr Pizza, that heroic researcher who researches Opposition policy, is present.

Mr Andrew Humpherson: I sent you one, Bob. Did you eat it?

Mr BOB CARR: I never eat pizza. I am on a low-carb diet. Because it emanated from the honourable member's office, it did not get a chance. The policy could have come from the honourable member. Either way the policy is out there and it shows that the Opposition is making the same mistake it made last time. Opposition members have embarked on a mandatory sentencing policy. What does the Prime Minister say? We always seem to go to him for guidance. On 6 April 2000 the Prime Minister said:

As a matter of principle, I do not agree with mandatory sentencing. I agree with strong sentencing laws—

I am sure we all do—

but in the end I do think these matters ought to be determined by judges and magistrates.

So the Prime Minister is at odds with Opposition members who are all grumbling away. The honourable member for Coffs Harbour does not like that. One never knows, the honourable member for Coffs Harbour might be the one who leaked the document. He is a shadow Minister. Presumably he is not denied access to these documents. He undermines the frontbench at every opportunity he gets. Mandatory sentencing existed in the Northern Territory, which was introduced by a Coalition Government, from 1997 to 2001 when the Clare Martin Labor Government repealed it.

Under mandatory sentencing in the Northern Territory a 24-year-old Aboriginal mother was sentenced to 14 days in prison because she received a stolen can of beer worth $2.50. An 18-year-old indigenous man who stole a $2.50 cigarette lighter was sentenced to 14 days in prison. A 29-year-old homeless indigenous man who wandered into a backyard when drunk and took a $15 towel found out, because it was his third minor property offence, that he had to go to gaol for one year. He stole a towel. An 18-year-old man was sentenced to 90 days in prison for stealing 90¢ from a motor vehicle. Here is a case closer to home that proves just how iniquitous mandatory sentencing can be—the tragic case of Daniela Dawes, sentenced in June 2004 to a five-year good behaviour bond for killing her 10-year old autistic son. The District Court judge said:

This offender has suffered enough and the circumstances of this offence are so exceptional as to justify the imposition of a non-custodial sentence.

Under the Opposition's crude policy Ms Dawes, who was originally charged with murder, could have been sent to prison for life. Mandatory sentencing extinguishes judicial discretion.

Mr SPEAKER: Order! I call the honourable member for Murrumbidgee to order for the third time.

Mr BOB CARR: It also means that fewer people will plead guilty knowing that they would face a maximum penalty, whereas currently in New South Wales—and this is an interesting statistic—more than 90 per cent of criminal cases are resolved by a guilty plea. It will encourage offenders to tie up the courts fighting every possible point in order to escape a maximum sentence, dragging victims through a more onerous process. Juries would be less likely to convict if they feel offenders face maximum penalties, allowing guilty people to walk free.

Mandatory sentencing does not affect crimes rates; it is not a deterrent. Aboriginal custody rates will rise significantly. In the Northern Territory the prisoner population increased by 42 per cent after mandatory sentencing was introduced. I do not believe any government could be tougher on crime than this Government has been, but we will not be seduced by the attraction of the crude, blunt, unjust policy of mandatory sentencing. We have carved out a better model—sentencing guidelines set by the Supreme Court, along with tougher bail laws and tough standard minimum sentences that are putting rigour back into the criminal law.

Ms PETA SEATON: My question without notice is directed to the Treasurer. As evidence grows that he has killed the New South Wales economy—

Mr SPEAKER: Order! The honourable member for Southern Highlands has the call.

Ms PETA SEATON: As evidence grows that the Treasurer has killed the New South Wales economy with the slowest growth in gross State product in Australia at 2 per cent, the slowest growth in employment in the nation at 1.3 per cent, and a more than 20 per cent drop in investment lending in the past year, why will he not give the State's economy a kick start by abolishing vendor tax now?

Dr ANDREW REFSHAUGE: I am reminded of the share game that is being played in the Southern Highlands. Honourable members would have noticed that the Dow Jones index and other indexes are up because those who are playing the share game in the Southern Highlands are buying all the shares. In fact, all except two of the players in the share game in the Southern Highlands are showing a profit. The one who is continuing to come last is the honourable member for Southern Highlands. She was given $5,000 and was told to invest it. After all this time it is now worth a lousy $4,000.

Mr SPEAKER: Order! I call the honourable member for Willoughby to order.

Dr ANDREW REFSHAUGE: If she had invested the State budget she would have lost about $3.2 billion. In answer to the honourable member for Southern Highlands, I refer to an article that appeared in the Australian Financial Review soon after the delivery of the State budget. It is clearly headed, "Buyers ignore vendor tax", and states:

The NSW government's decision to retain its controversial vendor duty did little to dampen interest in yesterday's property auctions in Sydney.

Mr SPEAKER: Order! I call the honourable member for Wagga Wagga to order.

Dr ANDREW REFSHAUGE: The article continued:

Colliers associate director Paul Fernandez said the result showed small investors were still targeting the Sydney market, despite the vendor tax ...

The buyers ignore vendor tax.

Mr BARRY COLLIER: My question is addressed to the Attorney General. What is the Government's response to a request to extend daylight saving for the 2006 Commonwealth Games and related matters?
Mr BOB DEBUS: I thank the honourable member for Miranda for his timely question. All members of the House will fondly remember the spring of 2000, when Sydney hosted the Olympic Games. The nation stood still to watch Cathy Freeman carry the hopes of us all across the finish line to win gold. As all honourable members will be aware, Melbourne is hosting its own major international sporting event, the Commonwealth Games, in March 2006. Next year it will be Melbourne's turn to shine. Melbourne supported Sydney when we held the Olympics and New South Wales supported Melbourne in its bid to host the Commonwealth Games. We all wish to see Melbourne deliver the best ever Commonwealth Games. We want a successful Games that reflects well not simply on Victoria but on the entire nation.

As part of preparations for the Games, the Victorian Premier has approached the New South Wales Government and requested that this State extend its daylight saving period to synchronise time zones in the States and give everybody the maximum opportunity to enjoy the Melbourne Commonwealth Games and the many sporting, cultural and social events that always surround a major occurrence of this type. In a spirit of co-operation, the Government will introduce legislation to ensure that our daylight saving period is aligned with that of Victoria. In 2000 this Government took action to extend daylight saving for the Sydney Olympic Games. Daylight saving began at the end of August in 2000 instead of on the usual commencement date in October. At that time the New South Wales Government appreciated the assistance of a number of other States, which agreed to change their daylight saving periods in line with our arrangements for the Games. When Sydney hosted the 2000 Olympic and Paralympic Games daylight saving commenced approximately two months earlier than normal, and Victoria, South Australia and Tasmania joined New South Wales in extending their daylight saving periods.

Apart from extending the next period of daylight saving to assist our southern neighbour, the Government's legislation will also ensure that future changes to daylight saving periods can be made more easily and flexibly. I think it is acknowledged that daylight saving has become an important way of life for the people of New South Wales. It is an essential part of our summer, and the vast majority of people in this State strongly support it. There are those who complain of the proverbial fading curtains and the cows having to be milked too early—indeed, there is some residual resentment of daylight saving in country areas. But it is fair to say that the overwhelming number of people in this State support daylight saving and the lifestyle benefits it brings. I look forward to introducing the relevant legislation.

Mr DONALD PAGE: My question is directed to the Treasurer. Given that the Commonwealth has had its $12 million on the table for the Alstonville bypass since 2003 and the Premier made a commitment in a media release to complete the project by the end of 2006, why, as revealed in the budget papers, did the Treasurer fail to spend $7 million on the project last year, resulting in a two-year delay?

Dr ANDREW REFSHAUGE: I will consult my colleague the Minister for Roads and get back to the honourable member for Ballina.

Ms ALISON MEGARRITY: My question is addressed to the Minister for Community Services. What is the latest information on the Department of Community Services Helpline and related matters?

Ms REBA MEAGHER: Mandatory reporting means that those who work with children have a legal obligation to report suspected child abuse. This obligation helps to ensure that children and young people at risk of harm come to the attention of child protection authorities. It means that if a police officer or a nurse is concerned about an unexplained bruise on a child or a domestic violence situation in the home they have a legal obligation to call the Department of Community Services [DOCS] Helpline. The DOCS Helpline is expected to receive about 210,000 calls this year. About 75 per cent of those come from mandatory reporters. Their reports allow the Department of Community Services to assist families and prevent further harm.

Our commitment to mandatory reporting has been endorsed by the experts. Most recently, research conducted by the Association of Child Welfare Agencies found that staff in non-government agencies have a strong commitment to mandatory reporting, stating that it is an expression of a commitment to the right of children and young people to be safe. In New South Wales mandatory reporting was introduced in the mid 1970s. Some professionals, such as education and health staff, have long been mandatory reporters. Strong support for the extension of mandatory reporting was also found in the review of the Children (Care and Protection) Act 1987, and in 1997 the Wood royal commission recommended the extension of mandatory reporting in New South Wales. This Government responded decisively to the recommendations of the royal commission and extended mandatory reporting requirements so that more police, more nurses and more teachers call the Helpline on a regular basis, alerting DOCS to potential child abuse.

Having a centralised intake process was also acknowledged as being an effective system for protecting children in an independent review of the DOCS Helpline released recently by the New South Wales Auditor-General. The Auditor-General's report of last week found that the Helpline in New South Wales handles more than 4,000 contacts a week. The report also found that average call waiting times have been cut from more than 20 minutes in 2000 to less than 5 minutes in 2004. Reports indicating that the child is in imminent danger are fast-tracked and centralised child protection reports have provided greater assurance that reports are assessed consistently. These successes were achieved during a period when calls to the Helpline increased by a stunning 96 per cent. While the report's findings show that significant progress has been made, there is also a need to strive for further improvements where child protection matters are concerned. Our improvements to the Helpline have been achieved by more than doubling the number of caseworker positions from 54 to 142, increasing the Helpline budget from $6.9 million to $15.7 million, requiring caseworkers to use queue management technology, and giving priority to callers who indicate that a child is in imminent danger.

Mr SPEAKER: Order! I call the honourable member for Davidson to order.

Ms REBA MEAGHER: The Opposition continues to ignore the importance of the Helpline and mandatory reporting in preventing child abuse. It responded to this report by announcing that it would dismantle the Helpline and wind back mandatory reporting. This means that the Opposition would abolish a hotline that operates 24 hours a day, seven days a week.

Mr SPEAKER: Order! The honourable member for Davidson will resume his seat.

Ms REBA MEAGHER: The Opposition would require reporters to find the telephone number of their local DOCS office—one of the 85 DOCS offices throughout New South Wales—and ring between the hours of 9.00 a.m. and 5.00 p.m. The Opposition wants to wind back a service that protects children in New South Wales.

Mr SPEAKER: Order! The honourable member for Davidson will resume his seat.

Ms REBA MEAGHER: The Opposition plan will put children at risk. It further highlights the fact that the Opposition wants to slash 142 jobs from the DOCS Helpline, it wants to slash $700 million from the budget, it wants to dismantle $150 million worth of early intervention services and it wants to dismantle the joint investigation response teams conducted with police. The Opposition would put children at risk. That should be contrasted with the Carr Government that has invested an extra $1.2 billion in community services in New South Wales. I thank those people from the community who call the Helpline to make these reports and act on their concern. I also thank the DOCS workers at our Helpline who take reports 24 hours a day, seven days a week.

Mr JOHN WATKINS: Earlier the Leader of the Opposition asked me a question about train drivers training. I am advised by RailCorp that the material referred to today by the Leader of the Opposition with regard to driver training has nothing whatsoever to do with driver training assessment.

Mr SPEAKER: Order! The Minister has the call and will be heard in silence.

Mr JOHN WATKINS: Trainee drivers undertake an accredited course known as Certificate IV, Transport Distribution, Rail Operations, which is regularly audited. The assessment does not provide students with access to correct answers prior to testing. One computer course is called Road Knowledge, Points of No Return and is multiple choice. Students are assessed on the number of correct answers they make. A CD-ROM was developed in late 2002 around the new safe working manual being introduced for drivers. The program called New Rules was sent to people's homes so they could familiarise themselves with the new manual—a typical educational process.

Mr SPEAKER: Order! I call the honourable member for The Hills to order.
Mr JOHN WATKINS: It has nothing whatsoever to do with driver training assessment. This is the second shameful incident today whereby the Opposition has deliberately set out to undermine public trust in our rail system. This morning it was the honourable member for Vaucluse, Chicken Little. Chicken Little was down at Circular Quay this morning.

Mr SPEAKER: Order! The time for questions has not yet expired. A number of members have been called to order a number of times. I now deem those members to be on three calls. Question time will finish in the appropriate way.

Mr JOHN WATKINS: This morning the honourable member for Vaucluse went on any radio station that would take him and suggested that the supports for the Circular Quay rail line and the Cahill Expressway were crumbling.

Mr SPEAKER: Order! I place the honourable member for The Hills on three calls to order.

Mr JOHN WATKINS: I regret I am forced to dignify that claim with today's answer, but I have to do so, to make sure people travelling in trains and on the expressway are aware of the safety of Circular Quay.

Mr SPEAKER: Order! The honourable member for Swansea will come to order.

Mr Peter Debnam: Point of order: The Minister is clearly misleading the House.

Mr SPEAKER: Order! The honourable member for Vaucluse will resume his seat.

[Interruption]

Mr SPEAKER: Order! I place the honourable member for Vaucluse on three calls to order.

[Interruption]

Mr SPEAKER: Order! I ask the Deputy Sergeant-at-Arms to remove the honourable member for Vaucluse.

[The honourable member for Vaucluse left the Chamber, accompanied by the Deputy Serjeant-at-Arms.]

Mr SPEAKER: Order! Before the Minister resumes his answer, I remind members that the Chair takes great exception to material being thrown across the Chamber. Ever since this Chamber was constituted that behaviour has always been regarded as a gross act of disorder. It offends against the standing orders and the Chair will not tolerate it.

Mr JOHN WATKINS: The lie was uttered this morning at Circular Quay; it has been uttered again in this House this afternoon with that disgraceful performance. This morning the honourable member for Vaucluse said that people's lives were at risk. Well, the Independent Transport Safety and Reliability Regulator advises me that the pylons are structurally sound. RailCorp engineers advise that the pylons are structurally sound. The Roads and Traffic Authority and the Sydney Harbour Foreshore Authority also concur that the pylons are sound. In other words, four government authorities have said that those pylons are sound. Yet, the honourable member for Vaucluse came into this Chamber today and again uttered the lie. In the same question time, the Leader of the Opposition deliberately tried to undermine confidence that people have in driver training. My answer shows that it had nothing to do with driver training. The Opposition should be ashamed of those factors when it declared that the travelling public of New South Wales are being put at risk. It is wrong. It was a lie this morning; it is a lie now.

Dr ANDREW REFSHAUGE: Earlier I was asked a question in relation to the Alstonville bypass. I am advised by the Minister in the other House that the State Government is contributing some $24 million—double the Federal Government's contribution—to this project. The money is funded from the existing forward capital works program of the Roads and Traffic Authority. The Federal Government has made no allocation for it in its budget.

Questions without notice concluded.
Motion by Mr Carl Scully agreed to:

That the House at its rising this day do adjourn until Wednesday 8 June 2005 at 10.00 a.m.

Mr CARL SCULLY (Smithfield—Minister for Police) [3.23 p.m.]: I move:

That standing and sessional orders be suspended to provide that the routine of business be varied to not call on motions for urgent consideration, matters of public importance and private members' statements on Tuesday 7 June and Wednesday 8 June 2005.

We are a very busy Government and we have a lot of legislation to get through.

Mr ANDREW TINK (Epping) [3.24 p.m.]: This is not a busy Government—it is an incompetent Government. In particular, for the first half of the year the incompetent Leader of the House has not been able to manage the business of the House. A whole lot of legislation has bunched up and has to be dealt with now in this way, thereby robbing the House of the opportunity to deal with important matters. For example, as a result of this motion the House will be robbed of the opportunity to debate the urgency motion of which I gave notice this afternoon.

If this motion is passed, the House will not be able to consider the important question of whether the public statement by the Chief Judge that Judge Dodd is able to carry out his duties as a judge in an appropriate manner is in fact accurate. The House will not be able to consider whether or not media reports that the Roads and Traffic Authority suspended Judge Dodd's driving licence due to his sleep apnoea problem are accurate. It is important that the House call on the Judicial Commission to investigate how it is that a judge is able to concentrate sufficiently to adjudicate from the bench but is not able to concentrate sufficiently to drive a motor vehicle.

It is impossible to think of a more important matter that the House should consider this afternoon. How could a judge who is prohibited from driving because he cannot concentrate be allowed to remain on the bench and pass judgment on people, many of whom may appear before him on driving offences? It is an absolute nonsense that that is the case. The question that this House would be able to consider this afternoon but for the suspension motion moved by the Leader of the House is: How can a judge be unfit to drive, but fit to judge, where concentration is the issue? How could the Chief Judge of the District Court be satisfied that Judge Dodd has the capacity to concentrate when the Roads and Traffic Authority could not be so satisfied? The House should consider on what medical evidence the Chief Judge based his opinion. The House ought to be able to consider on what evidence the Roads and Traffic Authority based its opinion.

The House ought to be able to consider the question: Does the Roads and Traffic Authority have a more efficient and effective system than does the Judicial Commission and the Chief Judge for assessing the medical condition of judges relating to concentration? Whatever the incompetence of the Leader of the House, however many bills are before the House for consideration, that question surely must be more important. At the end of the day, the bills that the Government is rushing through may contain penalty clauses and other provisions that may result in some people in this State being brought before the courts for judgment—that is, being brought before Judge Dodd for judgment, and being brought before a sleeping Judge Dodd for judgment because the Chief Judge has a view different from that of the Roads and Traffic Authority on whether Judge Dodd is able to stay awake.

Six million people of this State can be judged against Roads and Traffic Authority standards on whether or not they can concentrate. Apparently, the 100 or so judges in this State, any or all of whom can pass judgment on the six million people of New South Wales for any number of offences, cannot have their judgment called into question. Did Judge Dodd reveal to the Roads and Traffic Authority things that were not revealed to the Judicial Commission? Was there a resolution of the Judicial Commission on its consideration of these matters?

Mr Bob Debus: Point of order—
Mr ANDREW TINK: I will not allow the Attorney General to gag me and prevent me talking about the incompetence of a judge that he appointed! Who appointed Judge Dodd? It was the Attorney General. He is aiding and abetting Judge Dodd remaining in court; he is aiding and abetting a sleeping judge. The Attorney General appointed a sleeping judge. The Attorney General is a disgrace. He ought to make it very clear to the Judicial Commission that we will get to the bottom of each and every one of those questions.

Mr SPEAKER: Order! The honourable member for Epping, who is on three calls to order, came close to not being able to vote on the motion. Only the prevailing good humour of the House has influenced me in allowing him to remain for the vote.

Question—That the motion be agreed to—put.

The House divided.

Ms Allan Mr Amery Ms Andrews Ms Beamer Mr Black Mr Brown Ms Burney Miss Burton Mr Campbell Mr Collier Mr Corrigan Mr Crittenden Ms D'Amore Mr Debus Ms Gadiel Mr Gaudry Mr Gibson

Mr Greene Ms Hay Mr Hickey Mr Hunter Mr Iemma Ms Judge Ms Keneally Mr Knowles Mr Lynch Mr McLeay Ms Meagher Ms Megarrity Mr Mills Mr Morris Mr Newell Ms Nori Mr Orkopoulos

Mrs Paluzzano Mr Pearce Mr Price Dr Refshauge Ms Saliba Mr Sartor Mr Scully Mr Shearan Mr Stewart Mr Tripodi Mr West Mr Whan Mr Yeadon Tellers, Mr Ashton Mr Martin

Mr Aplin Mr Armstrong Mr Barr Ms Berejiklian Mr Cansdell Mr Constance Mr Draper Mrs Fardell Mr Fraser Mrs Hancock Mr Hartcher Ms Hodgkinson

Mrs Hopwood Mr Humpherson Mr Kerr Ms Moore Mr O'Farrell Mr Oakeshott Mr Page Mr Piccoli Mr Pringle Mr Richardson Mr Roberts Ms Seaton

Mrs Skinner Mr Slack-Smith Mr Souris Mr Stoner Mr Tink Mr Torbay Mr J. H. Turner Mr R. W. Turner Tellers, Mr George Mr Maguire

Mr Bartlett	Mr Brogden
Mr McBride	Mr Hazzard
Mrs Perry	Mr Merton

Question resolved in the affirmative.

Motion agreed to.
Debate resumed from 27 May 2005.

Mr CHRIS HARTCHER (Gosford) [3.43 p.m.]: The bill has a long history that involves the blockade outside this Parliament in 2000 when the workers compensation legislation was passed, and the subsequent internal ruckus within the Australian Labor Party. The Government forced the trade union movement to accept its amendments to tort and workers compensation law and was anxious to hold out an olive branch, especially to its principal critic in the trade union movement, the Construction, Forestry, Mining and Energy Union [CFMEU]. Consequently, the Government began negotiations with the CFMEU to try to satisfy some of the demands of that left-wing union. In turn the CFMEU mounted a campaign for the creation of an offence of industrial manslaughter, which, to an extent, was successful in the Australian Capital Territory when the legislation sought by that left-wing union was introduced.

The New South Wales Government resisted the creation of a statutory offence of industrial manslaughter, and instead made submissions to a parliamentary inquiry established by the Legislative Council to investigate workplace deaths. When the Government and, more importantly, the union were dissatisfied with the recommendations of the inquiry, the Government set up its own committee to investigate workplace deaths, again a concession to the CFMEU. The group of people constituted to conduct the inquiry, the so-called "eminent persons", included such illuminati as a former staffer to the former Labor Minister for Industrial Relations, Jeff Shaw. The committee produced a flawed report and made extremely unsatisfactory recommendations. However, the Government seized upon the recommendations and, again pressured by the CFMEU, in 2004 introduced as an exposure draft bill the Occupational Health and Safety Legislation Amendment (Workplace Fatalities) Bill 2004.

In October 2004 the Minister for Industrial Relations, Mr Della Bosca, introduced the 2004 bill in the Legislative Council and tabled it as an exposure draft bill. The proposed legislation was so extraordinary that it aroused enormous indignation throughout the community, which resulted in the development of a strong campaign led by the Leader of the State Coalition, John Brogden, and supported by organisations such as New South Wales Farmers, Australian Business Ltd, Employers First and a host of other industry organisations. When industry groups saw the legislation they flooded the Government and the Opposition with objections. It is salient to recall the Government's proposal in the legislation. By including the principles set out in the Occupational Health and Safety Act the bill created an offence of absolute liability. Section 8 of the Occupational Health and Safety Act, which was included in the 2004 bill, obliged the employer to ensure the safety of all those in the workplace, be they employees or visitors. The employer had no defence, other than the general defences set out in section 28 of the original Act.

The onus of proof was thus transferred from the Crown or the prosecutor, whoever it might be, to the employer. Once a workplace fatality had occurred the employer was obliged to show that he had taken all possible steps to avert it. This was contrary to the established principles of common law and justice, under which the accused person is entitled to a presumption of innocence until proven guilty before a court. The inclusion of this principle aroused strong resentment within the community and resulted in vigorous attack upon the bill. Further, the bill did not allow for any defence that an employee of the employer was negligent or careless, or that the employee had breached instructions. Therefore, the employer was strictly liable for the actions of the employee, even if the employee had failed to act as directed by the employer. An example is a truck driver ignoring instructions from an employer to obey traffic laws. If the truck driver were killed in an accident, the employer would be liable under the proposed legislation because a truck has been held to be a workplace and the employer could not prove that he had taken every possible measure to avert the tragic death.

The Construction, Forestry, Mining and Energy Union ran a highly emotive campaign across the State, focusing on a number of accidents, which tragically had caused death, especially in the building industry. The CFMEU attempted to use the sadness of family loss as a way of exemplifying its demand for the legislation to be introduced. The CFMEU's campaign, more than an attempt to develop a safe working system in New South Wales for employees, was really an attempt to force the union's will upon the Government and show its members that it had influence over the Government.

The 2004 bill provided for aggravating factors to increase penalties that were set out in the bill, but it did not allow for mitigating factors. The Government argued that mitigating factors were already allowed for, but what type of extraordinary legislation creates a new offence, denies the presumption of innocence, and sets out aggravating factors to increase the penalties that are provided by law? The bill allowed for a person to be imprisoned for up to five years without a trial by a jury. There was to be no indictment presented in the traditional sense before a court constituted by a judge and jury, but action was to be brought and maintained in the Industrial Relations Commission. That is contrary to the established principles of justice under which a person who is liable to a period of imprisonment normally is allowed to exercise their rights to be tried by indictment and to have their case determined by a judge and a jury of their peers.

The original legislation that was brought across to this bill also allowed for a trade union to bring the prosecution. The incentive for trade unions to bring prosecutions was the enormous fines provided by the bill. The fines consisted of 15,000 penalty points for a corporation, or $1,650,000. These extraordinary fines were a straight-out incentive to left-wing unions, such as the CFMEU, to engage in bounty hunting. It encouraged unions to use the threat of prosecution as an industrial device against employers. The bill was designed to enable unions, particularly left-wing unions, to simply use legislation as a battering ram against an employer; not to achieve industrial safety or workplace safety but to achieve the aims and objectives of the union. Under the original legislation, the union is entitled to a moiety, which is 50 per cent of a fine.

By allowing a trade union, as a registered industrial organisation and an interested party, to bring a prosecution, the bill denied to an accused person the right to have an independent prosecutor. One of the fundamental principles of our system of justice concerning people who are liable to heavy penalties such as fines or imprisonment is that normally they have an independent prosecutor. In courts of summary jurisdiction, the prosecutor is the police, and on indictable matters, the prosecutor is an officer of the Director of Public Prosecutions. No such independent prosecutor was allowed under the 2004 legislation when interested parties—exclusively, in these cases, registered industrial organisations or trade unions, particularly left-wing trade unions, because employer organisations do not exercise such powers—were allowed to bring prosecutions.

The 2004 legislation allowed appeals to be lodged only against prison terms and did not allow appeals to be lodged against fines. That represented an extraordinary denial of fundamental rights because even the most insignificant traffic fine in the Local Court can be the subject of an appeal to the District Court. Yet in respect of the 2004 legislation, we were witness to enormous fines, prosecutions being brought by interested parties, the onus of proof being effectively reversed, trial by jury being denied, and enormous fines not being subject to the right of appeal. The only appeal allowed under the 2004 legislation was against a sentence of imprisonment.

This legislation was rightly described as draconian by business and by he Leader of the Opposition. It attracted criticism of the Government on the grounds of the denial of fundamental rights and, significantly, because the Government admitted that the legislation was unnecessary and unjustified. The Government's admission came in a statement made by the Minister for Industrial Relations in answer to a prearranged question asked by the Hon. Peter Primrose in the Legislative Council on 22 March 2005. The Minister was asked about workplace fatality figures in New South Wales, and he stated:

I advise the House that work-related fatalities and employment injury rates have dropped to their lowest levels in 15 years. WorkCover's latest statistical bulletin shows there were 136 work-related deaths in 2002-03 and 51,000 injuries. It is tragic and regrettable that anyone should be killed or injured while earning their living, but the trend is down, and fewer people are dying or being injured in New South Wales workplaces. The figures are 10.8 injuries per million hours worked and 18.5 injuries per 1,000 employees—the lowest levels since the current workers compensation scheme started in 1987.

Despite the fact that workplace fatalities and injuries were the lowest since 1987, the Government suddenly believes that this legislation, providing draconian penalties, was somehow justified. The Minister went on to state:

The 2002-03 statistical bulletin reports a significant reduction in the number and cost of injuries over the previous year. In particular, compensable fatalities were down 23 per cent. Fatal injuries occurring at the workplace were down almost 33 per cent. Fatalities resulting from occupational diseases were down more than 22 per cent. All injuries occurring at the workplace were down 7 per cent and the average cost of a workers compensation claim was down almost 13 per cent.

The figures are a clear indication that New South Wales employers—

Let me repeat that—

The figures are a clear indication that New South Wales employers and employees are making strong progress towards the Government's target of reducing workplace injury and illness by 20 per cent and fatalities by 10 per cent by 2007. These latest figures are extremely encouraging …

What could be a more clear-cut indictment of the Government's legislation than the fact that the Minister admits that there was no need for it, when the Minister says that there is an ongoing downward spiral in the number of workplace fatalities and in the number of workplace injuries, and when the Minister congratulates employers and employees on making "strong progress"? Clearly, the Government has admitted that there was no justification for this legislation in an industrial sense. The Government has never been prepared to admit that it was doing a deal with the union movement, especially the CFMEU, to placate it .. One must ask why this legislation is being put before the Parliament and rushed through. Why have standing orders been suspended?

The reason is that next weekend, at the Australian Labor Party's annual conference, speeches will be made by the Premier and he will want to be able to tell the annual conference that the Government has placed on record, through legislation, tough workplace fatality bills, and that the Government has satisfied the demands of sections of the trade union movement and is responsive to the trade union movement. That is why this legislation has been urgently brought before the House—so that the Premier has something to tell the Australian Labor Party annual conference when he addresses it this weekend.

The Government has varied the normal order of procedure in this House by suspending the standing orders for this afternoon and denying the usual process for an urgency motion or for a matter of public importance. The Government has denied members the right to make a private member's statement. Why? The Government has brought on this legislation to be dealt with straightaway so it can be passed through the Legislative Assembly and, presumably, the Legislative Council and be finished by the time the Premier stands up before the annual conference of the Australian Labor Party on the Queen's Birthday long weekend and states, "We have delivered to the trade union movement."

This legislation is not required for industrial purposes; it is required for the personal agenda of the Premier and his Ministers. This State already has the Occupational Health and Safety Act, which makes a breach of the occupational health and safety regulations an offence and imposes penalties for that breach. There is already a law against conduct by an employer that causes the death of, or injury to, an employee. What justification is there for increasing penalties? None. What argument has been made that the courts have not imposed adequate penalties? None. The Minister for Industrial Relations did not address that point in his second reading speech and there has never been any acknowledgment by him that the penalties are inadequate. The Government's only argument is that it must satisfy the concerns of the union movement.

In addition to the Occupational Health and Safety Act, this State has the Crimes Act, which creates the offence of manslaughter. Any reckless conduct causing death could satisfy the elements of the crime manslaughter, and penalties up to 25 years imprisonment may be imposed upon conviction for that crime. The Crimes Act also provides that any person who, by an act of negligence, causes the death of any other person is liable for up to two years imprisonment. In this State there is already a strong legislative framework that would punish any employer whose reckless or negligent conduct caused the death of any other person, including an employee or a visitor. It should be borne in mind always that section 8 of the Occupational Health and Safety Act extends the liabilities of an employer to anyone at the workplace, not just an employee.

Why is this legislation necessary when the Crimes Act already contains those two strong sections? The problem with the Crimes Act, from the Government's point of view, is that it allows trial by jury. The Crimes Act requires that the prosecution be brought in a court, before a judge and before a jury, and that the prosecution proceed by way of indictment. The Crimes Act further requires that proceedings be instituted by the Director of Public Prosecutions, an independent prosecutor. A trade union would not institute proceedings because, once commenced, they could be taken over at any time by the Director of Public Prosecutions. Under the Crimes Act there is a judge, a jury, an indictment, an independent prosecutor and, of course, the full rules of evidence, under which everyone is presumed innocent until proven guilty. Further, the Act provides full rights of appeal against a fine or a sentence of imprisonment.

The common law protects people who are charged with a crime and whose liberty or money may be forfeited to the State. The Government is not interested in prosecutions under the Crimes Act. The Government wants a judicial system that would deny fundamental rights to employers, deny the right of trial by jury, deny the right of an independent prosecutor, and deny the right to have an indictment. In lieu of those rights the Government wants to open up a system under which prosecutions may be launched by interested parties such as trade unions. The Government—having introduced the 2004 legislation with no reason to do so industrially due to the decline in deaths and injuries, and with no reason to do so legislatively as its provisions are already covered by the Occupational Health and Safety Act and the Crimes Act—withdrew that legislation.
The only reason for the introduction of the bill is to satisfy the Premier's desire to be able to make a statement to the annual conference of the Australian Labor Party this weekend. The Government has acknowledged that the 2004 legislation was unworkable. The Government acknowledged that in the most disingenuous way by stating on a web site that the legislation would not be proceeded with. Initially the Minister for Industrial Relations, Mr John Della Bosca, did not issue a press release, but on 13 April Minister Della Bosca released an online statement to the Public Service Association stating:

It has now become clear that the draft consultation bill does not satisfy some of the tests that have been set by the Government and will not be introduced in its current form.

The Government backed off, but did so under the table by issuing an online statement to the Public Service Association. When the Opposition exposed that statement, the Minister acknowledged that the legislation was not proceeding and said he would introduce new legislation, the 2005 legislation. What is wrong with the 2005 legislation? The Government said that the 2005 legislation is a marked improvement on the 2004 legislation and is a result of community and business concerns. Yet the 2005 legislation retains, however disguised, a number of the most objectionable features of the 2004 legislation. First, the bill allows prosecutions by WorkCover or by any other party with the Minister's consent. That is the deceit, because the Government can say that trade unions do not have a right to bring a prosecution, but they can bring a prosecution if the Minister consents.

That is the escape clause for the Government: ministerial consent to a prosecution. That is clearly acceptable to the trade union movement, especially its left wing, because it knows that the Minister will bow down to its demands if it wishes to bring a prosecution. The Minister will sanction that prosecution, and the trade unions need only get his signature on the consent and the prosecution can be launched. The Government has not abandoned the power of trade unions to bring a prosecution. The Government has simply put a procedural mechanism in the way, and that will be absolutely meaningless, given the nature of the Government's relationship to the trade union movement and the willingness of the Minister to bow down to the trade union movement. That is totally unacceptable.

Second, the legislation still maintains the power of the Industrial Relations Commission to hear charges for a breach of the Act and impose penalties of up to five years imprisonment. The Industrial Relations Commission is constituted as a body to determine industrial disputes. It has a proud history as one of the oldest courts in New South Wales. I acknowledge the words and integrity of its President, Justice Lance Wright, but it was not established to deal with criminal matters. It is not of itself a criminal court, even though it has dealt from time to time with offences against industrial relations laws.

It is not a court that is designed to work on the presumption of innocence and it is not a court that functions well in determining guilt or innocence in a criminal context. I believe that most judges in the Industrial Relations Commission would prefer criminal matters to be determined outside that court. After all, judges in the Industrial Relations Commission are overwhelmingly drawn from the industrial bar where its members have argued industrial rather than criminal cases. Notwithstanding that, the legislation still allows for prosecutions for the new offence created by the bill to be brought in the Industrial Relations Commission and for the imposition of a sentence of five years imprisonment. That is objectionable, just as the power of the Minister to bring a prosecution, or to sanction a trade union to bring a prosecution, is objectionable.

I foreshadow that the Opposition will move amendments in Committee to clause 4 and schedules 1 and 2. The Opposition also objects to the provisions in the legislation that allow for the imposition of enormous fines of 15,000 penalty points. Those exceptional fines go beyond the normal range of criminal penalties. Given the fact that the Crimes Act and the Occupational Health and Safety Act are already in place, there is no justification for such fines. No justification for those fines was advanced in the second reading speech. There is no differentiation between offences and there is no increased penalty for second or subsequent offences, but all offences carry the same penalties, that is, a term of imprisonment of up to five years and a monetary penalty of 15,000 penalty points, or 1,500 penalty points where an individual is involved.

Essentially the bill creates a new offence, that is, causing the death of a person in the workplace to whom the employer or others owe a duty to ensure his or her safety and where the person who causes the death is reckless as to the danger of death or serious injury to any person to whom a duty is owed. In a sense the legislation creates the offence of industrial manslaughter as it is workplace related, even though it can apply to the death of a person who is not an employee. That is one of the extraordinary features among the many extraordinary features of this legislation. Under section 8 of the principal Act a duty is owed to persons other than employees in the workplace. There could be situations such as that described by the managing director of the Commonwealth Bank. If a customer of a bank is tragically killed while a bank robbery is taking place the manager of the bank could be held liable by the combined operation of this bill and section 8 of the principal Act. I doubt whether that is a far-fetched proposition. Indeed, lawyers agree that that would be so.
The legislation does not simply catch employers; it catches any person who owes a duty of care to ensure the safety of other persons in the workplace. The legislation catches people all the way down the chain of responsibility from the team leader down to the site foreman and to the local manager. This legislation will not somehow simply penalise employers, however wrong we believe that to be; it will penalise any person who has any responsibility in the workplace. It will catch workers as well as managers. It will catch people who are unaware of what is happening in the workplace. It will catch managers who are in offices and boards of directors who are located in a head office and who are not familiar with what is happening in the workplace but who may well have approved protocols to ensure proper workplace safety. Notwithstanding that fact, they could be caught when these protocols are breached. Employers First, in expressing its opinion of the bill, states:

"Conduct" includes acts or omissions, and the conduct that causes the death need not take place at the workplace (for example, boardroom decisions). The acts or omissions included in "conduct" will inevitably be taken to include the failure to carry out risk management or to do it appropriately, and the failure to provide information instruction and training, etc.

By imposing a range of criminal liability the bill, which is far-reaching, will catch people who would not normally be caught. Employers First goes on to state:

The Bill is full of qualifying terms which lower the bar as to who might be convicted. It is drafted in a manner that will allow prosecutions to go well beyond those whom we might all agree are rogues/cowboys.

"substantially contributed"—For the conduct to be regarded as causing the death, the prosecution (and this may be a trade union) needs only prove that it "substantially" contributed to the death. "Substantially" is well recognised in the law as an imprecise and ambiguous term meaning anything between "not merely minimal" and "considerable, large or big".

The submission continues:

"or serious injury"—The less serious the potential injury, the easier it is for the prosecutor to prove recklessness. Even though the Bill is about workplace deaths, recklessness is not to be assessed just in relation to the risk of death but also the risk of serious injury.

This is a bill about workplace deaths, but recklessness can be proven if the act of negligence or a breach of occupational health and safety could merely have led to injury—in this case a so-called serious injury, although that is not defined. The Government has lowered the bar in a disingenuous fashion. The submission goes on to state:

"any person"—It is the danger of death or serious injury to any person, not explicitly the person who has died.

If the prosecution brings an action and establishes that there was a danger of death or serious injury to a person, that satisfies the requirements in the bill, even though the person to whom the danger was presented need not be the person who has died. The whole tenor of this bill remains objectionable. The Government might believe that it has satisfied the concerns of business organisations, but it has not satisfied the concerns of the Opposition or those in this State who believe in civil liberties. As I have already said, the right of appeal relates only to those who are sentenced to imprisonment, not to corporations or individuals upon whom huge fines can be imposed. I read out the summary of objections in the submission of Employers First:

o Absolute liability ...

o Compliance with regulations no defence in itself.

o Deemed guilt, reverse onus.

o No jury, no criminal law right not to self-incriminate.

o Costs of the prosecution routinely imposed on convicted employer.

o All prosecutions by summary trial, no jury.

o Aggravating factors apply at time of sentencing, not determination of guilt.

o Strategic grouping of key factors to compromise defendant.

o Previous offender convictions dates back to 1983, even including minor offences. These will be considered in the sentencing for a fatality.

At the very least the Government should agree to trial by jury and to an independent prosecutor. These are the amendments that the Opposition is seeking. Accordingly, the Opposition gives notice as follows. While we will not oppose the second reading of the bill in order to allow consideration of Opposition amendments in Committee, we will oppose its third reading if the Government does not accept our amendments. We will maintain that position in both the Legislative Assembly and the Legislative Council.

Everybody in this community—be they employer groups, employees or Opposition members—believes workplaces must be safe. Everybody believes people who act in a way that causes death or risk of injury must be brought to account. Everybody believes rogue employers should be prosecuted and punished for their offences. Everybody believes it is the responsibility of government, employers and employees alike to maintain safe workplaces. But this legislation will not improve workplace safety; it will not make a single workplace safer. All this legislation will do is impose massive penalties on employers while denying them their fundamental rights of appeal and to trial by jury.

The Carr Government has made an unholy deal with the trade union movement. If this legislation is passed by Parliament, the Premier will have the theme for his address to the annual conference of the Australian Labor Party this weekend. But it will come at a price. The price will be the imposition of unjustified and essentially unworkable laws on business in this State. The price will be the denial of fundamental civil rights to employers and to those whom they employ to maintain workplace safety, such as team leaders and foremen, all of whom will be caught by this legislation. Accordingly, I give notice that the Opposition regards this as flawed legislation. For the reasons that I have advanced, I believe this legislation is unnecessary. I conclude my brief remarks about this bill by quoting again the words of the Minister for Industrial Relations on 22 March this year, when he said:

The figures are a clear indication that New South Wales employers and employees are making strong progress towards the Government's target of reducing workplace injury and illness by 20 per cent and fatalities by 10 per cent ... These latest figures are extremely encouraging ...

The downward spiral of workplace fatalities continues and the Minister has said that the figures are "extremely encouraging". How, then, does the Government and the Minister justify this draconian legislation?

Ms ANGELA D'AMORE (Drummoyne) [4.22 p.m.]: I welcome this opportunity to speak in support of the Occupational Health and Safety Amendment (Workplace Deaths) Bill. While all workplace deaths are tragedies, those that result from recklessness or indifference are unforgivable and must be dealt with in the same manner as other serious criminal acts. This bill will ensure that an appropriate punishment is available to those who disregard the safety of others and cause a workplace death. I emphasise that point. The penalties available for this new offence of workplace death are certainly higher, but the Government will not make any apology for that. We are talking about people's lives.

For corporations, a breach under the new offence could lead to the imposition of a maximum penalty of $1.65 million. Individuals, including directors and managers, could face a maximum of five years gaol and/or a $165,000 fine. The scale of those penalties reflects the degree of culpability and criminality required in order to be found guilty of the new workplace offence. The community can be assured that if an individual or corporation is found guilty of this new workplace death offence the penalties available will correspond to the conduct of that corporation or individual. The courts can apply the full scope of the penalty in dealing with the most abhorrent acts of indifference to those in the workplace. This bill ensures that the punishment fits the crime.

While the bill provides for greater punishment for the more culpable offences, it also acknowledges that the scale of the penalty the defendant potentially faces requires that there are certain measures to protect the interests of the defendant to some degree in such proceedings. In this respect the bill balances, on the one hand, the interests of the community in seeing that justice is done and that appropriate penalties are applied and, on the other hand, the rights of defendants who are liable to substantial punishment. The bill addresses the interests of defendants in a number of ways. It provides the additional defence of reasonable excuse in relation to the new workplace death offence. Although what constitutes a reasonable excuse will generally depend on the facts of a particular case, the defence will be wider than that of lawful excuse. This additional defence will ensure that a court takes account of the inherent dangers and difficulties of particular types of work when considering the application of the new offence.

The bill will also allow, for the first time, a right of appeal from the Industrial Relations Commission in Court Session to the Court of Criminal Appeal. Although the commission is the appropriate jurisdiction to hear occupational health and safety matters and has a status equal to that of the Supreme Court, the defendant's right to appeal against the imposition of a term of imprisonment from the full bench of the Industrial Relations Commission in Court Session to the New South Wales Court of Criminal Appeal was considered appropriate in relation to the new offence. In providing for this additional level of appellate review, the bill allows the defendant every opportunity to make his or her case against being sentenced to a term of imprisonment.

The consequences for a defendant who is convicted of this new workplace death offence are serious—and rightly so. On the one hand, the bill provides for very high penalties for reckless offenders, but, on the other hand, it also accommodates the interests of the defendants involved in such proceedings. The bill ensures that those convicted of the new workplace death offence will be deserving of the punishment imposed by a sentencing court. The Government should be commended for its consultative approach to the bill, which is reflected in the balanced nature of its provisions. It is certainly not a bill that right-minded employers have to fear. However, rogues in the workplace will need to improve their safety practices. All workplaces and all those who work in them will be safer as a result of this bill. I commend the bill to the House.

Mr ANTHONY ROBERTS (Lane Cove) [4.26 p.m.]: It is with a great deal of regret that I speak to the Occupational Health and Safety Amendment (Workplace Deaths) Bill. It is an objectionable, flawed and unnecessary bill. The objects of the bill are to amend the Occupational Health and Safety Act 2000 to make it an offence for a person who owes a duty under part 2 of that Act to engage in reckless conduct that causes death at a workplace, and to amend the Criminal Appeal Act 1912 to provide for a right of appeal to the Court of Criminal Appeal where a person has been convicted and sentenced to imprisonment by the Industrial Relations Commission in Court Session for the proposed new offence.

In looking at the outline of the bill, I highlight a number of areas. The new offence of reckless conduct causing death will be created. Prosecutions will be conducted before the New South Wales Industrial Relations Commission. Statutory penalties will be imposed upon directors and managers found guilty of an offence, including fines of $165,000 and/or gaol terms of up to five years for a first offence and subsequent offences. Statutory penalties will be imposed upon corporations to the tune of $1.6 million for a first offence and for subsequent offences, and rights of appeal on convictions may be taken to the New South Wales Court of Criminal Appeal only when a gaol term is involved. A new defence of reasonable excuse will also be created. It is important to bring to the attention of the House the position of the Australian Mines and Metals Association on this bill. It opposes the bill for the following reasons:

Current criminal legislation dealing with the offence of 'manslaughter' already provides a remedy for employers (or other persons) whose acts of 'gross recklessness' cause deaths.

The association joins the Opposition in claiming that the bill is unnecessary and unwarranted. It also points out:

There is no entitlement for offenders to have their case heard by a jury (as is available for the same offence under Victorian OH&S manslaughter legislation) ... The 'place' where an offence can occur extends to 'any place of work'. This means that employers can be liable for a death that occurs in a place of work other than the employer's own workplace.

The association continues:

Members of the NSW Industrial Relations Commission are not criminal judges, nor do they have any background, training or experience in conducting criminal trials or trials that lead to incarceration.

It goes on to say:

Under the Bill, the test for an offence is based upon 'reckless conduct'. This is a much lesser standard than the test for criminal manslaughter which requires an act of 'gross recklessness' to be committed.

The association continues:

Under the Bill, the definition of 'conduct' extends to include 'acts' or 'omissions'. Under this definition liability arises for other than positive acts of recklessness without there being any deliberate intent on the part of the employer.

Under the Bill, a person's conduct 'causes death if it substantially contributes to the death'. The term 'substantial' has been criticised in numerous decisions, in both the Federal Court and the High Court, as being an 'imprecise' and 'not ideal' term to be using in legislation. For example, does 'substantial' mean 'more than the greater part' or 'more than merely insubstantial but not insignificant'?

Under the Bill, the 'standard' by which 'reckless conduct' will be determined is the current standard under the Occupational Health and Safety Act 2000 … (ie the standard here is that of 'must ensure' a risk free workplace).
Under the Bill, there is no definition of 'serious injury', meaning that the NSW Industrial Relations Commission will be able to determine what is a serious injury, not via legislative interpretation, but by factual analysis on a case by case basis. This is again imprecise and leaves too much to the discretion of the NSW Industrial Relations Commission.

Employers First is disturbed by this legislation, and rightly so. It states:

• This latest Bill trebles the monetary penalties for a fatality—even if the risk was minor—and there is no differentiation between penalties for first and previous offenders.

Individuals
Monetary penalty up to $165,000 and/or imprisonment for up to five years.

Corporations
Monetary penalty up to $1.65 m.

• In addition to increasing penalties and adding jail terms, this draft Bill creates a new offence of conduct causing death of any person in the workplace to whom the employer (or certain others) owed a duty to ensure their safety, and where the person who causes the death is reckless as to the danger of death or serious injury to ANY person to whom a duty is owed.

• "Conduct" includes acts or omissions, and the conduct that causes the death need not take place at the workplace (for example, boardroom decisions). The acts or omissions included in "conduct" will inevitably be taken to include the failure to carry out risk management or to do it appropriately, and the failure to provide information instruction and training, etc …

• The Bill is full of qualifying terms which lower the bar as to who might be convicted. It is drafted in a manner that will allow prosecution to go well beyond those whom we might all agree are rogues/cowboys [within certain industries].

o "substantially contributed"—For the conduct to be regarded as causing the death, the prosecution (and this may be a union)—

As the honourable member for Coffs Harbour will tell the House, we know unions will be tearing around in posses hunting down employers to get their 50 per cent of the penalty. The submission continues:

o needs only prove that it "substantially" contributed to the death. "Substantially is well recognised in the law as an imprecise and ambiguous term meaning anything between "not merely minimal" and "considerable, large or big". Consequently you could be convicted even if your conduct was only a partial or incidental contributory cause of death.

O "or serious injury"—the less serious the potential injury, the easier it is for the prosecutor to prove recklessness. Even though the bill is about workplace deaths, recklessness is not to be assessed just in relation to the risk of death but also the risk of serious injury. This too is designed to make conviction easier, especially if the measure of seriousness of an injury will be determined by the IRCCS.

O "any person"—It is the danger of death or serious injury to any person, not explicitly the person who has died. These words extend the range of people in relation to whom recklessness may be established. If you are reckless in relation to any person to whom a duty is owed, you can still be found guilty of conduct substantially contributing to the death of another person. Again, this is designed to make prosecution easier by identifying alleged recklessness in relation to a wider group of employees or other people, which may not even include the deceased.

It may open the vexed question once again of what happens within the corporate culture. Employers First adds:

• How will the IRCCS interpret "substantially contributes to the death" and "reckless"?

Measured against the employers' absolute liability to guarantee perfect safety, zero risk, to risk manage every foreseeable hazard/risk and to eliminate/control them, it will not be difficult for the court to establish these elements. Decisions clearly demonstrate that in the hands of the IRCCS, employers in a wide variety of circumstances will be exposed to jail when that would not be the case with appropriate legislation and a proper court.

• Defences in a Fatality Prosecution

Once WorkCover or the prosecutor has proven the offence, the defendant employer has an additional defence if they can prove there was a reasonable excuse for their conduct. i.e. that their actions were justified given all the facts and circumstances of the incident. Against the backdrop of the current statutory absolute liability for delivering a zero risk workplace and doing everything in the world by way of risk management and given the attitude of the IRCCS judges, that defence will be virtually useless.

• Company director or manager will be able to be charged

Section 26 of the OHS Act which provides that where a corporation is found to have contravened the Act, persons concerned in the management of the corporation will be deemed to have contravened the same provision—does not apply to the new offence. So whilst section 26 is negated where there is a fatality and hence the deemed guilt would disappear, in a "smoke and mirrors" move the government has proposed a new deeming provision. In the Bill each director and each person concerned in the management of the corporation is deemed to have the same duty to ensure perfect safety as the employer corporation. Given that it is impossible for the corporation to meet that standard, deeming these individuals liable for delivering the same standard clearly exposes them to a guilty verdict. It is no improvement on the previous Bill. This is part of the process of manipulating the criminal law to achieve the outcome of exposing employers and their representatives to jail terms.

• Right of Appeal

Appeal rights for employers are still limited under this Bill. A person convicted but not sentenced to jail may appeal only to a full bench of the Commission, so in effect there is no appeal against a monetary penalty. A person sentenced to jail may appeal to the Court of Criminal Appeal, only after first appealing to a full bench of the IRCC.

I agree with the objections of the honourable member for Gosford to the bill. I agree, as all members of the Coalition do, with the basic fundamental importance of human rights. Under the bill fundamental human rights will be denied of employers, supervisors and managers. In the tragic event of a workplace death, the bill does not allow for a presumption of innocence pending proof of guilt. Instead, it effectively assumes the employer is guilty and requires that person to prove his or her innocence. In addition, the employer/supervisor is not afforded a trial by jury and is instead brought before the Industrial Relations Commission, even though under this bill a gaol sentence of five years can be imposed.

Detainees at Guantanamo Bay have more rights than employers, supervisors or managers in New South Wales under this bill. The same detainees are considered enemy combatants and have the right to have their cases heard by a jury of their military peers. Those detainees cannot be given a prison sentence without trial by jury. Those same detainees are also afforded the presumption of innocence until their guilt is proven by a court of law. I agree with the honourable member for Gosford, who said that this is an extreme bill that strips away employers' rights. Section III, article 14, paragraph two of the United Nations International Covenant on Civil and Political Rights states:

Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

Under the bill that fundamental human right is stripped away. I agree with many employer groups and with my colleagues, who say that this bill is unnecessary, onerous and fatally flawed. I ask members of the Government to join with the Coalition to give the bill some sense by accepting the foreshadowed amendments to be moved by the Opposition at the Committee stage. I urge honourable members to support those amendments and not to support the bill in its present form.

Mr ROBERT OAKESHOTT (Port Macquarie) [4.38 p.m.]: I note, as has every other honourable member who has spoken in this debate, that it is a tragedy when a workplace fatality occurs. I share the view of every other honourable member who has spoken in this debate that it is high time that rogue employers were dealt with for allowing unsatisfactory occupational health and safety practices that lead to workplace deaths. However, where I differ—and differ quite significantly—with the Occupational Health and Safety Amendment (Workplace Deaths) Bill is that I think there is a better way of dealing with those rogue employers. From the negotiations and public consultation process that has taken place since the draft bill was circulated in the community, and from what has occurred since the amended bill was presented to this Chamber, I have sensed a very strong feeling among everyone that I have spoken to about this bill.

It relates to what I consider to be the very obvious strategy of the lead union involved in the introduction of this bill, the Construction, Forestry, Mining and Energy Union [CFMEU] and some lead employer groups, such as Australian Business Ltd, Employers First, chambers of commerce and the Government. I would have thought the pre-emptive approach would have been to sit around the table and put together a strategy to deal with rogue employers, rather than bringing before the Parliament a bill that adopts a prescriptive approach to all New South Wales employers. It has become clear to me that the consultation process has not involved the Government sitting down with key agencies and fleshing out ways to deal with rogue employers in New South Wales who are operating in a dangerous way. That process would have allowed the Government and key groups to consider what could be done to deal with those employers, instead of adopting a legislative approach involving employers generally.

What seems to have occurred is that the CFMEU has put forward a bill and the Government has accepted it, and therefore today we are debating an almost blanket prescriptive approach to dealing with workplace deaths. I concur with the comments made by several Opposition members, and I have no problems with their amendments, which I will be supporting. However, as far as a general approach to the bill is concerned, I will be opposing it outright because it is pre-emptive and prescriptive. My constituency is one of home-based businesses and small businesses of fewer than five people. Though I do not believe the bill targets businesses involving family members, we should not be putting in place workplace standards that will affect families that would not place their own lives at risk—and that is 95 per cent of my constituency.
I hope the Government appreciates that is the basis of my opposition to the bill. I hope the Government will favourably consider withdrawing the bill and instead will sit down with the CFMEU and employer groups, such as Australian Business Ltd, Employers First and chambers of commerce, and the many other groups concerned with this legislation, to consider an approach targeting rogue employers. The Minister has said, quite openly, that this legislation is not directed at all New South Wales employers, that it targets but a few. The word "rogue" has been used on many occasions. If the bill really is about targeting the rogue few, why did the Government not set out to target them?

All sorts of issues have been bandied about recently whereby the majority seemingly wear the hit that is intended for the minority. Unfortunately, that is so again with this legislation. I strongly urge the Minister to reconsider his approach. He should sit down with the various agencies and key union involved in a co-operative approach to put together a strategy that actually picks up those who are rogues. Everyone would support and endorse that approach, because we all agree that it is a tragedy when deaths occur in the workplace. I am opposed to this bill because it is pre-emptive and prescriptive, and it will adversely affect many businesses because it tips the balance in occupational health and safety legislation to such an extent that it will become very difficult to do business, particularly for my constituency, which includes a significant proportion of micro small businesses, family-based businesses and home-based businesses operating in regional New South Wales.

I would like to make a point on a related matter, that is, the upcoming occupational health and safety review. I would like to hear from the Minister or his representative in this place what will happen regarding the upcoming broader occupational health and safety review which by statute must occur sometime soon. I will be most concerned if that is some sort of internal, quietly conducted Government review that tends to tick all the boxes, to indicate that occupational health and safety legislation is working well in New South Wales and it is a matter of business as usual. I hope there will be an open and transparent review, independent of government, of occupational health and safety legislation in New South Wales.

Overwhelmingly, New South Wales businesses are saying that the way occupational health and safety legislation has been interpreted by the courts over time has been having a significant adverse impact on business in this State. I am sure that must be of concern to the Government, as it is to the Opposition and to Independent members such as myself. I will be most interested to hear from the Government as to whether it has any plans on how it will conduct that occupational health and safety review. I hope it will be independent, transparent and quite broadly community based in its approach. I look forward to the Government's response on that matter.

Mr ANDREW FRASER (Coffs Harbour) [4.45 p.m.]: As shadow Minister for Small Business, I have spoken to many individual business owners, Australian Business Ltd, the State Chamber of Commerce and any number of employer groups about not only the Occupational Health and Safety Amendment (Workplace Deaths) Bill but the original draft bill that was circulated. Like many others who have spoken in this debate, I represent a community and an electorate whose heart and soul is small business. I will give an example. One of the most basic businesses is the farming enterprise, but particularly a dairy farm. Under occupational health and safety regulations operating at the moment, mum and dad are not allowed to take a child or anyone else into their dairy. They suffer because of that.

In these times of deregulation, when milk prices for producers are low, the labour that had been provided by the family, the next generation of dairy farmers, basically has been barred from the workplace. I suggest to the House that the best way to teach the next generation of dairy farmers to learn about their industry is to have the kids down at the bales early in the mornings and on the weekends. The Government refuses to recognise that any workplace—whether it be the one we are now in, a building site, a dairy farm, a beef cattle farm or an engineering works—is an inherently dangerous place. We need a little less regulation in recognition and acceptance of the fact that all workplaces are inherently dangerous. I would suggest that no employer is out to harm an employee in any way, shape or form.

The bill before the House puts the onus of proof on the employer. If someone is killed in a workplace accident—and I emphasise that we are talking about accidents—the employer is presumed guilty until he or she proves they are innocent before the Industrial Relations Commission. This is not a court of law or jury but the Industrial Relations Commission. Such an employer does not enjoy the normal benefits of the Westminster legal system of the presumption of innocence until proven guilty. Whether for an employee or a person visiting a site, the workplace is inherently dangerous. Recently I was in the Strathfield area and saw an employee on the top floor of a four-storey block of units wearing a safety harness that was dangling. How can the employer be deemed to be responsible for that worker, who obviously was supplied with safety equipment by the employer, knew how it should be used but still worked on the fourth floor of a building with the safety harness dangling in the air?

Under this legislation if that person were to fall off the building the employer automatically would be guilty of an offence until proven innocent. I wonder how forgiving the industrial relations tribunal would be if the Construction, Forestry, Mining and Energy Union [CFMEU] brought the complaint against the employer. The CFMEU could bring the proceedings to the court under a moity. The bill provides penalties of $1,650,000 in the case of a corporation or imprisonment for five years or $165,000, or both, in the case of an individual. How can such an onus be placed on an employer if an employer is absolutely innocent? I have never seen legislation that has so stirred up small business in this State. Since the first draft of the legislation I have travelled across the State and attended seminars conducted by New South Wales Farmers, Australian Business Ltd and chambers of commerce that have written to me and, I presume, other members of this place and the Government about the draconian nature of the legislation. The difference between the legislation we are debating and the draft legislation is minuscule. I suggest that struggling small businesses are exposed to occupational health and safety regulations.

For example, in the Coffs Harbour area one local builder was fined $250 by an overzealous occupational health and safety inspector because a footprint was made outside a work site toilet in wet weather. Another example, which involves the same inspector, relates to a work site where an employee was cutting out noggings for a dwelling. The noggings were coming off the workbench and falling onto the floor, which is the normal practice. However, the employer was fined for allowing the noggings to fall onto the floor when no-one else was working up against the wall. The Government's attitude to small business especially is absolutely deplorable. I wonder what Baulderstone Hornibrook, the builders of the cross-city tunnel, would say about a $1,650,000 fine imposed by the Government if someone were killed in the course of building the tunnel across Sydney, which is a dangerous activity. If my memory serves me correctly, a tragic death occurred while the tunnel was being built. Under the legislation, regardless of precautions taken by the company, the company would be guilty and subject to a fine of $1,650,000.

Mr Tony Stewart: That is simply not true, and you know that.

Mr ANDREW FRASER: It is not true?

Mr Tony Stewart: Tell the truth here today.

Mr ANDREW FRASER: It is not true? The onus of proof is on the employer. The trouble with that lot over there is that they have been sucking up to the unions for too long. They are funded by the unions. Regardless of the fact that the Premier has been pushing Baulderstone Hornibrook so that he could open the tunnel before he resigns at the State conference this weekend, they cannot get it ready. I have a donation sheet of political contributions to the Australian Labor Party, which includes Leighton Holdings Limited, Boral Limited—

Mr Tony Stewart: Point of order: The honourable member is not relating any information that is relevant to the debate. I ask that he be brought back to the debate issues.

Mr ANDREW FRASER: To the point of order—

Mr DEPUTY-SPEAKER: Order! The debate is about occupational health and safety, not donations to political parties.

Mr ANDREW FRASER: I accept your ruling. I wonder if companies such as Leighton Holdings Limited, Boral Limited, Meriton Apartments Pty Ltd, Paynter Dixon Constructions (Australia), AMP Ltd, Lend Lease Management Services Ltd, Australia Hotels Association, Johnson and Johnson Real Estate, Mirvac Group, Transfield Corporate Pty Ltd, Australand, Gosford Quarries Ltd, Better Buildings Pty Ltd, Dyldam Developments Pty Ltd, Loulach Developments Pty Ltd, Merc Projects Pty Ltd, Nassif Excavations, Radray Constructions Pty Ltd —

Mr Tony Stewart: Point of order: We have let this go on far enough. It is ridiculous.

Mr DEPUTY-SPEAKER: I do not know where this is leading, but it is certainly not within the leave of the bill.

Mr Tony Stewart: It is not leading to any argument about the issue. I point out to the honourable member that the bill is based on recklessness causing death—recklessness. That is how the bill treats employers who are reckless. That is a reckless employer. You are not talking about the context of the bill.
Mr DEPUTY-SPEAKER: Order! I call the honourable member for Coffs Harbour back to the leave of the bill. If he has concluded his speech he may resume his seat.

Mr ANDREW FRASER: All those companies would have grave concerns that the legislation holds the employer to be guilty until it proves itself innocent. The onus of proof is on the employer. That is in the legislation. It does not talk about contributory negligence from employees. Define "reckless" for me! What is "reckless"? If the employee at Strathfield, to whom I referred earlier, decided not to attach the hook to his safety harness, how could the employer be found guilty of recklessness? But who will prove that the employee did not have the hook attached if the charge is brought by the CFMEU? All the companies I mentioned are involved in construction and building in New South Wales. I wonder whether the Government consulted any of them before it introduced the legislation. It just so happens that all those companies are on the public record as contributors to the Australian Labor Party prior to the last election.

Mr Tony Stewart: Point of order: Once again I draw your attention to the member straying from the debate. There is a strong definition for "recklessness" within the legislation. It is determined by an employer who is willingly reckless and it is measured by legal argument. That is the way it occurs.

Mr DEPUTY-SPEAKER: Order! If the honourable member for Coffs Harbour has concluded his speech in relation to the bill he can resume his seat. If he wishes to continue and confine his remarks to the leave of the bill he may do so.

Mr ANDREW FRASER: I believe I am within the leave of the bill. I am asking questions as to whether those companies, Leighton Holdings or any of the others, have been consulted about the legislation. If they have been consulted the honourable member for Bankstown should tell us. I do not believe any of those employers would agree with the legislation. I have no doubt that the CFMEU and the union mates of members opposite definitely would be in there. As the honourable member for Gosford said, the Crimes Act provides 25 years for manslaughter if an employer is negligent. When one considers that 50 per cent of the $1.6 million penalty for a charge brought by the CFMEU goes to the union, one would have to ask seriously and honestly where the idea for the legislation came from.

The legislation is not in the interests of industry in this State. People are driving to Queensland to get out of the most overregulated State in Australia. The Business Council of Australia report, which was released on Monday week ago, highlights that for the past decade this Government has produced 300 pages of legislation and regulation every week. That is what is driving business out of the State. That is what is forcing up the cost of business in this State. That is why every time these types of bills are introduced Beattie claps his hands with glee. Death by negligence and manslaughter are covered in the Crimes Act, and those prosecuted under the Crimes Act have an opportunity to be judged by a jury of their peers. Charges brought under this legislation will be heard by an industrial relations tribunal, which will be weighted heavily in favour of the employee. The bill contains nothing about contributory negligence.

I could continue for some time and refer to the number of people who are killed in the timber industry and on building sites in the construction industry, which are dangerous industries. On many of those occasions I suggest that contributory negligence was a factor. But under this legislation it is up to the employer to try to prove that and I do not believe they can. It is no wonder the Premier is trying to beat up John Howard about the industrial relations legislation that will be introduced after July. Maybe it will put some faith back into business in this State. On behalf of all business—small business, farmers, Australian Business Ltd, chambers of commerce, members and non-members who are so fearful of the legislation—I ask the Government to reconsider the legislation and ask the donors to the Australian Labor Party whether they really want this legislation.

Mr ANDREW STONER (Oxley—Leader of The Nationals) [4.59 p.m.]: The Occupational Health and Safety Amendment (Workplace Deaths) Bill is the culmination of a typical Labor three-card trick in which the Labor Party goes out hard with an Armageddon type of proposal, concedes a little bit of ground, and in so doing convinces people that somehow Labor has had a win. This bill does not represent a win. It is a continuation of Labor's anti-business, anti-farmer socialist agenda that is driven by the trade unions that are struggling to achieve relevance in the modern world. Thanks to the Federal Nationals-Liberal Coalition Government, real wages in Australia are now 14 per cent higher than when Labor was last in government federally, so the unions make an ambit bid for relevance. As usual, the Premier gives in, and this bill is the outcome of that process.
I should note that this bill allows for 50 per cent of fines to be paid to the union that brings a prosecution, which could be $825,000. Of course the trade union movement funds the Labor Party, so it is quite possible that fines under this bill could find their way back to the Labor Party whose members comprise the government that has introduced this bill. Despite this bill being better than the scorched earth exposure draft bill, it is still not good enough and will send many businesses packing to other States. It will also drive drought-stricken farmers to the wall. It is not possible to guarantee that a tragic accident will never occur, especially in rural industries, such as the cattle and timber industries, or on farms. Whether actions constitute reckless conduct or not will become the subject of costly legal debate which, by virtue of this bill, will bankrupt most small businesses and farmers.

Employers can do all the right things—and heaven knows that WorkCover is all over employers like a rash—but they cannot stop an employee going against their training and all the rules; nor can they stop, for example, an armed robber shooting someone. Employers may do their best, but sometimes the responsibility for an accident will lie elsewhere. Labor and the unions do not accept that, so they are victimising employers in this State by attributing all responsibility to them, irrespective of the circumstances. Labor and the unions do not understand that 99.9 per cent of employers are concerned about the wellbeing of their workers and will do all they can to look after their workers, nor do they understand that the Crimes Act and the current WorkCover system are in place to control the careless or reckless minority.

This bill is grossly unfair, not only in respect of the issue of responsibility that harks back to the flaws in the 2004 bill, but because it denies a trial by jury for an offence that attracts a sentence of imprisonment. This bill provides the Industrial Relations Commission alone with power to gaol employers in the event of a workplace fatality and denies a trial by a jury of peers. In effect, this bill represents a denial of the principles of natural justice. For all the reasons I have stated, including the economic impact on the already lagging employment and economic growth performance of this State, The Nationals will oppose the bill.

Mr PETER DRAPER (Tamworth) [5.02 p.m.]: I welcome the concessions that the New South Wales Minister for Commerce, the Hon. John Della Bosca, has made in introducing the Occupational Health and Safety Amendment (Workplace Deaths) Bill. The Minister's reconsideration of the flawed Occupational Health and Safety Legislation Amendment (Workplace Fatalities) Bill and its replacement with a revised, more targeted piece of legislation demonstrates that the Government is willing to listen. It also demonstrates, however, that it is critical for community members to assess on merit proposed legislation which stands to affect them and not to be swayed into acceptance by the Government's use of rhetoric.

In the recent second reading speech of this new Occupational Health and Safety Amendment (Workplace Deaths) Bill, the Minister for Mineral Resources Kerry Hickey, stated that the vast majority of employers have nothing to fear from this new provision. Disturbingly, the Hon. John Della Bosca, in his ministerial statement on the now-defunct draft workplace fatalities bill, gave the same assurance stating that hardworking, responsible employers have nothing to fear from this bill. He went on to say that the 2004 bill was aimed at a minority—"the rogues whose indifference to health and safety … results in death". Who are these rogues? Have Australian Business Ltd , Employers First and other representative groups sat down with the Government to identify the rogues? What is being done to target the rogues?

The rhetoric was what employers wanted to hear, but the Minister got it wrong on the first occasion. Hardworking responsible employers from my electorate indicated to me that they had plenty to fear from the original legislation as it was not in fact targeted at rogue employers: rather, the bill lumped all employers together, regardless of their safety record, and made them for the first time subject to gaol terms and hefty fines. The Minister admitted that he missed the mark by withdrawing the original legislation and introducing a revised version, the Occupational Health and Safety Amendment (Workplace Deaths) Bill. This bill appears to be aimed squarely at those who need to be brought to justice—rogue employers.

However, with the same assurances given on the first flawed bill now being applied to its successor, it is hard to be assured that employers' fears have been allayed. An industry lobby group, Australian Business Ltd, seems to have been convinced. I believe that on this occasion the tightening of the legislation and its more targeted approach to irresponsible employers are acceptable. ABL credited Tamworth as the turning point in the campaign to make the legislation fair and workable for responsible employers. The meeting I convened in Tamworth, which attracted 300 people, was the first major rally of a number which rolled out across the State, attracting thousands of employers, farmers and concerned citizens. The Tamworth meeting was preceded by a gathering organised by the Gunnedah and District Development Board that attracted 50 people and provided the inspiration to hold the larger, more comprehensive public forum in Tamworth.
I pay tribute to the President of the Gunnedah and District Development Board, Mick Brockman, and executive officer, Anne Sims, for having the foresight and the vision to conduct the very first meeting of its kind in this State. I also received hundreds of letters from concerned employers, business people, farmers, community organisations, lobby groups and community members opposing the legislation and I forwarded them to the Minister for consideration. I am proud of the fact that the Tamworth electorate is such a proactive community and that it made such a worthy and effective contribution to the debate on this legislation. In March this year figures were released that showed that work-related fatalities and employment injuries had dropped to their lowest levels in 15 years, with fatal injuries in the workplace having decreased by almost 33 per cent. I believe this reflects the fact that the vast majority of employers take occupational health and safety laws very seriously—so seriously that some have considered exiting their industry simply because they feel that compliance with the Occupational Health and Safety Act regulations is beyond their reach.

The threat of gaol terms and enormous fines in the unfortunate circumstance of a death in the workplace seemed to be the final straw for many. At least now if the welfare of workers is regarded first and foremost in their conduct, when there is a fatal accident employers will not face the prospect of being prosecuted as a rogue with no recourse for appeal. Commonsense has been applied and employers, controllers of work premises, directors, managers and employees will not face gaol or fines unless their behaviour is demonstrably reckless and indifferent in regard to safety of the victim. The fact remains that the Occupational Health and Safety Act remains a thorn in the side of the business and farming communities. Farmers in particular face considerable challenges in complying with the Occupational Health and Safety regulations as they require farmers to remove 100 per cent of the risk of an accident from their farms.

By virtue of the way that a farming workplace is structured, this is impossible and is placing unnecessary stress on farmers who are baulking at employing workers. The absence of employees seems to be the only way of guaranteeing that an accident involving an employee will not occur. An employee's actions are a factor in any accident, and it is therefore unreasonable and impossible for employers of any kind to guarantee their safety 100 per cent. I look forward to contributing to a review of the Occupational Health and Safety Act, which I believe will take place later this year. In the meantime I commend the Minister for listening to the concerns of business groups, farmers and others, and for amending what was a flawed piece of legislation.

Mr IAN ARMSTRONG (Lachlan) [5.07 p.m.]: It is not with pleasure that I join in debate on this highly controversial legislation that unfortunately will occupy the time of lawyers and members of Parliament at some time in the future. It is a fact of life that there will always be accidents in the workplace, as there are in the home or in any other premises that people occupy from time to time. There is no such thing as a utopian workplace where people simply will not be injured. There is no such thing as an accident in a workplace that does not involve a certain amount of contributory negligence on behalf of one or other of the parties, and often on behalf of both parties.

As several speakers have outlined aspects of the Occupational Health and Safety Amendment (Workplace Deaths) Bill in some detail, it is fair to ask a very simple question: What is the definition of "reckless"? Research on debates in this Parliament in which the term "reckless" was discussed and recourse to dictionaries reveal that there are many definitions of the term, but the simple fact is that I am one of few members of this Parliament to have employed large numbers of people and to have been employed in dangerous situations. I have been employed in shearing sheds and as a farmer.

Mr Gerard Martin: And as a member of The Nationals.

Mr IAN ARMSTRONG: I have also been opposed by the Labor Party—although I must say that that was never particularly dangerous. I understand the responsibilities that are placed on an employer. I understand also that since this legislation was announced, some eight or nine months ago, I have received the biggest lobby for many years from employers and the broader community regarding the impact of the legislation. Simply, the legislation provides that if a person asks a man or a woman to mount a horse and ride down the paddock to muster cattle, and he or she comes to grief by falling off the horse, that person may be charged with being reckless.

Mr Tony Stewart: No, it does not. You are a smart operator, you have been around for 100 years. Recklessness is tested very clearly in legislation, but it is not defined in the bill because it has already been defined in common law.

Mr DEPUTY-SPEAKER: Is the honourable member for Bankstown taking a point of order?
Mr Tony Stewart: No, I am trying to guide the member, because he has obviously gone down a stray track.

Mr DEPUTY-SPEAKER: I draw the attention of the honourable member for Lachlan to the subject matter of the debate.

Mr IAN ARMSTRONG: I was quite happy to let the Parliamentary Secretary continue because clearly he is totally unaware of a case involving McLaughlin.

Mr DEPUTY-SPEAKER: That is an assumption on your part.

Mr IAN ARMSTRONG: Yes, it is, but he let himself into it. About five years ago, a case was brought involving the McLaughlins and the death of a Mr Croker. That case concerned a young employee, Mr Croker, who had worked for them for 18 months. McLaughlins asked Croker get on a horse and ride into the paddock to muster some cattle. Croker came off the horse and was killed. That was very sad; I know his parents and his family quite well. I also know the McLaughlins quite well. Yet, because of the meaning of "recklessness" the legal advice to them was, probably quite correctly, to plead guilty, which they did. In the past 12 months the McLaughlins pleaded guilty and were substantially fined.

Mr Tony Stewart: Heedless and careless conduct, is that what you are saying?

Mr IAN ARMSTRONG: No. We are talking about recklessness, which you wanted to debate a few seconds ago. I have given you an answer and you cannot get around that because the law found that what I am saying is correct.

Mr Tony Stewart: It is what the common law describes, careless conduct.

Mr IAN ARMSTRONG: Settle down, you might learn something. You cannot listen and talk at the same time, you are not that smart. The bottom line is that unless legislation is workable, practical and capable of being implemented, and unless society is capable of working within the framework of that legislation, it is flawed. Unless employers and employees can work with confidence and trust in each other we will be doing both parties a disservice by passing legislation that will inhibit employment and a good relationship between employer and employee. There has to be trust. What qualifications are necessary for an employer to not have to face the possibility of having to prove that he was not reckless? If I employ someone to ride a horse to muster sheep or cattle and, heaven forbid, there is an accident, how can I justify before a court that I was capable of ascertaining whether the person was capable of riding a horse, and, further, that I was qualified to do so? I do not have any qualifications at all to train someone to ride a horse.

Mr Gerard Martin: That is patently obvious.

Mr IAN ARMSTRONG: I have far more qualifications that you have, my good friend. Although one might have experience, that is not good enough in the eyes of the law—experience was the defence put forward by the McLaughlins. That very simple and transparent case was decided, and the word "recklessness" was useless.

Mr Tony Stewart: That was not prosecuted under the current provisions. You are off the track, it was not prosecuted under this bill.

Mr IAN ARMSTRONG: The Parliamentary Secretary is a bit thick. He does not understand that we are talking about the word "reckless", not about legislation. It was his Government that put the word "reckless" in the legislation. I am very conscious that this debate is about the word "reckless". Is a house owner reckless if he asks someone to climb onto the roof of his house to paint it? Is a farmer reckless if he asks someone to drive a tractor? Is a person reckless if he asks someone to start a stationary engine with a crank handle? Those sorts of things occur every day in the workplace. Is a person reckless if he asks someone to brand calves? In each example I have given it will be necessary to have training; the employer will have to be able to demonstrate that he or she has enough training to be able to assess whether the workplace is comfortable and whether the workperson, the term that is to be used, is competent and capable and has the necessary training to perform the required duty.

It is almost impossible to comply with the criteria in most workplaces, particularly in the rural sector. Recently a builder asked me what he first had to do to jackhammer an old cement veranda off a house and build a new veranda. I said he had to find someone to assess whether he can use a jackhammer. He told me that blokes who work for him can use a jackhammer without a minute's training. A jackhammer is pretty dangerous in the wrong hands and there are plenty of fellows who have used them for years without any training. My point is: although I understand the principle of the legislation, it will lead to very messy court cases in the future which will occupy the minds of barristers and Queen's Counsel for a long time and will empty the pockets of many people. At the end of the day, we will still not have any clear definition of the word "reckless". Nor will we have any clear approach on how there can be confidence and trust between employer and employee in performing required duties with required basic responsibilities that are sensible, practicable and workable.

Mr RICHARD TORBAY (Northern Tablelands) [5.16 p.m.]: The honourable member for Tamworth pointed out that after community consultation on the draft bill a range of concerns were raised, particularly in regional areas. The honourable member for Lachlan said he had received significant lobbying concerning this bill, and that was certainly the case in the New England area. I clearly remember that at the first forum called by the honourable member for Tamworth a significant number of people attended to debate their concerns with the draft proposals. That forum was followed by a similar meeting in the Northern Tablelands, based in Armidale. A full town hall on a Monday morning sent a message to me about the concerns in my electorate, and that meeting mirrored the massive number of people who attended the two rallies held in the electorate of Tamworth. The honourable member for Tamworth was the first member to make sure that his community was well informed. He made sure that his community's concerns were put to the Minister.

In the feedback I have received from my community it was clear that employers in particular support safe work practices and safe workplaces. It was suggested that employers were trying to cop out of providing safe workplaces. I want to get that furphy out of the debate: they were not. Most importantly, the employers told me that they supported good, fair and proper conditions for their employees. However, they were concerned that under the original draft legislation an employer who is unfortunate enough to be held responsible for a fatality in the workplace would be deemed guilty until proven innocent. That concern clearly came through the forum that I hosted in Armidale and the enormous number of representations that I have received. The Minister indicated right from the outset that those draft reforms were open to consultation. The Minister said that he would take on board those concerns and would come up with a draft bill, and that is what we are debating today.

As the honourable member for Tamworth said, in many cases the Minister listened to the concerns that were expressed. I oppose the bill on the following grounds. In my view so many changes have been made to the bill that it is no longer relevant. The Minister pointed out that the current Act is subject to review at a future time. It is worthy of review because of the impact that it has had since its inception. All those issues could be dealt with as a result of such a review. The legislation that originally targeted employers, unfairly in my view, has been modified to such an extent that it is no longer required. As I said earlier, any review in the future would resolve those issues. I call for a review of this legislation because some important issues have not been considered. Previous amendments to this legislation occurred in the heat of debate on insurance premiums.

All honourable members would remember the concern that was expressed at that time. It is important to maintain cool heads. We must not marginalise responsible employers. If employers are reckless the penalties that exist in this legislation should be imposed. I am sure that all responsible employers would expect that to occur. Members of the community want commonsense to prevail and they want to ensure we have safe workplaces. If they do everything they possibly can to reduce fatalities in the workplace it should not impact on their lives and their businesses. The Minister listened to many of the concerns that were expressed in relation to this watered down bill but I suggest that it is no long warranted. A subsequent review of existing legislation should address all the concerns that have been raised. I oppose the bill.

Mr THOMAS GEORGE (Lismore) [5.20 p.m.]: Tonight I refer to the concerns that have been expressed in relation to the Occupational Health and Safety Amendment (Workplace Deaths) Bill by the majority of small businesses, primary producers and major businesses in my electorate. This bill was introduced despite current statistics that show falling injury and fatality rates in New South Wales. This bill increases penalties for occupational health and safety offences and proposes gaol sentences for first offenders. Fines of up to $165,000 will be imposed on directors and managers and fines of up to $1.65 million will be imposed on companies.

Trade unions will be entitled to 50 per cent of any fine that is imposed. The bill reverses the onus of proof that a company is guilty until proven innocent. The bill would permit right of entry to union officials and enable workplace death charges to be laid against any employer or manager. When the original legislation was being debated in 2004 a letter appeared in the Northern Star the day before a seminar was to be held in Lismore. That letter states:

Regardless of the scare campaign fanned by Lismore MP Thomas George, local businesses have nothing to fear from occupational health and safety laws.

I am currently consulting businesses and unions about a draft Bill designed to target the very small minority of employers whose disregard of basic safety measures results in the death of employees.

The draft Bill contains no new duties for employers and no new offences. It does, however, introduce an avenue of appeal beyond the Industrial Relations Commission.

It does not suggest businesses are guilty until proven innocent. A prosecutor has to prove a breach of workplace safety laws to the criminal standard of proof, that is, beyond reasonable doubt.

While the court may award half the fine to the prosecutor, this has been a feature of New South Wales general criminal law since 1901 and the draft Bill does not change this.

The draft Bill has not been introduced in State Parliament and won't be in its current form.

Many employers and unions have made sensible, constructive suggestions, and I am continuing to consult about the best way to resolve these important issues.

During months of consultation I have not yet spoken to an employer who has argued that rogue employers who cause the death of vulnerable workers should not be the subject of the full force of the law.

JOHN DELLA BOSCA
NSW Minister for Commerce

The next day the bill was withdrawn, even though it was alleged that I was promoting a scare campaign in the small business community. I organised a meeting in Lismore because of the concerns expressed by small businesses, owners, producers and major business owners. I wrote to the local paper and challenged the Minister, who has not had the decency to respond to my allegations. As a former employer I agree with the Minister on one point. Rogue employers who cause workplace deaths should be subject to the full force of the law. This Government is treating every employer in New South Wales as a criminal.

Mr Tony Stewart: That is not true.

Mr THOMAS GEORGE: The Government should tell that to employers. How many people has the honourable member employed?

Mr Tony Stewart: They support the bill.

Mr THOMAS GEORGE: Employers do not support this bill. The Government does not have the support of employers. I agree that rogue employers should be prosecuted but we do not need this legislation to do that. The honourable member for Northern Tablelands said earlier that this bill is not required. Rogue employers can be prosecuted as a result of changes to the Occupational Health and Safety Act. This bill should be ripped up and discarded. We do not need it. If the Government comprehensively changes the Occupational Health and Safety Act it will resolve those problems. This legislation is designed to target all employers.

The Government is treating all employers as criminals. It is imposing fines on small employers, primary producers, dairy farmers, rural producers and major employers in this State. The Government does not need this legislation; it should be ripped up and thrown away. If the Government wants to prosecute rogue employers it should just amend the Occupational Health and Safety Act. The shadow Minister, the honourable member for Gosford, highlighted the Opposition's concerns and foreshadowed that he would be moving amendments in Committee.

Mrs DAWN FARDELL (Dubbo) [5.29 p.m.]: I oppose the Occupational Health and Safety Amendment (Workplace Deaths) Bill. I agree with some of the comments made earlier by the honourable member for Lismore. A rally was organised in the Dubbo area and a forum was held at the RSL club. A couple of hundred people gave up time that they could ill afford on a Monday morning to attend that forum. Workers and farmers expressed grave concerns about their future if this legislation is passed. I realise that this legislation has been modified but it is still not strong enough to address concerns and to support people in my electorate and in other electorates in New South Wales.

The farmers have enough to deal with during this time of drought without the possibility of losing everything they have worked for. Many successful small business people in my electorate have worked since the ages of 11 or 12—they took their bags of cement, their wheelbarrows and shovels and built successful businesses from the ground up. Plumbers and electricians, who have not had an extensive education, must now follow stiff regulations and are fined if they put a foot wrong. One electrician from Narromine asked me, "How do you stop the idiot factor?" Employers can try to be prepared, have the rules and regulations in place and train their staff and apprentices but the idiot factor can bring all they have worked for tumbling down.

I certainly cannot support the bill. I have listened long and hard to my electors, who asked me to speak in this debate and express their concerns. I agree with the honourable member for Lismore in calling for a review of existing legislation. There will always be rogue employers. I mentioned the problem of skills shortages in a recent private member's statement. We are overregulating—take the arbitrary points system, for example. Many in the business community do not have time to take morning coffee or lunch breaks—they do not have the same luxuries that members of Parliament enjoy. They do not have time to tally up hours and achieve so-called "certificates". I believe every person who has been in business successfully for five years should receive 100 points. Points could then be deducted from employers who do the wrong thing and they would then have to complete a course to have their points restored. The system would be similar to that which operates for drivers, who lose points from their licence when they are convicted of driving under the influence of alcohol, speeding or any other traffic offence. That is a most logical, sensible system. The idea was suggested by some hardworking tradesmen in my electorate.

Many tradesmen, particularly those who have reached 50 years of age, are not renewing their trade licences. They have the relevant skills and do not see the point in sitting skills tests. For example, a couple of illiterate tradesmen failed the exams that certified them to drive loaders—although they had been driving them for 30 or 40 years! Are we really looking after those people whom we purport to protect? I do not agree with the bill and I recommend a total review of the system. I accept that the legislation has been watered down, but not enough. I believe we should knock it on the head now. The system must be reviewed, and I am happy to serve on that review committee.

Mr STEVEN PRINGLE (Hawkesbury) [5.32 p.m.]: I join my Opposition colleagues and many other members in the Chamber in opposing the Occupational Health and Safety Amendment (Workplace Deaths) Bill. I ask, yet again, the fundamental question: What is the rush? A comprehensive review of the Occupational Health and Safety Act will be conducted towards the end of this year, so surely the introduction of the bill should have been delayed until then. I hope that that review will examine some overseas practice. What are they doing in Canada or the United Kingdom? Perhaps we might consider working co-operatively with employers for once. We need every employer in this State. New South Wales has the lowest growth rate of any State in Australia so every employer and every tradesman is important. As the honourable member for Dubbo said, we must encourage tradesmen to remain in their industries. We do not want them to leave because they are completely and utterly terrified of what this legislation could do to them and their families. That is a most important point: This legislation could cause major problems for employers and their families.

Boards of voluntary directors are particularly concerned that they could be held liable—and possibly gaoled—for actions that are beyond their direct control. We know that the old draft bill terrified employers absolutely and prompted protests around the country. I am sure I speak for many Opposition members when I say that the two biggest issues of the past 12 months were land tax and the former bill. The current bill does little to address the problems that were so evident in the draft bill. Those problems centre on the denial of the right to trial by jury—a fundamental 700-year-old right. The bill will affect not just employers but team leaders, site supervisors and others who are deemed to be in positions of authority on work sites.

My electorate, like those of many members who have spoken in this debate, is characterised by small business, including small farms. There are many mushroom growers in Hawkesbury, and the Australian Mushroom Growers Association has expressed particular concern about this and the former bill. The association points out that, even with the most careful and rigorous workplace risk management, it is simply not possible to guarantee a 100 per cent risk-free environment. That is a key point. How can businesses ever be absolutely risk free? That standard is not practical—indeed, this bill ignores many of the practicalities that employers face every day at work. A builder in my electorate who employs 30-odd people told me recently that he heads to work every day literally petrified that someone will be hurt in the workplace. He has taken every precaution possible but he is afraid that his business will go bankrupt and his family home will be on the line because of legislation such as this.

How will a nurseryman, for example, guarantee a 100 per cent risk-free environment for his employees? A nursery owner told me recently that one of his employees had killed a snake. It was an endangered species so he should not have done so, but if that employee had been bitten and killed his employer would be deemed not to have provided a safe workplace.
Mr Peter Draper: What about farms?

Mr STEVEN PRINGLE: Exactly. How will that nurseryman provide a 100 per cent safe work environment? He cannot. He said that he is no longer interested in working in the industry and plans to sell up and get out. The drought and the Government's failure to provide an adequate water supply to much of the Hawkesbury and the State as a whole have caused further hardship. This bill is not necessary. I urge the Government to wait for the review that will occur at the end the year. But, if this bill is to be forced upon us, it must contain the right to trial by jury, which is a fundamental right that every New South Welshman expects to have.

Mr DAVID BARR (Manly) [5.38 p.m.]: I represent many businesses and workers in Manly, but no farmers—we have no farmers in Manly. I certainly would have opposed the previous legislation because of its reverse onus and lack of defences. It was far too onerous for employers. The Occupational Health and Safety Amendment (Workplace Deaths) Bill is a different kettle of fish. I will wait to see the amendments that the Opposition intends to move in Committee, but I have heard a fair bit of codswallop in today's debate. We must never forget that death in the workplace is totally unacceptable. It is not acceptable for people to die at work, and it is the duty of businesses and the Government to ensure that there is an adequate occupational health and safety system and that workplaces are safe.

Under this legislation it is proposed that a person whose conduct causes the death of another person at any place of work, and who owes a duty under the Occupational Health and Safety Act with respect to the health or safety of that person engaged in that conduct, and who is reckless—there seems to be a lot of play on the word "reckless"—as to the danger of death or serious injury to any person to whom that duty is owed, is guilty of an offence. That duty is owed by employers, the self-employed and various other persons. What constitutes recklessness? The Minister for Mineral Resources, in giving the second reading speech on the bill, said:

"Recklessness" has been defined as heedless or careless conduct where the person can foresee some probable or possible harmful consequence but nevertheless decides to continue with those actions with an indifference to, or disregard of, the consequences."

The thrust of this legislation is a reckless indifference as to the safety or otherwise of employees. Anyone who is recklessly indifferent as to the safety or otherwise of employees has a responsibility if an employee is injured or killed. The issue is whether the employer is recklessly indifferent as to the safety of the workplace. The bill provides for a defence of reasonable excuse. Another speaker referred to someone being bitten by a snake and dying. That is a furphy. The issue is whether there is a safe place at work. If there is not and, unfortunately, an injury or fatality occurs, how does one use the provision of statutes to reach those persons who are responsible for the lack of safety of the workplace without doing damage to those who are not responsible?

If an employer is recklessly indifferent as to the safety of an employee the burden should fall on that employer. That is what honourable members should address in this debate. It is nonsense and codswallop to suggest that if a snake on a farm bit a worker and that worker died, the farmer would be liable. I wait to see the Opposition's amendments, which I hope are better and more intellectually rigorous than arguments such as that. People must not die at work and, as legislators, it is our responsibility to make sure we put in place a statutory system that ensures that as few people as possible are killed or injured at work. We must ensure that employers who are recklessly indifferent to the wellbeing of their employees suffer the consequences. Under the principal Act directors, voluntary board members and others are not liable for the actions of the corporation but they may be liable for their personal actions. I put that furphy to rest as well. I am curious about the Opposition's amendments, but I have not been persuaded by its arguments—and I have not been persuaded by parts of the arguments from the Government side either. Death at work is a serious issue.

Mr ANDREW CONSTANCE (Bega) [5.42 p.m.]: I oppose the bill, primarily because in the past six months the timber, fishing and dairy industries in my community have expressed their concern about the occupational health and safety measures of the Government. The main aspects of the bill are the creation of a new offence, reckless conduct causing death. Prosecutions will be conducted before the Industrial Relations Commission without trial by jury, and statutory penalties that may be imposed upon directors and managers found guilty of an offence include a maximum fine of $165,000 and/or a gaol term of up to five years for the first and subsequent offences.

It is abhorrent to deny a trial by jury to anyone who can be sent to prison for up to five years. Any such person should be entitled, under common law, to a trial by jury. The bill does not provide for that, and that is where it falls over. By introducing this bill the Government is denying a fundamental 700-year-old right to every foreman, team leader or site supervisor. The Opposition foreshadows that it will move amendments in Committee to remedy that. Under the bill unions will continue to be allowed to prosecute an employer. That will encourage bounty hunting. I have no doubt that this bill denies natural justice. An alleged murderer has a right to a trial by jury and the same right should apply to those charged in relation to workplace fatalities. I do not believe judges of the Industrial Relations Commission are well placed to provide what, in essence, should be a criminal prosecution. That fact is lost on the Government and on the honourable member for Manly. That is why the Opposition will move amendments to the bill.

All legislation should encourage the employment of staff and the growing of businesses, particularly in the agriculture sector. The bill will not achieve that objective. The timber and fishing industries, dairy farmers and chambers of commerce in regional areas have expressed concern about the intent of the bill. They are still concerned with this watered-down legislation. The bill contains many qualifying terms which lower the bar as to who might or might not be convicted. In some ways, the bill will allow the prosecution to go well beyond those whom we might all agree would be regarded as rogues or cowboys in the industry. All honourable members acknowledge that the timber and fishing industries and farming communities are high risk. The bill contains ambiguous terms. The Government is yet to clarify what "recklessness" means in relation to a prosecution. The New South Wales Farmers Association and industries want greater clarification, but the Government refuses to clarify that term.

Mr Thomas George: Trust them!

Mr ANDREW CONSTANCE: As the honourable member for Lismore has pointed out, Government members ask us to trust them. That is not acceptable. This is bad legislation and the House should not pass it. The Government has indicated that the legislation will be reviewed. The Opposition will read the review and consult appropriately about it. The Government has achieved an "F" for failure in relation to consultation on this bill. It has failed to consult with those businesses upon which the bill will have a direct impact, particularly, those high-risk businesses where, unfortunately, deaths occur in the workplace. Unfortunately, deaths will continue to occur in those businesses forever and a day. The bill will encourage employers in their late sixties who have been involved in industry all their lives—timber contractors and the like—to walk away from their businesses. The jobs for employees will disappear.

The true test of this bill as it relates to regional New South Wales is whether it will generate employment? The answer is, probably not. It is high time the Government went beyond the Sydney basin to find out what businesses in regional New South Wales are saying about this issue. There has not been appropriate consultation on the bill. We acknowledge that it has been watered down. The two key concerns of the Opposition are, first, the denial of a trial by jury and, second, the fact that unions will continue to be allowed to act as bounty hunters in the industry. Therefore, the Opposition will oppose the bill. I look forward to supporting the Opposition amendments foreshadowed by the shadow Minister.

Mrs JUDY HOPWOOD (Hornsby) [5.49 p.m.]: I indicate at the outset that the Opposition will oppose the Occupational Health and Safety Amendment (Workplace Deaths) Bill. The objects of the bill are, first, to amend the Occupational Health and Safety Act 2000 to make it an offence for a person who owes a duty under part 2 of the Act to engage in reckless conduct that causes death at a workplace and, second, to amend the Criminal Appeal Act 1912 to provide for a right of appeal to the Court of Criminal Appeal where a person has been convicted and sentenced to imprisonment by the Industrial Relations Commission in Court Session for the proposed new offence.

Proposed section 32A provides that a person (a) whose conduct causes the death of another person at any place of work, and (b) who owes a duty under part 2 of the Occupational Health and Safety Act with respect to the health or safety of that person when engaging in that conduct, and (c) who is reckless as to the danger of death or serious injury to any person to whom that duty is owed that arises from that conduct, is guilty of an offence. The proposed offence will carry a maximum penalty of $1.65 million in the case of a corporation or imprisonment or five years or $165,000, or both, in the case of an individual.

I, too, represent many businesses, small and large, and I, too, consulted widely and received considerable feedback on the initial workplace fatalities legislation, and now this watered-down workplace deaths legislation. I concur, as would every member of this House, that death or serious injury in a workplace is a very serious matter and would be so regarded by any existing legislation and those in authority who consider what should be done to ensure the safety of employees and employers. I take this opportunity to place on record my congratulations to Greg Bepper, President of the Hornsby Chamber of Commerce. He and I arranged a forum to debate the original workplace fatalities legislation in the Greater Union facility at Hornsby. The forum was attended by representatives of business across the board. The honourable member for Gosford addressed the gathering, as did a representative of the State Chamber of Commerce. It was a very successful evening.

The message from that gathering was loud and clear: businesses want to keep employees safe and conduct their daily operations with that in mind. They do not wantonly create situations where employees and visitors are not safe in workplaces. The feedback from employers and managers at the forum was that they support workplace safety and safe workplaces for employees. Everyone acknowledged, as has been mentioned, that it is just impossible to provide workplaces that are totally hazard free for 100 per cent of the time.

It is worth noting that existing legislation covers the main intent of the bill before the House. Questions need to be asked about the need to rush this legislation through. First, we should have the statutory review of occupational health and safety legislation, then consider what else needs to be done. I have been approached by a number of voluntary board members who are gravely concerned about the impact of this legislation on them. One of the voluntary organisations, which provides transport services in the Hornsby and Ku-ring-gai area, is seriously considering not providing any sort of service to the community should any bills such as this become part of the State's legislation. I would like to quote from a press release by Ken Phillips, under the auspice of the Institute of Public Affairs, entitled "Guilty until proved innocent". It is dated Tuesday 23 November 2004, and says, in part:

Most people think that if they did something that led to the injury or death of a person and they were charged by the police with the prospect of going to jail, that normal criminal justice processes would apply, but this is not the case in NSW.

In 2000, the Carr government introduced laws that stripped away full rights to normal justice and now they want to go further. …

Under the existing NSW arrangements if there is an accident at a worksite managers or executives of firms are charged in the industrial court and they are presumed guilty until proved otherwise. Incredibly, they have to prove they are innocent. They can be charged with the same offence a second time even if found innocent at a first trial. If found guilty, and another accident occurs several years later, they can face the prospect of jail.

In October the Carr government introduced an amendment, the Workplace Fatalities Bill, which would mean that if a death occurs on a worksite, jail is an immediate prospect. Rights of appeal to the criminal justice system are restricted.

The Carr government says this is to catch "rogue employers", but the experience of litigation under the present law suggests something else. …

Presumption of innocence and trial by jury in courts that are experienced and competent in criminal matters are key pillars of a fair, just and equitable society ...

This approach to jailing people without the normal protection of criminal justice has come following pressure from the union movement. It seems to be an approach to law based on an eye for an eye rather than community principles of justice.

In another press release, of Tuesday 12 April 2005, entitled "Work Safety Laws are one-sided and unjust", Ken Phillips said:

How is it that New South Wales work safety laws arguably breach human rights principles and international work safety obligations, and of the other states?

On 26th March this year Australia's occupational health and safety obligations under International Labour Organisation Convention 155 came into effect. Australia's ratification of C155 requires that our OHS laws impose obligations on parties at work given what each person controls, judged by what is reasonably practicable to do. …

NSW breaches international obligations. The NSW Occupational Health and Safety Act 2000 holds employers and independent contractors guilty of OHS offences whether they controlled a situation or not. The fact of an OHS breach occurring causes guilt to be applied. If a company is held to be guilty the managers are automatically held to be guilty. Judgment of what was 'reasonably practicable' is contorted by being limited to defence against preordained guilt. Innocent people will surely go to jail. …

In NSW employers, their managers and independent contractors can be jailed but employees cannot. When looking to convict someone NSW has thrown out human rights and justice principles. There is no trial before a jury, the Industrial Relations Commission passes judgment, there is no right of appeal through the justice system and the burden of proof of innocence is on the accused.

Some of the concerns about the bill before the House relate to issues associated with the definition of "reckless". Also, how can employers enforce rules on those who flout the rules? Some people will not obey safety rules, or in some instances do not use common sense, despite attending occupational health and safety sessions and being subject to all sorts of codes of practice in the workplace. How can employers be held responsible for those who do not abide by measures put in place to protect their safety? There are many things wrong with the Occupational Health and Safety Amendment (Workplace Deaths) Bill, and I look forward to debate in Committee on the amendments to the bill.
Mr DONALD PAGE (Ballina—Deputy Leader of The Nationals) [5.58 p.m.]: I will make a brief contribution to the debate. Like other honourable members, I hosted a forum on the legislation when the draft bill was introduced. There was a lot of concern in the small business community about the content of that draft bill. In passing, I compliment the shadow Minister, the honourable member for Gosford, on his forensic analysis of the original draft bill, on the information that he provided to other members, and on the awareness that he was able to bring to the import of the detail of the bill. I do not think we should give the Government too much credit for the changes to the draft legislation. Rather, this was a good example of local members highlighting in their communities what was in the draft legislation and, having done so, drawing on feedback from the community.

Most employers were absolutely horrified when they found out the detail of the bill. I genuinely believe that most employers had no idea that the legislation was so draconian. However, the Government has amended the legislation to remove a few of the most obnoxious clauses, but two concerns remain. The first is that a person can be convicted of causing a death in a workplace without a trial by jury. The tradition in our justice system is that under the criminal law a person who is charged with causing the death of another person is entitled to a trial by jury. One of the problems with the legislation is that it is not covered by the criminal law but by the occupational health and safety legislation, which means that there is no presumption of trial by jury. The Government should consider the constructive amendment we will move to give the person who is charged with causing another person's death the right to a trial by jury. It is not unreasonable and it is consistent with the wider jurisdiction of our criminal law.

The second concern is that, under the changed arrangements, the Minister can give consent for a union to bring a charge and the union will receive half of the fine. Although that has been part of the legislation for many years, most of us and most employers in my electorate and, I am sure, across the State, were surprised by that provision. Our concern is whether we should continue to allow a union to bring charges in those circumstances. The WorkCover authority, much like the Director of Public Prosecutions in criminal cases, should bring the charge. Continuing to give unions half the fine will provide an incentive for them to bring charges, particularly when their membership is declining and they need to raise money to continue their operations.

In this day and age it is inappropriate to maintain that type of clause. I urge the Government to consider deleting, rather than modifying, that clause. The Government will argue that the union can bring an action only with the consent of the Minister. I point out that every single member on the other side of the House must be a union member. Many people, including me, were not aware that members of the Australian Labor Party cannot stand for preselection if they are not members of a union. By definition the Minister at the table, the Minister for Energy and Utilities, has to be a member of a union.

Mr Frank Sartor: You are not suggesting that a Minister would act partially as a result of that?

Mr DONALD PAGE: I am suggesting that there is no guarantee that a Minister will not act partially. A natural conflict of interest is built in because one has to be a member of a union to be a Minister in a Labor government. The potential for conflict of interest is very real. The Minister will have to arbitrate as to whether the union can bring the action. I urge the Government to reconsider that issue. We will move amendments in Committee in relation to trial by jury and the continuation of the inappropriate practice of unions bringing actions against employers. No-one supports any employer who acts irresponsibly or who does not support safe workplaces. We certainly do not support rogue employers who do not provide safe workplaces.

Mr GREG APLIN (Albury) [6.04 p.m.]: I speak in opposition to the Occupational Health and Safety (Workplace Deaths) Bill as it stands, a bill which makes it an offence for a person who owes a duty under part 2 of the Occupational Health and Safety Act 2000 to engage in reckless conduct that causes death at a workplace. The bill inserts proposed part 2A into the Occupational Health and Safety Act, which provides that a person whose conduct causes the death of another person at any place of work, who owes a duty under part 2 of the Occupational Health and Safety Act with respect to the health or safety of that person engaging in that conduct and who is reckless as to the danger of death or serious injury to any person to whom that duty is owed that arises from that conduct is guilty of an offence. The proposed offence carries a maximum penalty of 15,000 penalty points, which amounts to $1,650,000 in the case of a corporation or imprisonment for five years or, in the case of an individual, 1,500 penalty points, currently worth $165,000 and the possibility of imprisonment for five years.

Generally, what we are looking at here is the creation by part 2 of the Occupational Health and Safety Act of a duty to ensure that workplaces are safe and without risk to health. The duties are owed by—and this is important—employers, self-employed persons, controllers of work premises, plants or substances, and designers, manufacturers and suppliers of plant and substances. Obviously, the first matter that needs to be drawn from that is the need for a definition in the bill, rather than in some fleeting remark by a Minister in this House, of the term "recklessness". The term needs to be defined and there needs to be certainty, which is currently lacking. With regard to defences, given the magnitude of the penalties, including custodial sentences, and the gravity of the alleged offences to be covered, it is important in our view that proper regard be given to the actions of the employee in determining whether an offence is proven, not only in determination of the penalty. No-one can deny that all workplaces in New South Wales should be safe places in which to work or that an employer's responsibility is to make the workplace under his or her control as safe as is realistically possible.

However, commonsense and life experience tells us that workplaces, like all other places in our community, are affected not only by the actions and inactions of employers, managers and supervisors but also by the employees working in that environment, union officials and visitors as well as other extraneous factors, many of which are outside the control or influence of the employer. Regrettably, the current occupational health and safety legislation applying in New South Wales, which will be made even more draconian by the bill, imposes upon employers obligations backed by severe criminal penalties which defy simple logic. Ignoring commonsense and life experience, the New South Wales legislation seeks to impose an onus or responsibility upon the employer, manager or supervisor to control the workplace environment whilst, at the same time, effectively absolving other actors in that environment of their responsibility. We live in a community where, in most other circumstances, the ethic of personal responsibility is constantly and, quite properly, recognised. In the words of the Managing Director of Peel Machinery:

Most in our community recognised the logic behind the Tort Reform Legislation and the need to move away from the approach of blame shifting for personal actions. Self evidently there is, in the Tort Reform Legislation, an acknowledgement that we live in a highly educated and intelligent society where individuals should not blame others for poor judgment and actions.

It is not unreasonable therefore to ask, why is personal responsibility a recognised fact when a person dives into the surf, or drives a car, but, when a person enters his/her workplace that responsibility is transferred to the employer, manager or supervisor?

Therefore, the argument runs:

Regrettably the OH & S Legislation runs contrary to the insight shown by the Government in its Tort Reform Legislation. The current OH & S legislation seeks to sheet home to the employer criminal responsibility for death or injury in the workplace, notwithstanding the actions of others, simply because of the employment relationship.

One could look at the realities of the situation over the past 12 years and note that industrial fatalities decreased by 43 per cent from 244 in 1988-89 to 139 in 2000-01. Of course, any reduction in fatalities is welcomed. A rate of zero would be better, but the question is whether gaol sentences will improve the rate of decline. Self-evidently, the answer is no. Let me examine what would happen to small businesses if proprietors go to gaol as a result of this bill. The small businesses would close down with a consequent loss of employment. What would happen to the dependants of the gaoled employer? The answer again is self-evident.

In many ways this legislation will make New South Wales even less competitive compared to other States because if this legislation is enacted, based on the 2000-01 rate when 139 persons would have been convicted and sentenced to a period of five years imprisonment, the current rate of depletion in the ranks of management as a result of convictions would be five times the 2000-01 rate, which is 695. That rate will rise if more than one person is convicted as a result of an incident. To place this matter into perspective and sheet home the responsibility to the Government, I point out that approximately 20 people die each year in New South Wales on the railways, so a consequence of this bill would be that, over a five-year period, a large percentage of the State Rail managers would not be at work. But the bill's implications extend way beyond State Rail or any individual enterprise.

Supposedly, the bill will apply only to rogue employers, but it could be used to prosecute any taxi operator who has the misfortune of experiencing a workplace fatality. It would increasingly require them to do what is impossible—display predictive capabilities regarding workplace risks and outcomes—and be accountable for the behaviour and actions of drivers who are ultimately free to work where and how they choose. The New South Wales Country Taxi Operators Association points out that taxi drivers work on public roads and in other public areas that are clearly beyond a taxi operator's ability to influence or make safe. Moreover, the Roads and Traffic Authority [RTA] may be implicated. Recently I received a letter from Peter Drummond who is a licensed real estate agent in Albury. He stated:

We are a real estate business operating in ... Albury ... for the past 25 years. Over that time the business has provided employment to many people; we currently employ 11 employees.

We are a company which takes its corporate and community responsibilities seriously. Our company has over many years been involved in development of training programs, industry promotion, work experience and community services such as fundraising for many worthy appeals. We encourage our staff to take their community responsibilities seriously and participate in helping others.

We are completely committed to providing safe work and a safe workplace. Safety is a responsibility which we treat extremely seriously. We discuss [occupational health and safety] … matters at all our management meetings and endeavour to keep up to date on ... what is required.

We write to express our extreme dissatisfaction with current safety laws in NSW and the proposed amendments to the [Occupational Health and Safety] … Act 2000. The requirement of the current NSW [Occupational Health and Safety] … Act to "ensure" safety means that this legislation already places us in the impossible position of being continually open to prosecution, as the exposure of any employee to any risk means that we have failed to meet our legal obligation.

Even now with our best efforts at risk management this is simply impractical and unachievable and higher fines and gaol sentences will not make it easier to eliminate risks and improve safety, just easier for us to be sent to gaol.

The clarion call being made by this letter and from others to which I will refer is that a comprehensive review of the Occupational Health and Safety Act is required to address employers' concerns about the application, enforcement and interpretation of the Occupational Health and Safety Act 2000. Let me examine the situation with respect to farms. A farmer wrote to me because he is exceptionally concerned over the predicament in which he finds himself. His letter stated:

I wish to stress the difficulties [in which] this poor legislation places the viability of our small "one-man" enterprise.

The current legislation requires farmers to ensure that their workplace is safe, but as I have shown by reference to the letter from the Albury real estate agent, such a guarantee is impossible. The farmer who wrote to me, like everybody else in this State, firmly believes that workplaces must be as safe as practicable—and the key phrase is "as safe as practicable". He stated:

No worker should be at risk of injury or death. But such a guarantee from an employer as it is currently written in the O.H & S act of 2000 is impossible.

That point is made time and time again by people who write to members of the Opposition and by speakers on the Opposition side of the Chamber. He goes on to state:

[A case in] point is the entrance to our farm. This drive way is 1100 metres long. Half its length is lined with old trees. WorkCover will consider this entrance a "workplace entrance" so any one driving on this gravel road is controlled by the current O. H & S legislation. If an accident occurs—

heaven help him if it is a fatal accident—

on this gravel road due to a driver travelling too fast, or losing control of the car, hitting a tree, et cetera, we [the farmers] are liable for damages under this government's legislation.

He called in a WorkCover inspector to help to clarify the situation and give him some advice. The WorkCover inspector was seriously helpful. He suggested that the farmer could chop down the trees, put industrial padding around the trees, make a new treeless driveway, or he could lock the gates and escort all visitors entering the farm from the main road up the drive to avoid any risk of an accident. I am sure all honourable members would agree that they are very practical solutions, but these measures show the absolutely ridiculous situation that is being foisted upon farmers: They believe through advice from WorkCover that this is the position in which they will find themselves. It is up to the Government to clarify the situation and put them at their ease. This legislative stupidity goes so far as to apply to people who are gathering wood on the farmer's land, not as employees or contractors, but to all visitors. This legislation will apply to all people who may venture onto the property.

The situation in which the farmer is placed is that he will have to check equipment to ensure that it has all the right safety gear, carry out a risk assessment on any paddock that people are likely to enter, and undertake a workflow analysis on what is going to happen. All of this has to happen in case there is an accident—and heaven help him if it is a fatal accident—just so that the farmer may have some sort of defence to any incident that may occur on his farm. A farm is declared to be a work site under occupational health and safety legislation. Apparently it is immaterial that injury occurs to someone who is not even employed by a farmer because the farmer will be caught anyway. Because a farm is effectively a work site, the farmer will be liable. The farmer who wrote to me also informed me that he has placed a sign at the entrance to his farm. I am not sure whether he is serious about the sign, but it is certainly what he is contemplating. The sign will state:

Warning, all visitors must report to the owner manager. All visitors must comply with property O. H & S policy. Entry is prohibited without permission and without obtaining notification of any hazards.

On top of all this, all entry gates are to be locked and a speed sign has to be erected on the roads. Thus he now needs a locked gate to regulate entry. He must induct any visitors, work related or not. With a compliance program for occupational health and safety, he asks how a sole operator farmer such as he will be able to carry out his work. He even has to induct the electricity meter reader who he cannot keep locked out because compliance with the occupational health and safety legislation conflicts with the Electricity Act. Workers compensation and regulatory burdens prevent him from employing any help. The situation is forcing him to live like a gaoled prisoner on his own farm, thanks to lawyers, stupid politicians and appalling judicial activism. He states, "… we are now property prisoners". He also set out a problem that he has with Parlour Creek, which is a full-blown river in all but name. It is an anabranch of the Murray River and it runs across his title, his farm and importantly his workplace. His letter asks:

If a boat travelling on this watercourse carrying the public, still a workplace visitor—

or perhaps an inspector from the Waterways Authority—

hits a dead tree or log left in the water, are we liable for any injury or death—

again, heaven help them—

that may occur? Under O. H & S existing definitions they are on our workplace, have not crossed a fence thus are not trespassing and should be entitled to O. H & S protection. Should we be insisting that all fallen wood and "travel hazards" be removed by State Water so that they have a limited risk to any injury or death under O. H & S on this water course, our farm, and thus our workplace.

As I suggested in relation to State Rail that there were also implications for the RTA, now the Waterways Authority may be involved. But where does the risk end? Who is ultimately responsible? The letter goes on to state:

Would such unilateral action on our behalf conflict with existing environmental legislation and lead to prosecution?

This letter proves that this legislation is a minefield.

Should we be arresting any person on this watercourse for trespass to protect ourselves? With existing O.H & S workplace responsibility where does public liability end and O.H & S responsibility begin?

If this is the extent to which legislation is reaching regarding work place safety in NSW, then shut down the State. God help us because He is the only one left with any common sense.

Debate adjourned on motion by Ms Katrina Hodgkinson.

Debate resumed from 25 May 2005.

Mr ANDREW HUMPHERSON (Davidson) [6.20 p.m.]: On behalf of the Opposition I indicate that we do not oppose the Criminal Assets Recovery Amendment Bill. The Opposition will support all reasonable measures to ensure that the assets of criminals are recovered and applied to appropriate purposes. The bill amends the Criminal Assets Recovery Act to extend the New South Wales Crime Commission's capacity to seize assets and funds from drug traffickers, gun runners, fraudsters, car rebirthers and other offenders. The amendments include extending the legislation to allow asset confiscation for a range of crimes, including trafficking in firearms, child pornography and property damage.

The bill targets people who have spent the money of criminal associates. It allows New South Wales authorities to target criminals who have broken similar laws in other States, if those jurisdictions have not moved to seize assets. The bill will indemnify banks or other financial institutions that provide NSW Police or the Crime Commission with reports on customers and will allow the immediate seizure of assets held under false identities, unless the person can prove that the assets were not illegally acquired. The Criminal Assets Recovery Act was introduced by the Greiner Government in 1990. Since that time more than $98 million worth of assets have been confiscated, including approximately $17 million in the 2003-04 financial year.

That legislation was effective and hopefully the changes will make it more effective in targeting those who do not deserve to keep their ill-gotten gains. The Carr Government made an election commitment along the lines that assets held under a fraudulently acquired false identity would be forfeit unless it could be proven that they were not illegally acquired. The Act has been reviewed as part of the Drug Summit recommendations. In view of the foregoing and the principles of the assets of criminals having been illegally obtained and sequestered by the State to be applied to more appropriate purposes, the Opposition supports the intent of the bill.

Mr FRANK SARTOR (Rockdale—Minister for Energy and Utilities, Minister for Science and Medical Research, Minister Assisting the Minister for Health (Cancer), and Minister Assisting the Premier on the Arts) [6.22 p.m.], in reply: I thank the honourable member for Davidson for his contribution and commend the bill to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages.

Debate resumed from 24 May 2005.

Mr ANDREW HUMPHERSON (Davidson) [6.23 p.m.]: On behalf of the Opposition I indicate support of the Fire Brigades Amendment (Community Fire Units) Bill. The Opposition is supportive of community fire units and of formalising the legislative framework that acknowledges the role that community fire units play under the Fire Brigades Act. The bill provides for the establishment of community fire units by the Commissioner of New South Wales Fire Brigades in areas determined by the commissioner. The bill facilitates the appointment of members of community fire units and will define the objects and functions of community fire units including fire prevention work, assisting firefighters during a bushfire, assisting with recovery operations after a bushfire and also will assist their function in relation to fire safety education. The bill also provides for training and equipment for community fire units.

Community fire units were established in about 1994 following the extreme bushfires at that time, particularly in the Sydney area. The units have not been formally recognised in legislation and this bill provides for that recognition. The bill protects the volunteers who participate in community fire units, particularly while undergoing defined functions and roles to protect them from any liability. The bill specifies that damage caused by a member of a community fire unit would be considered as damage by fire for the purposes of any insurance policy against fire damage, and that is consistent with other relevant legislation. The bill extends the protection from liability to members of community fire units. This also is consistent with provisions for the Rural Fire Service and the State Emergency Service.

The Coalition has always been very supportive of community participation in emergency service organisations such as the Rural Fire Service, the State Emergency Service, the Volunteer Rescue Association and the Volunteer Coast Guard, and extends that support to community fire units as defined under the Fire Brigades Amendment (Community Fire Units) Bill. We understand that the success and growth of community fire units highlights the need to ensure that volunteers are protected. Currently in the order of 160 applications or requests to establish new community fire units have been received. Their resources will be provided in part through Federal funding under the natural disasters framework recently established. Hopefully that will see resources provided to those units to ensure that they are able to play their role at an earlier stage.

The Coalition understands that there have been drains upon the New South Wales Fire Brigades budget, so that Federal funding is certainly welcomed. Hopefully there will not be a long lead time before other fire units are established. In the previous sitting week of the House the Minister requested that this matter be dealt with, and I make it clear that the Opposition wanted to have time to consider it, in accordance with the standing orders of the House. I note that the Leader of the House was good enough to indicate to the Minister that that was appropriate. I understand that other members want the opportunity to speak to this bill, having had the opportunity to more fully consider it.

A number of community fire units operate in the electorate of Davidson and the adjoining electorates of Ku-ring-gai and Hornsby. We have a substantial bushland interface in our part of Sydney. I commend and thank those members of our community who have given their time to assist in protecting their neighbours and are prepared to put in the time for training to ensure that if or when the need arises they are able to assist not only their areas and their property but also that of their immediate neighbours. That is a terrific community contribution, one which I acknowledge on behalf of the Opposition. We are very supportive of this bill.

Mr JOHN MILLS (Wallsend) [6.28 p.m.]: I am pleased to support the Fire Brigades Amendment (Community Fire Units) Bill. I welcome the agreement of the Opposition to this bill. Obviously, there was seen to be a need to provide a legislative framework for the community fire unit program. That need will be satisfied by this bill, which sets out the establishment, objects and functions of community fire units. Functions include fire prevention work, assisting firefighters during a bushfire, assisting with the recovery operations after a bushfire and fire safety education in specified localities. I, like the honourable member for Davidson, who led for the Opposition, have one such unit in my area. It is the first of these units in the Hunter region and it is located one street away from my place—in Atherton Close.

Mrs Karyn Paluzzano: There are units in my electorate.

Mr JOHN MILLS: The honourable member for Penrith has units in her electorate. As I said, the unit in my area is located up the side of a valley, one street away from my house. Atherton Close and Bond Close run along the side of a fairly steep hill. The New Lambton Fire Brigade assisted in establishing this unit in an area that is vulnerable to bushfires, just as are many of the suburbs in the northern part of Sydney that were referred to by the honourable member for Davidson. About twenty residents along the street volunteered to work in that unit. The captain of the community fire unit is Bill Anderson. I know a builder and a professor from the medical school at the university who are also members of that unit.

That unit was launched one rainy night about four months ago. It now owns a pump and a trailer with tall sides that opens out and forms a base for its operations. It has available to it, if necessary, fire hydrants in Bond Close and in Atherton Close. A pool is located very close to the house where the van is kept. The owners of that pool have given the unit permission to set up the pump at the back of the pool so they are able to hose down nearby bushland. On the night that the unit was launched it was explained to me that the job of the community fire unit, in the event of a serious or widespread fire, is to hold the line until the fire brigade takes over.

New Lambton Fire Brigade provided members of that unit with excellent training. These enthusiastic people hope that they are not called out but their training continues at a steady pace. I commend those volunteer members, led by Captain Bill Anderson, of the Atherton Close-Bond Close community fire unit, which is located in Rankin Park. I trust that they do not have to go to work too often but, if they do, I hope they are able to work safely and assist in protecting our local community. As other community fire units come on stream I hope that they are able to assist in protecting our communities from the potentially adverse impact of serious bushfires. I commend this bill.

Mr ANTHONY ROBERTS (Lane Cove) [6.33 p.m.]: It is with great pleasure that I join my colleagues on both sides of the House to support the Fire Brigades Amendment (Community Fire Units) Bill. The object of this bill is to amend the Fire Brigades Act 1989 to provide a legislative framework for the establishment and operation of community fire units [CFUs]. The bill will enable the provision of training and equipment to community fire units. It will also provide for the objects and functions of community fire units, the appointment of members of community fire units and the establishment of community fire units by the Commissioner of NSW Fire Brigades for areas determined by the commissioner.

This bill formally recognises the existence and role of community units and confirms that damage caused by a member of a community fire unit in the exercise in good faith of certain functions under the principal Act is to be considered damage by fire for the purposes of any insurance policy against fire damage. The bill extends protection from liability to members of community fire units. That is consistent with similar provisions for the Rural Fire Service and the State Emergency Service. The Coalition has always supported and encouraged community participation in emergency service organisations. It certainly supports this measure.
As a member of my local community fire unit at Riverview it gives me a great deal of pleasure to be able to support this bill. The CFUs are volunteer teams of local residents who are trained to safeguard homes during a bushfire until the fire brigades can get there. The aim of the CFU program is to reduce the impact of bushfires on the community and to protect life and property from bushfires. A typical team is comprised of between 6 and 20 members. Recruitment occurs within the community and local fire stations conduct regular training sessions with volunteers, with training on bushfire education, prevention and preparation.

As a CFU member I have learned valuable things such as bush care and bushfire behaviour, safe housekeeping and gardening practices, the planning and preparation for bushfires, the operating and handling of fire equipment, mop-up operations and processes that help to reduce bushfires in our community, and also limiting the effect of bushfires on life and property in our community. CFUs are part of a statewide network. I am proud to have quite a few units in my electorate, which comprises a large part of the national park. I was proud to be part of the community fire unit that fought the last bushfires. The Premier awarded the community fire unit a certificate of commendation.

Mrs Karyn Paluzzano: Did you write a press release?

Mr ANTHONY ROBERTS: We did a very good job. I commend the entire program to anyone who would like to become involved in protecting life and property. It is easy to become involved in community fire units. I place on the record this evening the names of the people in my CFU who worked hard and diligently in their training and preparation. Many of these people saved a number of homes during the last bad bushfire season. I refer to Bob Marsh, the team leader; Graham Clark, the second in charge; Michael Marsh; Tim Curtin; James Curtin; Richard Curtin; Helen Prentice; Ian Longbottom, who happens to be the Mayor of Lane Cove; Dave Neil; Leanne Yates; Gary Johnson; Paul McCarthy; Rod Semple; Mark Greathead; Tony Nolan; and Jim Hacquoil.

Mr Bob Debus: Give them our compliments. They are a very good team.

Mr ANTHONY ROBERTS: I will pass on the Minister's compliments to the Riverview community fire unit. Once again, I fully endorse this important legislation, which does something positive for the people of New South Wales. God forbid that we ever have to face the fires that we faced in the past. With the CFU program now in place, next time we have a great fire disaster we will be more prepared and more able to protect life and property. I commend the bill to the House.

Mrs KARYN PALUZZANO (Penrith) [6.37 p.m.]: It has been said this evening in debate on the Fire Brigades Amendment (Community Fire Units) Bill that people on the urban rural interface know the importance of community fire units [CFUs]. We know as a result of the terrible 1994 bushfires that CFUs play an important part in communities that have an urban and rural interface and that might not have access to a rural fire service or to a fire brigade during a bushfire season. There are 10 or more community fire units in and around the Penrith electorate. My electorate is adjacent to the electorate of the Minister for Emergency Services, who is in the Chamber.

The community fire units in and close to my electorate are located as follows: one in Dawn Crescent, Mount Riverview; one on Bruce Road, Glenbrook; two on Brook Road, Glenbrook; one on Wright Street, Glenbrook; one on Prince Street, Glenbrook; one on Honeyeater Avenue, Blaxland; one in Bowaga Avenue, east Blaxland; one on High Road, Blaxland; one on Curvers Drive, Mount Riverview; and one on Reading Street, Glenbrook. I commend Bob Maxwell from the retained brigade in Glenbrook and the officer in charge of training and recruitment of those community units in and around the Glenbrook-Lapstone-Mount Riverview-East Blaxland-Blaxland areas for his work.

Twelve months ago we had one CFU and we now have 10. In 12 months nine brigades have been trained, received their gear and are starting their admirable work. Members of the public know that during a fire season when houses and property on the rural and urban interface are at risk, CFU members remain to protect their homes. Members of the public know that CFUs are not fire brigades or rural fire brigades but they have the skills to reduce the damage that is caused by embers such as those that burned property in Glenmore Park, a fairly urban part of Penrith. Embers from the Glenbrook fires got into the eaves of houses when fire brigade members were elsewhere and houses in those urban areas were burned. Community fire units should be commended because ember attacks cause a great deal of damage in urban areas.

Recognising the community's desire to protect people's homes during a bushfire, a new role for residents in bushland areas was encouraged post 1994 through the New South Wales Fire Brigades Community Fire Unit Program. As others have said, the community fire units take the form of either a trailer or a fixed unit and contain basic firefighting equipment, including a pump, hoses and protective clothing. Units cost between $15,000 and $20,000. Community fire units enable residents of bushland communities and urban rural communities to play a role in supporting firefighting efforts during bushfires by putting out spot fires and flying embers in their streets after the main fire front has passed. I note that Brooke Road has two community fire units. Brook Road is situated halfway up a ridge line that faces a large part of the Blue Mountains National Park. If a fire rages down the gully the homes on Brook Road will cop it first. During the 1969 fires—which I remember; I lived just a street away—

Mr Paul McLeay: You would have been just one year old!

Mrs KARYN PALUZZANO: I was just a little one. In 1969 a number of homes were lost on Brook Road. So it is good to see local residents actively supporting the community fire units in 2005. CFU members will also assist with hazard reduction operations in their areas and fire prevention education for their local communities. These units are intended to assist our firefighters from New South Wales Fire Brigades and the Rural Fire Service, whose firefighting expertise, hard work and commitment are unparalleled. I commend the Lapstone-Glenbrook rural fire service for its commitment, hard work and dedication.

Since its establishment in 1994 the CFU Program has gone from strength to strength. During that time the Glenbrook, Blaxland and Blaxland East areas have demonstrated that community spirit is alive and well with the emergence of the CFUs. There are almost 280 units around the State, with about 4,700 community members. Ten of these community fire units are located in the Penrith electorate—I said that this number is growing because another unit will be fitted out shortly. By the start of the next bushfire season in October, New South Wales Fire Brigades plans to have about 300 units, with more than 5,000 members, installed around the State.

The bill recognises the efforts of these members of our community. It also provides for the New South Wales Fire Brigades commissioner to establish community fire units and appoint members. It sets out the objects and functions of CFUs, which include undertaking fire prevention work, assisting firefighters during a bushfire, assisting with recovery operations after a bushfire, and educating the community about bushfire safety and prevention. I met a number of community fire unit members at a recent Glenbrook festival, at which Bob Maxwell from the Glenbrook retained brigade had a stall. Community education on bushfire safety is important. Parts of Glenbrook and Blaxland are renewing. People are moving into the area who did not experience the 1994 bushfire. It is exceedingly daunting to be confronted with a bushfire, and I commend the new residents of Brook, Emu and Bruce roads for their community fire safety and prevention education.

This legislative framework will also affirm the public liability, WorkCover and insurance protection for CFU members working under the authority of the commissioner and in good faith. New South Wales Fire Brigades is to be congratulated on this positive and sensible initiative that aims to increase the community's fire protection. I commend residents in the electorates of Penrith and the Blue Mountains who are part of this initiative and I urge the House to support the bill.

Mrs JUDY HOPWOOD (Hornsby) [6.43 p.m.]: I am glad to speak to the Fire Brigades Amendment (Community Fire Units) Bill and to recognise a fantastic project that has been successfully implemented in many streets in our community. The objective of the bill is to amend the Fire Brigade Act to provide a legislative framework for the establishment and operation of community fire units. The bill provides for the establishment of community fire units by the commissioner of New South Wales Fire Brigades in areas determined by the commissioner, the appointment of members of community fire units, the objects and functions of community fire units—which include fire prevention work, assisting firefighters during a bushfire, assisting with recovery operations after a bushfire, and fire safety education—and the provision of training and equipment to community fire units.

The bill formally recognises the existence and role of community fire units. Anybody who has had anything to do with community fire units will know that they are much prized and valued by local residents. The bill specifies that damage caused by a member of a community fire unit in the exercise of his or her functions in good faith is to be considered damage by fire for the purposes of any insurance policy against fire damage. The bill also extends the protection from liability to members of community fire units. This is consistent with provisions for the Rural Fire Service and the State Emergency Service. Opposition members have always encouraged and supported community participation in emergency service organisations, of which the community fire unit project is just another example.

Community fire unit volunteers are much valued in local areas. I congratulate New South Wales Fire Brigades, Australia's largest urban fire service, and thank its officers for all the time and effort they have devoted not only to creating the concept of community fire units but to making them a reality in our streets. I live in Mt Colah and represent the electorate of Hornsby in this place. My electorate encompasses many bushland areas, including Ku-ring-gai Chase National Park and Berowra Valley Regional Park. Just before Christmas in 2002 a massive bushfire burnt out about 50 per cent of my electorate. Community fire units formed part of the wider emergency services effort and allowed other more experienced, professional firefighters to move on to other fire fronts while CFU members mopped up and performed other jobs relevant to their role.

I congratulate Joanne Campbell, the Captain of the Janita Crescent community fire unit, which was established at the other end of the very long street in which I live. I assisted members in lobbying for the unit. I live on the edge of a ridge around which the street winds for some distance so I consider it an essential location for a community fire unit. Many residents in my street are members of the unit. I first attended community fire unit training early in 2002. I was invited to do so by another Mt Colah resident, Carol McCormick, who is a very enthusiastic member of her community fire unit. We watched in a cul-de-sac while firefighters showed members of the community fire unit how to use hoses. I found it absolutely fascinating and it was obvious that similar units would prove very effective in many streets across my electorate. I was told then that units cost $12,000 each, so it is a quite expensive exercise to stock a trailer with the necessary equipment and outfit the volunteers that constitute the unit.

As I said, community fire units are volunteer teams of local residents trained to safeguard their homes during a bushfire until the fire brigade can get there. Unit members obviously perform post-fire tasks as well. A typical team comprises between six and 12 or more members, and recruitment is from within the local community. Local fire stations conduct regular training sessions with volunteers, focusing on bushfire education, prevention and preparation. Local volunteers in my electorate regularly go to the St Ives showground, where they are taken through various stages of training by experienced volunteers and members of New South Wales Fire Brigades. They are taught to use pumps, for example.

Last year I attended a session at the showground. A CFU member will learn about bush care and bushfire behaviour, safe housekeeping and gardening practices, planning and preparing for bushfires, operating and handling fire fighting equipment, mop-up operations, processes that help to reduce bushfires in the community, and limiting the effect of bushfires on life, property and community. Community fire units are part of the statewide network, as previous honourable members have already indicated. I look forward to increasing numbers of CFU members around the State. Members of CFUs are fully insured while training, or when actively participating in the operations.

The CFU program represents a proactive rather than a reactive approach by New South Wales Fire Brigades to decrease the impact of bushfires on the community. The program has been embraced by the community and is driven by the will of its members. With the help of CFUs, New South Wales Fire Brigades is now able to target a larger area of the State for bushfire risk management work. CFUs are successful and very effective. The benefits to a member are that they learn about the processes that help to reduce bushfires in the community and limit the effects on property, and they are part of a very large team. Insurance is provided for members and CFUs form strong links with the local fire station and with other community fire units. Regular editions of the New South Wales Fire Brigades publication "Fire News" assist the brigades and reduce the dollar cost of destructive bushfires on the community. In many fires where CFUs have assisted, excellent results have been achieved.

New South Wales Fire Brigades issued a fantastic brochure entitled "Community Fire Units". The caption states "Making your house, your street, your community … a safer place", which is obviously the tenet of the CFUs. I live in a bushfire prone area, as do many people, around the perimeter of Sydney. We know the devastation that fires cause in local communities; we fear them and their effects. People realise that community fire units work closely with the New South Wales Fire Brigades and that gives the community a feeling of safety. I join with other members of the Opposition in supporting the Fire Brigades Amendment (Community Fire Units) Bill.

Mr PAUL McLEAY (Heathcote) [6.52 p.m.]: I support the Fire Brigades Amendment (Community Fire Units) Bill, which formally recognises the role and function of community fire units [CFUs]. I will not reiterate what many former speakers have said about the role and capacity of the CFUs except to say that I support them and acknowledge the functions they provide. My electorate of Heathcote has many community fire units that are quite central in the location, planning, mapping and organisation of CFU activities. Recently, the Premier, the honourable member for Menai and I talked to volunteer community fire units in Menai. We told the units about this legislation, which they supported. They know that in the Sutherland shire there is extensive interface between nature and the urban areas.
A lot of support is provided by local radio stations, such as 2SSR. Whenever a bushfire occurs it takes its mobile transmitting device in its caravan and parks it at the fire control and broadcasts live regular community updates. All of our local papers, including the St George and Sutherland Shire Leader, heavily promote community fire units and bushfire activities. The great thing about CFUs is that they give people the opportunity to protect their own homes and the homes of their neighbours. CFUs do not require their members to run up their street or to go to the next suburb or out of their area. Their members are well trained and are provided with protective personal equipment. When the fire front hits, the professional fire fighters and Rural Fire Service volunteers attack it. When the fire front moves on, the CFUs come into their own. They are there to mop up and watch for embers. Tragically, a lot of houses are lost through ember attack.

We have got many resources on a fire front and that is why CFUs are so effective and powerful. The community fire units free up active fire fighters so that they do not have to sit and wait. There are 70 CFUs in the Sutherland shire, hence the high profile campaign there. In the Illawarra section of my electorate there are many CFUs. As one drives along Stanwell Tops and Stanwell Park one can see the red vans, or cupboards, which are very regularly dispersed because of the extensive interface between the bush and urban areas. The community fire units are very well supported. The most recently established CFU in my area is in Sandpiper Place, Woronora Heights. People campaigned, got organised and trained for the unit. Last year there was a huge training exercise in the shire and thousands of units were there. The honourable member for Miranda was present on the day to celebrate with them and to encourage and promote CFUs, as do all members of Parliament who represent the Illawarra and the shire.

Last month, in the Australian Capital Territory budget, $500,000 was wiped completely in light of severe Federal cutbacks, and all future growth of their community fire units was abandoned. That should be compared to what is happening in New South Wales, where the Government is promoting and reinforcing the CFUs by providing protections through WorkCover and other benefits enjoyed by volunteers in the State Emergency Services and the Rural Fire Service. This is important legislation, it is great work, and it will give the commissioner the ability to continue to provide the CFU service and extend it.

Ms GLADYS BEREJIKLIAN (Willoughby) [6.57 p.m.]: I join with honourable members in supporting the Fire Brigades Amendment (Community Fire Units) Bill. The bill formally establishes a legislative framework for the establishment and operation of community fire units. In my community, community fire units have played a very important role, especially since 1994 when horrific and tragic bushfires occurred throughout Sydney. In the Willoughby electorate there exists the West Chatswood community fire unit, the Middle Cove community fire unit and the Castle Cove community fire unit. We are very fortunate in the electorate of Willoughby to live in such close proximity to the heart of Sydney, the central business district, yet to be surrounded by such beautiful Australian natural bushland. However, with that advantage comes the potential of hazardous events when there are bushfires, and as properties are in such close proximity to bushland the need for community fire units becomes ever more paramount.

I acknowledge the New South Wales fire services that are involved in training the community fire units who direct the community fire units in their work and who ensure the overseeing of their activities. The bill provides for the establishment of community fire units by the Commissioner of New South Wales Fire Brigades for areas determined by the commissioner; the appointment of members of community fire units; the objects and functions of community fire units, including fire prevention work, assisting fire fighters during a bushfire, assisting with recovery operations after a bushfire, and fire safety education; and the provision of training and equipment to community fire units.

It is very important for a bill such as this to be put in place. Recognition of the enormous contribution made by community fire units to assist with protecting property should be a matter of formality. Importantly, the bill specifies that damage caused by a member of a community fire unit in the exercise in good faith of certain functions is to be considered damage by fire for the purposes of any insurance policy against fire damage. The many volunteers in our community who undergo training to enable them to participate in their local community fire unit deserve the protection that this legislation offers them where damage is caused through their activities specifically in the process of trying to assist fire services in the protection of property. The bill extends the protection from liability to members of community fire units. This is consistent with similar provisions relevant to the Rural Fire Service and the State Emergency Service. The Coalition has always encouraged and supported community participation in emergency service organisations, and that is reflected in our total support for the bill.

I would like to mention that on 29 May, at the St Ives showground, many community fire units from across the lower north shore and Sydney participated in a very extensive training session. Only this afternoon I spoke to a few locals, who told me they undertook four hours of training on that day. People are more than welcome to join a community fire unit, but with that comes responsibility to undertake training each year. I understand the minimum requirement is about eight hours of training. On 29 May many locals were able to undertake about four hours straight of training and to conduct various exercises to ensure, when and if tragic circumstances arise where property needs to be protected, especially within the electorate of Willoughby, they will be ready to accept that responsibility with full confidence that they have undertaken the training and whatever else is necessary to support the fire services in the protection of property. I understand that three local community fire units in the electorate of Willoughby conduct bi-monthly activity in relation to the testing of equipment and routine procedures and guidelines.

I would like to take this opportunity to explain what community fire units are. They are, technically, volunteer teams of local residents trained to safeguard their homes during a bushfire until bushfire brigades can get there. The aim of the community fire units program is to reduce the impact of bushfires on the community and to protect life and property from bushfires. Typical teams are made up of 6 to 12 members. Recruitment is from within the local community—a must, because locals know their community best. Local fire stations conduct regular training sessions with volunteers.

It is important to recognise the contribution made by local fire stations to supporting community fire units. They give unstintingly of their time to offer training and support to those units. The training focuses on bushfire education, prevention and preparation. Community fire unit volunteers can expect to learn about bush care and bushfire behaviour, safe housekeeping and gardening practices, planning and preparing for bushfires, operating and handling fire fighting equipment, mopping up operations, processes that help to reduce bushfires in the community generally, and limiting the effects of bushfires on life, property and community in times of bushfire.

Community fire units are part of a statewide network. Members are fully insured while training or while actively participating in the operations of a community fire unit. The program represents a proactive rather than reactive approach by New South Wales Fire Brigades to decrease the impact of bushfires on the community. This program has been embraced by the community and is driven by the will of its members. With the help of community fire unit volunteers, New South Wales Fire Brigades is now able to target a larger area of the State for bushfire risk management work. The community fire units are very noble organisations. The bill formalises the role of community fire units. I am pleased on this occasion to extend my wholehearted support to those many local volunteers who support the West Chatswood, Middle Cove and Castle Cove community fire units. In particular, I would like to mention Warwick Tate, who is the team leader in Middle Cove but I understand is also active in Castle Cove, as is Evelyn Medlingburg, and Ron Fredericks is team leader in West Chatswood.

I will take this opportunity to speak about some of the more specific provisions of the bill. I have already mentioned its main provisions. The bill inserts into the Act a new division that provides for the establishment and disbanding of community fire units by the Commissioner of New South Wales Fire Brigades in geographical areas within a fire district. The commissioner is to appoint in writing any person as a member of a community fire units and to terminate an appointment at any time in accordance with guidelines established by the commissioner. The objects and functions I have already mentioned. The exercise of those functions is subject to the commissioner's direction and control. The bill provides for the supply of training and equipment that the commissioner considers necessary for each community fire unit to exercise is functions. I have mentioned already the provisions relating to property damage. The bill also ensures protection for a community fire unit member from any action, liability, claim or demand for any good faith act or omission done in executing his or her statutory functions, and the extension of the existing protection from liability for things done in good faith to include things omitted to be done.

Community fire unit organisations are involved in a very positive community program to ensure that the many members of the community who are very vulnerable to bushfires receive information about the community fire units. There are very well presented information and education guidelines for prospective community fire unit members. I think we take for granted, especially in areas of Sydney where there is a lot of bushland and relative peace and quiet, that something as tragic and as fast as a bushfire can come from nowhere. It is very comforting for all of us to know that the community fire units are there supporting our New South Wales fire services in the protection of property. I reiterate my support of and commitment to the local community fire units in the Willoughby electorate, and I commend the bill to the House.

Mr ANDREW CONSTANCE (Bega) [7.07 p.m.]: I support the Fire Brigades Amendment (Community Fire Units) Bill. I represent the electorate of Bega, where there are retained brigades of New South Wales Fire Brigades and the Rural Fire Service. The establishment of a legislative framework to protect the operations of community fire units is worthy of the support of all honourable members of this Parliament. The bill provides for the establishment of community fire units by the Commissioner of New South Wales Fire Brigades for areas determined by the commissioner and the appointment of members of community fire units. It also sets out the objects and functions of community fire units. Of course, those functions include fire prevention work, assisting fire fighters during a bushfire, and assisting with recovery operations after a bushfire and with fire safety education.

Australians generally, but the people of New South Wales particularly, are very much aware of the needs and desires of communities faced by such tragedies and the fact that everyone wants to roll up their sleeves and get involved. The bill recognises this great spirit of volunteerism and enables it to continue to flow to New South Wales Fire Brigades through the community fire units. Also, and importantly, the bill establishes a framework for the provision of better training and equipment to those involved in the community fire units. That obviously is a commendable feature of the bill.

The bill specifies that damage caused by a member of a community fire unit in the exercise in good faith of their functions be considered damage by fire for the purposes of any insurance policy against fire damage. This is an important step forward and provides protection from liability to members of community fire units. It is consistent with provisions relating to members of the State Emergency Service and the Rural Fire Service. The New South Wales Coalition has always encouraged and supported community participation in emergency service organisations. The framework set out in the bill will further encourage members of the community to volunteer for such organisations.

Bushfires pose threats to all communities in New South Wales. The suburbs of Sydney well within the confines of the city boundary face an ongoing risk, as does country New South Wales. The establishment of community fire units will be important particularly in metropolitan areas. Firefighting is a specialist and dangerous job, which requires specialist skills and management. Through community fire units we can improve the skills of volunteers that enable them to better manage the dangers associated with firefighting. The legislation is commendable and enjoys the support of both sides of the House.

Mr BOB DEBUS (Blue Mountains—Attorney General, and Minister for the Environment) [7.11 p.m.], in reply: I acknowledge the contributions of a large number of honourable members to the debate. It is no accident that the majority of them represent the sandstone plateau areas around the outskirts of Sydney. As a result of my experience as Minister for Emergency Services up until the last election—therefore my experience as Minister for Emergency Services in 2001-02 and 2002-03—I know that community fire units are institutions that provide massive benefits. The fire experience of those years encouraged an exponential growth in the number of such units. Now that we have them in such numbers it is hard to imagine why we did not have them long ago. In many parts of the State, particularly around the outer ring of the metropolitan area, people who live in streets on isolated ridges benefit enormously from a neighbourhood of people who are literate in firefighting whenever an emergency arises.

Citizens of localities particularly vulnerable to fire should have levels of education and training about five behaviour that enables them to work as significant supplementary forces to the main fire brigades rather than as impediments to their activity. These units are a manifestation of our society's improving capacity to live with the environment, the more so as global warming seems set to ensure that there will be more rather than fewer bushfires in the years to come. I congratulate particularly the Minister, the Hon. Tony Kelly, on the initiative to make a proper constitution for community fire units, and the Fire Brigades Commissioner, Greg Mullins, on his leadership in the continuing growth and development of these important community groups. It is with pleasure that I commend the bill to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages.

Debate resumed from 27 May 2005.

Mr ANDREW TINK (Epping) [7.15 p.m.]: The Opposition does not oppose the Courts Legislation Amendment Bill, the purpose of which is to make a number of amendments to various legislation relating broadly to courts and court officers at all levels in New South Wales, including justices of the peace, right through to amendments requested by the Chief Judge of the Land and Environment Court. The Law Society raised a number of matters. It is regrettable to note that the Law Society had only one day available to make submissions on the bill. I do not know whether that is the case, but that is what Mr McIntyre, the President of the Law Society asserts. He outlined a couple of matters in his letter to Mr Glanfield that he would have been able to advise on in perhaps more detail had he had the time. However, as I read them they are not matters about which he would propose amendments to the bill. They relate to maximum costs increased by an additional amount for certain claims heard by the District Court, in respect of which there is an ongoing in-principle opposition to the capping of costs that already has taken place. The Law Society is maintaining an objection to something that is already in place.

The second matter to which he referred relates to officers who may be authorised to exercise the powers of the deputy registrar. He envisages a situation where a registrar of a local court may exercise the powers of the deputy registrar of the Supreme Court. He says that is there is no explanatory memorandum and he is not aware of the reason for the amendment. He says that the practice and procedure in the Supreme Court is vastly different to the practice and procedure in the Local Court. I am concerned that Mr McIntyre has not had the time to provide the full response that he might wish to make. However, recently the Parliament passed laws to streamline and standardise the rules of court in the various jurisdictions. Accordingly, it may be easier to be a registrar in the Local Court also acting as a deputy registrar in the Supreme Court inasmuch as the rules, court documents and so forth are to be standardised, which offsets that concern.

The major matter raised relates to costs orders against solicitors under the Land and Environment Court Act. The Law Society says—and it was apparently pointed out to the Attorney General—that litigation in the Land and Environment Court often involves conflict between the exercise of council authority and private property and interests. Plans and aspirations of a property owner are affected and clients typically become emotional and intransigent over issues involving their land, and such clients can refuse to allow their legal representatives to advise them in relation to a negotiated settlement. When they subsequently receive an adverse costs order for their failure to negotiate they metamorphose into clients who would have negotiated if only they had been properly advised to do so. Because of confidentiality that governs the solicitor-client relationship, the court may never become aware of a solicitor's attempts to render proper advice.

Page 5 of the explanatory notes to the bill says that the court will have power to order costs against a solicitor where there is serious neglect, serious incompetence or serious misconduct. That is a fairly significant test. It involves essentially serious misconduct, and it is hard to argue against the bill if that test in a particular case is met. It seems to me, with great respect, the case is not made out for the non-introduction of that section. If the test was not of that degree of seriousness there could be a different outcome, but my view is that the test in the bill is a sufficiently high bar to meet and it is appropriate that it is there.

The final thing I would like to say is in relation to the recognition of masters as associate judges. This is something I welcome. When I was in practice many years ago I spent some time before the Supreme Court masters in the equity division, where we did testator's family maintenance applications. That was a significant part of the equity jurisdiction, and was exercised by masters, but since that time the jurisdiction of masters has expanded greatly and they now do a great deal of the work of the Supreme Court across the board. It is extremely fitting that the masters—Malpass, McLaughlin, Macready and Harrison—are recognised as associate judges. It is overdue and well-deserved recognition of the role each of them plays. I put the amendment in that context.

It appears from the bill and from the second reading speech that it also has something to do with gender issues. I accept that but another point is to be made here. To my mind, as somebody who has appeared in those courts, it is recognition that those people are justices of a type and ought to be recognised in that way. I welcome that change, which is strongly supported. With those words, I am happy to indicate there will be no opposition from us to this bill.

Ms VIRGINIA JUDGE (Strathfield) [7.24 p.m.]: I speak in support of the Courts Legislation Amendment Bill, which will make minor adjustments to improve procedures within the courts. A number of provisions deal with administrative structures of courts and registry functions. These changes are designed to improve the service that courts provide to clients. I commend the Minister, his staff and the department for bringing this bill to the House. Anything we can do to streamline those procedures will benefit everyone who works within the system and the clients who have to come before the courts on occasions.

One of the amendments is a change of title from Master of the Supreme Court to Associate Judge of the Supreme Court. In many ways this demonstrates the desire of the court to use more appropriate gender language, a more contemporary style of addressing people in the courts. Anything in that area has to be a plus. Honourable members know my position on the use of gender comments. Recently in this House I had to address what I thought was a breach of parliamentary standing rules and procedures when a gender comment was made. Anything we can do to facilitate a gender balance in our Local Court, District Court or Supreme Court—which is not quite the object of this bill—would be great. It would be great to see more women in those positions.

The title of Associate Judge of the Supreme Court demonstrates a desire to apply a more modern modality to the language used. I know the title of master has a long legal history but in today's culture it has little relevance or understanding. The title of master of the Supreme Court is also a source of confusion as it is a gender specific title. At present, one of the masters is a female—Master Joanne Harrison—and I am advised that from time to time legal practitioners experience some difficulty in correctly addressing Master Harrison. This change is most welcome. The title associate judge is easily recognised, is applicable to both male and female judicial officers and gives a proper indication of the position within the hierarchy of the court system.

The bill also introduces powers for the Chief Justice of the Supreme Court to appoint registrars of the Local Court, and other officers, to be deputy registrars. I understand the intention behind this amendment is to enable registrars of the Local Court in country and regional areas to assist interstate legal practitioners in applying for admission as legal practitioners of the State of New South Wales. In places such as Albury, where many Victorian legal practitioners seek to work in New South Wales, it will avoid the need to attend before the Supreme Court for the filing of documents and the taking of oaths. This is a sensible, commonsense, practical amendment that will improve services in regional areas, particularly in border locations.

The Carr Labor Government also seeks to make changes that will streamline the process for the reappointment of justices of the peace. We all know that justices of the peace play an important role in the community in administering oaths, declarations and affidavits. The Government wants to encourage justices of the peace to continue their commission by cutting some of the red tape. When justices of the peace are first appointed it is necessary for them to take an oath of office. Under the Justice of the Peace Act justices of the peace are appointed for five-year terms. A justice of the peace may apply to have his or her commission renewed for another five years. The renewal process requires the completion of a simple form to confirm their personal details and circumstances and to establish a continued need for appointment. The proposed amendment will simplify the process of renewal so that justices of the peace will not need to take further oaths of office when applying for reappointment of their commission.

As members of Parliament one of our duties is to process justice of the peace applications. I am sure we all enjoy doing that. It is great to see that members of the Opposition agree with the Government and support this. It is a great opportunity for us to interact directly with members of our community. I always try to meet with constituents who apply to become a justice of the peace [JP] because, firstly, they play an important role in the community and, secondly, I want to be as sure as I possibly can that the applicant is a person of integrity in the community. When I interview them I am painstaking in asking certain questions, for example: Have you ever been guilty of any offences under the Crimes Act? Have you ever been declared an undisclosed bankrupt? Have you ever been placed on a good behaviour bond?

When applicants go through the process it is important that their documentation and references are thoroughly checked, particularly in my community of Strathfield where the 2003 census figures show that my seat ranks number one for the number of people from southern Asia. When members of my community become justices of the peace, particularly when they declare that their intention is to use the position for community use, they deal with people who look up to them. Members of my community hold a JP in the highest esteem. We need to be sure that these JPs are of good character and that when they witness documents they clearly understand the important role they play in the community.

Last Monday I interviewed four JP applicants. One of the applicants, who had originally come from Hong Kong, said to me, "Do you realise, Virginia, in Hong Kong to be a JP you are up there at the top? People look up to a person who has a business card with 'JP' on it." I was interested to get that feedback. I said to her when undertaking the role of JP to make sure when people asked her to witness their signature that they do not rush in and say, "Quickly, can you sign this?" or "I had it signed at home". She must sit them down, check their identity, witness their signature and check the document is dated. If it is a statutory declaration she must ensure that it is appropriately filled out. Furthermore, I told her not to be rushed. If they tell her they are in a hurry, she must tell them she has an important role to play. People will look to her for leadership in the community.

In the past, applicants for reappointment had to come in for an interview and go through the process again. This bill will streamline the process. If they decide to renew they will not have to go through all the procedures again, so long as they have not committed any offences that would preclude them from being reappointed as a JP. There is always the backup of the department, which gives them a once over to make sure that everything is in order. The process of renewal of commissions for justices of the peace will provide appropriate probity checks to ensure that the integrity of the office of justice of the peace is maintained. Justices of the peace are required to remain of good character throughout the period of their appointment and are obliged to disclose any conviction, bankruptcy or other circumstance that might warrant a review of their appointment. To summarise, the bill is progressive and pro-active and will cut unnecessary red tape associated with the reappointment of justices of the peace, who are people of integrity within the community. I commend the bill to the House.

Mr BARRY COLLIER (Miranda) [7.33 p.m.]: I am pleased to speak on the Courts Legislation Amendment Bill. The bill amends a number of Acts with respect to courts, court proceedings, judges, pensions and related matters. The bill includes amendments to the Administrative Decisions Tribunal Act, the Anti-Discrimination Act, the Criminal Appeal Act, the Judges' Pensions Act, the Land and Environment Court Act, the Legal Profession Act, the Local Courts Act and the Supreme Court Act. I want to focus on one particular aspect of the bill, that is, the amendments to the Land and Environment Court Act.

The Courts Legislation Amendment Bill contains a number of provisions that will improve the capacity of courts and tribunals to manage cases efficiently. The changes to the Land and Environment Court Act 1979 will allow the court to direct the parties to attend mediation with or without the consent of the parties. The Supreme Court and the District Court currently have the power to refer appropriate cases to mediation without the consent of the parties. Often one party may not initially wish to participate in mediation, yet once a matter has been referred it may still be successfully settled. We should encourage parties to use alternative dispute resolution options, such as mediation, to ensure that the costs of litigation are kept at a minimum. If the Land and Environment Court considers that a case may benefit from mediation, it should be able to refer the parties to mediation even if a party does not consent. As I said, a similar power already exists in both the Supreme Court and the District Court.

The powers of the Land and Environment Court are also extended to make orders for costs personally against a solicitor who is responsible for causing delay and additional costs as a result of serious neglect, incompetence or misconduct. No doubt, the vast majority of legal practitioners before the court act with due skill and diligence and this type of power will only be used in very rare circumstances. However, it is appropriate for the court to have this type of power. The court is under scrutiny to ensure that cases are managed in a way that will facilitate the just, quick and cheap resolution of disputes. The court is dependent on the co-operation of legal practitioners in achieving this outcome. Legal practitioners are officers of the court and their first duty, above their duty to clients, is to the court itself. If a legal practitioner, through serious neglect, incompetence or misconduct, delays proceedings and incurs costs it is appropriate that the court has the discretion to order costs personally against the legal practitioner. This is not a new power. It is one that has been available in the Supreme Court and the District Court for some time.

A further amendment that will assist case management relates to the Administrative Decisions Tribunal. The tribunal has dealt with a number of claims relating to unconscionable conduct in the Retail Leases Division since it was given jurisdiction to deal with such matters on 1 March 1999. Tribunal members dealing with these cases have substantial skills and qualifications in commercial law. The current legislative provisions restrict a number of these members from continuing to deal with these types of cases. The proposed amendment will ensure that the Retail Leases Division of the Administrative Decisions Tribunal will still be in a position to provide a simple process for dealing with retail lease disputes.

The Chief Judge of the District Court has raised concern that there has been a significant decrease in recent years in the number of personal injury claims being referred for alternative dispute resolution [ADR] through arbitration. The major factor contributing to this decline is the reluctance of legal practitioners to elect for matters to be referred to arbitration. If a court rehears a case after arbitration the legal practitioner runs the risk of reaching the maximum costs cap allowed under the Legal Profession Act. The option of arbitration is an important aid to the court to assist with the quick resolution of cases. It is appropriate that the Government support the continued use of ADR options. These options ensure that overall costs are reduced and courts are able to continue to deal with cases in a timely manner.

The Government accepts a legitimate concern among legal practitioners that a referral of a case to arbitration may leave the party open to additional costs if the other side elects for the matter to be reheard. It is appropriate for the costs cap to be increased for the party who does not elect for the matter determined at arbitration to be reheard by the court. This amendment has the support of the Law Society of New South Wales. The amendment is consistent with the objective of promoting access to alternate dispute resolution options to litigants while still maintaining an appropriate control on the maximum amount of legal costs recoverable in certain personal injury cases.

The additional increase in the costs cap is also available to a person who is the respondent in appeal proceedings. If the District Court has determined a case then a successful party should not be discouraged from retaining legal representation to defend that claim by operation of the costs. It will avoid the potential that a party may lodge an appeal in the hope that the other side will have exhausted the legal costs recoverable under the current costs cap. These changes are a sensible adjustment to the capping of costs in legal proceedings to ensure that the Government encourages access to justice while ensuring proportionality of legal costs. I commend the bill to the House.

Mr PAUL LYNCH (Liverpool) [7.38 p.m.]: I support the Courts Legislation Amendment Bill. This is a regular omnibus bill that arises from the Attorney General's review and monitoring program. It includes miscellaneous amendments to legislation relating to New South Wales courts and their operation. These are, of course, traditionally minor or comparatively minor amendments. There are, however, a number of matters of interest in the bill. By operation of schedule 10 of the bill, section 19A of the Local Courts Act 1982 is repealed. Section 19A states:

No Magistrate may robe at any sitting of a Local Court.

That means that the prohibition on magistrate robing is removed. I am not personally enthusiastic about that particular change. I would have thought there was enough pomposity amongst members of the magistracy already without doing anything to encourage it. More seriously, it just adds a level of mystification and unnecessary overformality to the process. The saving grace, I suppose, is that this amendment does not make it compulsory for all magistrates to robe, and it seems as though it is altered only to allow a plain black robe. Hopefully, most magistrates will not take advantage of this change to indulge a passion for fancy dress in courtrooms.

Another change in this legislation, to which I am considerably more sympathetic I must say, relates to the officers of the Supreme Court called "Masters". The legislation removes that title and replaces it with the term "Associate Judge". Granted that the judicial officers concerned are, in effect, associate judges and are exercising judicial powers, it seems only sensible to call them precisely that. In addition, there are two other objections to the use of the term "Master". One is the obvious point that it is gender specific and thus inappropriate. As well as that it is, quite frankly, just a little silly. I recall appearing before Joanne Harrison, I think when she was a registrar. She is now a master, and it does not make a lot of sense to call her a master. The other equally obvious point is that the title is archaic and its use adds to confusion and mystification of the law. In my view, its removal and replacement by the term "Associate Judge" is a good thing and should be welcomed.

There are various other provisions that flow from that. One of those is an amendment to section 52 of the State Constitution Act so that "Associate Judge" is included in the definition of "judicial office". That is, of course, allowable by section 56 of the Constitution. I note the comment in the Minister's second reading speech about advice from the Parliamentary Counsel that there is no need for a referendum. Other provisions in this legislation ensure that there are no other substantive changes and that there will be no impact of this change in title on any proceedings before the court.

Another interesting and beneficial provision of the legislation relates to costs in personal injury proceedings in the District Court. That is the provision that amends section 338A of the Legal Profession Act 2004. The amendment provides that the maximum costs that can be claimed in respect of legal services in personal injury claims where the amount recovered is $100,000 or less is increased in certain circumstances. The amount by which it is increased is 15 per cent of the amount recovered or $7,500, whichever is the greater. The situation in which that can be claimed is where the court refers the matter to arbitration and the matter is subject to rehearing after the arbitration, or where the court decision is appealed. As I understand it, the impetus for that change has come from the Chief Judge of the District Court. Because of the restriction on costs many claims were not finding their way to alternative dispute resolution.

In essence, if a matter went to arbitration and then to rehearing, it became uneconomic for practitioners to run cases. Accordingly, practitioners seem to have avoided going to arbitration. That is clearly an undesirable outcome. It must be in the broader interests for alternate dispute resolution methods, such as arbitration, to be utilised. This amendment is intended to allow cases to go to mediation so that if, in effect, legal practitioners run two cases they get paid for two rather than for one. That should increase the use of arbitration. There are a number of other provisions that I will briefly note. An amendment is made to the Administrative Decisions Tribunal Act to overcome a recent Supreme Court decision concerning qualification of members hearing unconscionable claims cases in the retail leases division. Without the amendment following the Supreme Court decision only one member of the current tribunal could hear these cases. The amendment would also appear to validate previous decisions.

Another amendment changes the Oaths Act to allow registrars of the Local Court to administer the oath of office for a justice of the peace. In practical terms I assume that is to prevent a magistrate's court time being used for administering those oaths rather than for dealing with the list. The Jury Act is also amended to provide the details of a prescribed manner in which a juror takes an oath or affirmation before serving as a juror. That removes the necessity for a religious text to be used by the person taking the oath. Schedule 7 to the bill provides that a justice of the peace is not required to take the oath of office again at the time of re-appointment if the former appointment has not lapsed. I commend the bill to the House.

Mr BOB DEBUS (Blue Mountains—Attorney General, and Minister for the Environment) [7.43 p.m.], in reply: I thank honourable members for their contributions to the debate. The Courts Legislation Amendment Bill is designed to improve the efficiency of the courts and to provide more accessible services for both legal practitioners and the public. The Government introduces a bill of this nature in most sessions of Parliament and I believe that the particular measures contained within this bill are each, without exception, representative of a significant improvement in the administration of New South Wales courts.

I will respond briefly to several matters raised by the honourable member for Epping. I point out that the Law Society was, in fact, given the opportunity to comment on this bill on two occasions, once late last year. The provision that the honourable member said the Law Society commented on last year has not changed since that time. It is regrettable, therefore, that the Law Society feels that there has been some discourtesy when, in fact, I believe there has been a misunderstanding on the part of the society. The issue that was the subject of the Law Society's concerns—that is, the awarding of costs against a practitioner in the Land and Environment Court—mirrors powers that are already available in the Supreme Court and District Court.

I acknowledge that the honourable member for Epping sees the value of carrying the provision through to the Land and Environment Court. As he indicated, the test to be applied in awarding costs personally is a substantial one. It is designed to discourage unreasonably high legal costs for litigants and to enhance the court's ability to manage cases before it. In other words, this is a sensible provision and it is, in practice, no different from provisions that already exist in several other courts.

I mention also the other matter raised by the Law Society, which concerned the reason for allowing registrars of the Local Court to perform the duties of deputy-registrar of the Supreme Court. That amendment will allow the Chief Justice to appoint registrars of the Local Court in regional and border areas so that they may perform the functions of deputy-registrars of the Supreme Court. The Chief Justice has indicated that this measure will improve the service to people in border towns who might wish to make an application to be admitted as a legal practitioner of the Supreme Court under mutual recognition legislation. The amendment will potentially allow a person to take the oath of office of a legal practitioner before a deputy-registrar in a regional area, rather than having to attend in Sydney to do so. Again, I commend to the House this series of commonsense and useful measures to improve the accessibility and efficiency of our courts.

Motion agreed to.

Bill read a second time and passed through remaining stages.

Debate resumed from 25 May 2005.

Miss CHERIE BURTON (Kogarah—Parliamentary Secretary) [7.48 p.m.]: I support the Building Professionals Bill, which creates a single independent statutory body, the Building Professionals Board, to accredit, audit and investigate complaints against private certifiers in New South Wales. There are more than 400 private certifiers operating in New South Wales today. They are primarily responsible for measuring compliance with building standards as part of the development process. Under the current system, four professional associations accredit and discipline private certifiers who are their members and peers. The system is cumbersome and costly for these associations and can be confusing for members of the public when they need information or need to lodge a complaint about dodgy building certification.

Through this bill the Government is clearing out the cobwebs on building certification. The bill replaces the current arrangements by establishing a new Building Professionals Board to do this work—an independent, statutory authority that will consolidate the existing accreditation schemes and be a single point of contact for the public. The board will report to the Minister and be publicly accountable. The board will comprise a maximum of eight members, and each member will be equipped with the requisite skills and expertise to exercise the board's functions. The board will be appropriately staffed and resourced.

The bill creates a simpler and more effective system to regulate certifiers. A clear and straightforward process of complaints investigation will be established by the bill. Under the current system, people who want to make a complaint about the practice of a private certifier need first to find out who the accredited certifier is, who issued the relevant occupation or construction certificate, or who the principal certifying authority is for the site. They then need to find out who accredited the certifier, and this could be any one of four existing accreditation bodies. After all this, they finally need to lodge a complaint in the form and method required by that accreditation body. It can take days and even weeks just to get this far. By establishing the Building Professionals Board, the bill dispenses with this cumbersome and often frustrating system. It will create a one-stop shop for information on accredited certifiers and a single complaints mechanism for the public. This is the kind of outcome that the Campbell inquiry into the quality of buildings was all about: getting rid of the complexity that makes life unnecessarily difficult for the everyday person.

The public rightly expects that if something goes wrong, or if something is not built to specification, there will be a clear and easily accessible process to have their grievances heard and resolved. The everyday person does not have days or weeks to spend pursuing certifiers, bureaucracies and professional associations just to find out basic information or lodge a complaint. The creation of the Building Professionals Board means one set of accreditation and competency standards for all private certifiers, instead of four. It means a single body responsible for investigating complaints against private certifiers. It means a more accessible and transparent system of building regulation in New South Wales. Professional associations support the bill, and peak stakeholders in the building industry are also supportive of it. I commend the bill to the House.

Mr CHRIS HARTCHER (Gosford) [7.52 p.m.]: First I acknowledge the professionalism of the Coalition representative in the Legislative Council, the Hon. John Ryan, who joins us in the gallery tonight, in leading for the Coalition on the Building Professionals Bill. The Coalition has assessed the bill and determined that it has a number of flaws. Notwithstanding that, and while we will not oppose the bill on its second reading, we will seek to amend it to make the actions of the Minister more accountable to Parliament. The bill reforms the scheme for accrediting and monitoring the system of private certification. Private certification is a good system that allows members of the building and development industry to seek alternatives to local government for the certification of building projects. However, the Carr Government appallingly implemented the system, and two years ago numerous examples of poor professional practice were brought to the attention of this tired and discredited Government.

Perhaps the most infamous example was a 650-unit development in Castlereagh Street, Sydney, called Regis Towers, which had numerous problems with issues such as the fire separation between individual units in the block. There were also instances in which residents found that some dividing walls between units did not meet the slab above, and in which fire collars were missing around plumbing. In the case of a fire, this defect could have allowed fire to spread quickly between units. A duly qualified building surveyor acting as a private certifier apparently certified all this defective work. The Joint Select Committee on the Quality of Buildings found that there was almost no auditing of the hundreds of certificates issued by private certifiers.

The bill has a number of key features. It establishes the Building Professionals Board as an independent statutory body responsible to the Minister. It replaces four accreditation bodies, three operated by private professional associations such as the Institute of Engineers Australia and the Professional Surveyors Occupational Association, and one operated by the Department of Infrastructure, Planning and Natural Resources for building surveyors and allied professionals. The board will be responsible for accrediting, auditing and investigating complaints against all private certifiers in New South Wales. It will establish minimum competency standards for all certifiers and will enforce one set of standards for professional conduct. The board will have sanction powers consistent with other government licensing agencies, including the ability to caution, fine—up to $11,000—or suspend certifiers for unsatisfactory professional conduct.

The bill does not change arrangements for the accreditation of council certifiers, and they remain under the current arrangements by which the Department of Infrastructure, Planning and Natural Resources supervises their actions. The bill provides for the establishment of a board of between three and eight persons, including a president and a deputy-president appointed by the Minister, who can be paid fees and allowances as determined by the Minister.

However, the impression given by the Government that it has widely consulted building professionals and received their approval for the bill is not true. Organisations such as the Institute of Engineers Australia and the Association of Accredited Certifiers have enormous concerns about the bill. So too does the Master Builders Association, which, it appears, was not consulted at all about the bill. The Master Builders Association is a long-established industry organisation covering all sectors of the building and construction industry. Included in the make-up of its membership are building practitioners and certifiers. I reiterate: The Master Builders Association has not been consulted with respect to the Building Professionals Bill. What an indictment of a Government that the major professional body that represents building certifiers is not even consulted. In its dying, decrepit days this ramshackle Government has not even consulted the association.

This is the Government that gave us Orange Grove. Indeed, the Minister who gave us Orange Grove is at the table. This is the Minister who presents legislation that affects the livelihood of hundreds and hundreds of certifiers and the whole structure of the building industry in this State, and who does not even consult with the principal body involved. It is there in black and white. I reiterate: The Master Builders Association has not been consulted with respect to the Building Professionals Bill. I will return to that aspect in a moment.

Associations such as the Institute of Engineers Australia are concerned that the scheme introduces a new level of bureaucracy for building industry professionals such as engineers and architects who, unlike building surveyors, already have well-established systems of self-regulation for accreditation, together with procedures for resolving complaints and disciplining misconduct. They also point out that there have not been any instances of engineers being the subject of significant public criticism.

The bill is extremely open-ended. For example, it is very flexible about what professional experience is needed for a person to be a member of the new Building Professionals Board. If the Government were so inclined, not one of its members need have any professional building or engineering qualifications at all; they could all be members of the local Australian Labor Party [ALP] branch. It will be interesting to watch, as the months and years go by, just how many ALP hacks get their little reward for long service to the Labor Party and the trade union movement by appointment to the board. It is yet another opportunity for the Labor Party to exercise its patronage. One wonders how effectively the Labor Party will resist the temptation to stack the board with its own hacks, rather than allowing it to be what it is supposed to be: a professional body.

The Government has not given any indication, and probably has no idea, of the minimum qualifications, skills, knowledge and experience it will ultimately require of private certifiers. The bill indicates that there will be both a code of conduct for accredited certifiers and a regime for continuing professional development, but the Government does not have any idea of what will be included in the code of conduct, nor any idea as to how much additional training it will require accredited professionals to undertake to comply with its proposals for continuing professional development.

Significantly, these important issues will be determined by the Minister on a take it or leave it basis with no opportunity for the usual scrutiny that normally applies to this type of regulation. The Minister will simply decide what the standards will be and have them published in the Government Gazette. They will become law, yet they will not be tabled in Parliament. There will be no opportunity for them to be reviewed by the Parliament's own Legislation Review Committee. There will be no opportunity for disallowance by either House of Parliament, and no opportunity for a regular five-yearly review that is normally required for statutory rules.

The Opposition does not accept that the Government should be given enormous powers without parliamentary scrutiny and will be seeking to amend the bill. I have circulated an amendment which seeks to ensure that important standards will be treated like any other regulations that are made by the Government. As I stated earlier, building industry professionals are very concerned about a number of aspects of the scheme. The bill requires all accredited certifiers to hold professional indemnity insurance, but a number of important issues about that type of insurance are yet to be resolved. Currently there is no provision for run-off insurance. Common industry practice is for the companies that employ individual private certifiers to cover them with a general professional indemnity insurance policy. For example, engineers do not usually take out an individual insurance policy to cover themselves. Without the provision of run-off cover, the professionals are concerned about what will happen when they move from one company to another, or leave the profession to pursue another career.

Yet by virtue of this bill, the Government is mandating that all private certifiers must have professional indemnity insurance. However, the Government does not have any plan for how such issues will be resolved. Contrary to claims made by the Government to have consulted all of the relevant professional bodies during the preparation of the bill, the Master Builders Association was not consulted. The association has outlined to the Opposition a number of concerns about the extent of disciplinary powers that have been given to the Building Professionals Board and the lack of clarity about the rights of professionals to obtain minutes and documents that are used by the board in arriving at decisions to suspend or discipline building professionals.

The Master Builders Association points out in respect of renewal of certificates of accreditation in part 2, division 2, "Accreditation of accredited certifiers", clause 6 (8), that 60 days is considered to be too long. An established business can effectively be suspended for up to 60 days pending the board's decision. Conversely, a certifier who is the subject of investigation by the board has only 28 days in which to make written submissions to the board in regard to a report outlining a complaint. Accordingly a period of 28 days may be more appropriate and consistent with other provisions.

In respect of part 3, "Disciplinary proceedings", under division 2, "Conciliation of complaints", the Master Builders Association seeks clarification of the term "assist" in clause 24 (2), Will the officer appointed by the board be the conciliator or carry out some other function? The association submits that any officer to be appointed to a role by the board should be appropriately trained in dispute resolution in order to allow a proper process of conciliation to occur. In respect of part 3, division 4, "Procedure after investigation of complaint", clause 30 gives the board extensive freedom in gathering and considering matters in meetings convened to consider a complaint. Considering that such deliberations by the board may be the subject of an appeal by the certifier, in the interests of fairness and transparency, it should be a requirement that transcripts or comprehensive minutes should be recorded of such deliberations and be made available to the certifier concerned in the event of an appeal to the tribunal. It is noted in this context that clause 17, "Minutes", of part 3, "Procedure" of schedule 1, "Constitution and procedure of Board" requires full and accurate minutes of board meetings to be kept. However, there appears to be no mention of whether minutes or extracts from minutes will be able to be accessed by certifiers in preparation of an appeal.

Part 5, "Powers relating to investigations", clause 50, "Inspections and investigations", and clause 51, "Use of force", cause great concern to the Master Builders Association related to the extent of power that is afforded to authorised officers. Power is afforded to an authorised officer to dismantle and extensively interfere with work in carrying out investigations. Reasonable force, which is not defined, may be used to gain entry. An authorised person may take photographs and make video and audio recordings. Clause 54, "Compensation", provides for the payment of compensation for damage caused arising from work done for the purpose of an inspection. Clauses 53 (1) and 53 (2) require care to be taken and extend to the restoration of fences that have been opened up to gain entry for the purpose of carrying out investigations. The association raises concerns that, without the requirement for proper video and audio recordings of inspections, disputes will arise over the extent of damage incurred in gaining entry or during the inspection or investigations. Claims may be made that in the course of opening up work, collateral damage was caused elsewhere to work that may not be the subject of the investigation and inspection.

Ideally, such inspections should be carried out in the presence of a person who has been given charge or ownership of the premises, and a copy of any recordings made of the inspection or investigation should be provided to the certifier and the property owner. In respect of clause 55, "Authority to enter premises", the association makes the point that any such authority should include a photograph of the holder of the authority. In respect of clause 56, "Restrictions on power of entry to residential premises", the association is of the view that without a definition of "residential purposes", the clause is ambiguous. Does it mean premises that are currently being used, have been used, or can be used for residential purposes? Clarification needs to be provided where mixed development exists in circumstances in which part of the project is residential and part of it is commercial or retail.

These concerns have rightly been raised by the Master Builders Association. It is appropriate and incumbent upon the Government to address these concerns. If the Government is not prepared to address the concerns in the Legislative Assembly, it will be compelled to address them in the Legislative Council. The Carr Government has walked over professional bodies, as is its style, unfortunately, including the Institute of Engineers and the Master Builders Association despite the fact that they have a direct interest in this legislation. Significantly, the Carr Government has sought through this legislation to exempt itself from scrutiny because, in contrast to ordinary regulations, the rules that are being made under this legislation will not be subject to parliamentary scrutiny.

Accordingly, the Opposition will move an amendment to ensure that the rules that are being made under this legislation will be subject to disallowance, parliamentary scrutiny and parliamentary assessment in line with the normal practice of Westminster parliaments. I have no doubt that the Legislative Council will support that proposition. Yet again the Government has been caught out in another disingenuous sleight of hand in an attempt to exempt itself from public scrutiny. Given this Government's extraordinary record in the administration of planning in this State, is it any wonder it would make such an attempt?

Ms Diane Beamer: Keep a straight face, Chris, you can do it!

Mr CHRIS HARTCHER: I will not respond to the provocation of the Minister at the table. She would love to engage in dialogue related to Orange Grove, but I will not respond to her interjection. However, I invite the Minister during her reply to respond to the concerns I have outlined. If the Minister is not prepared to respond to the concerns in this House, she will be compelled to respond to them by the Legislative Council. The crucial issue is twofold: The first element is the Government's desire to achieve exemption from parliamentary scrutiny, and the second is the Government's failure to consult the key professional bodies. Each element is an indictment of the administration by the Minister, each requires a response from her and justification by her, and each indicts the Minister and her department in relation to the administration of planning in this State. The Coalition yet again has caught out the Minister. She has been weighed in the balance and has been found wanting. If the Minister is not found wanting by the procedures of the Parliament in this House, she will certainly be found wanting by the Legislative Council.

Ms MARIANNE SALIBA (Illawarra) [8.10 p.m.]: I support the Building Professionals Bill. The introduction of private certification in 1998 has given consumers more choice. Consumers can now choose to apply to the local council or to a private certifier for the necessary approvals for building and subdivision work. They can find the best person for the job after considering speed, competency, experience and price. Private certifiers have a legal status as public officials. Their work therefore carries a clear public interest aspect. Despite this, private certifiers are sometimes criticised for having a conflict of interest between their statutory responsibilities and their business interests. There is no question that it is important that certifiers should make decisions without being influenced by a pecuniary interest in the development. This is stated in the bill.

The bill sets high standards of conduct for private certifiers—and these standards are backed up by increased investigatory and sanction powers against private certifiers found guilty of unprofessional conduct. The recruitment of additional auditors for the Building Professionals Board is already occurring; and the maximum penalty for a conflict of interest has been increased from $22,000 to $33,000. Under this bill a conflict of interest includes when the certifier has a contractual arrangement with the applicant for the development that might reasonably be seen to give rise to a conflict of interest. The auditors of the Building Professionals Board will be able to check close relations of certifiers with certain clients. For instance, the auditors will be able to check whether a certifier is continually working with a particular developer and therefore highly dependent financially on receiving work from that developer.

As an extra measure of the seriousness with which the Government regards conflicts of interest, the bill introduces a new conflict of interest provision to prevent private certifiers from certifying the design or construction work of a person in the same or a related company. "Conflict of interest" is also defined under the bill as including when a certifier is involved in the design of the development that he or she is certifying. The bill provides scope for a regulation to be more specific on the definition of "design". Further consultation will occur with industry, certifiers and local government to ensure that the regulation is both protective of the public interest and practical for enforcement and for orderly development. The bill strikes the right balance between safeguarding the public interest and not unduly restricting an efficient development process. I support the bill.

Ms KATRINA HODGKINSON (Burrinjuck) [8.12 p.m.]: I recognise that the purpose of the Building Professionals Bill is to establish the Building Professionals Board, to provide for the accreditation of private certifiers, the regulation and making of complaints against accredited private certifiers, and investigation of certifying authorities including private certifiers and councils. A minor amendment to the Environmental Planning and Assessment Act 1979, preventing retrospective issuing of construction certificates, is also proposed. By way of background, six years ago a system of private certification was introduced to give the development industry an alternative to using local council certification for building projects. We are all aware that that scheme came under question in the media and the Parliament when a number of examples of seriously inappropriate certifications were brought to the attention of the public.

That scheme was heavily criticised by the Joint Select Committee on the Quality of Building, the so-called Campbell committee. This bill is the Government's response to those concerns. I note that the Mayor of Gunnedah, Gae Swain, is present in the public gallery. She has been an active proponent of the Brigalow region and the timber industry. I am sure she is also interested in this bill. The key features of the bill are that it establishes the Building Professionals Board as an independent statutory body responsible to the Minister; and it replaces four accreditation bodies, three professional associations and the Building Surveyors Accreditation Panel which is operated by the Department of Infrastructure, Planning and Natural Resources.

The new board will be responsible for accrediting, auditing and investigating complaints against all private certifiers in New South Wales; it will establish minimum competence standards for all certifiers; and it will enforce one set of standards for professional conduct. The board will have sanction powers consistent with other government licensing agencies, including the ability to caution and fine up to $11,000, or suspend certifiers for unsatisfactory professional conduct. The bill does not change arrangements for the accreditation of council certifiers and they remain under the current arrangements by which the Department of Infrastructure, Planning and Natural Resources supervises their actions. Another key feature is that the bill provides for the establishment of a board of between three and eight persons, including a president and a deputy president, appointed by the Minister, who can be paid fees and allowances as determined by the Minister.

Obviously some provisions of the bill make it favourable. It creates a simpler regulatory system; four accreditation schemes and accreditation bodies will be replaced with one system of accreditation. It is generally accepted that that will provide for better consumer protection and external oversight of standards and complaints procedures. However, the bill introduces a new level of bureaucracy for building industry professions such as engineers and architects, who already are very well self-regulated. Their actions have not been the subject of complaints or public criticism as have others. Some aspects of the bill, as outlined by the shadow Minister representing the shadow Minister for Commerce in this place, are very open ended. The standard setting clauses appear to have been drafted to ensure that the Minister can gazette standards set for accreditation without the parliamentary scrutiny normally given to regulations.

In saying that, I acknowledge the very hard work of the Legislation Review Committee. The committee includes members of this House: honourable members representing the electorates of Canterbury, South Coast, Wollongong, Orange and Strathfield, as well as three members of the Legislative Council. I know the efforts they go to in ensuring that legislation is properly reviewed before it is debated in this place. I note some of their concerns were raised in the Legislation Review Digest No. 7 of 2005, and I could not pass up the opportunity to mention some of those concerns. It is important that some of the issues considered by the committee be placed on the public record.

I acknowledge the Legislation Review Committee for raising these issues, which include trespasses on personal rights and liberties, as provided for in section 8A (1) (b) (i) of the Legislation Review Act and self-incrimination in proposed section 59. Proposed section 59 provides that a person who is required under the Act to answer a question, produce a thing or provide information is not excused from answering the question, producing that thing or providing the information on the ground that the answer to the question, the production of the thing or the provision of the information might tend to incriminate the person or make the person liable to a penalty. The Legislation Review Digest states:

6. The section also provides that:

Any answer given to a question, any thing produced or any information provided by a natural person in compliance with a requirement under this Act is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence against section 58 of this Act or section 307B or 307C of the Crimes Act 1990).

7. The Committee will always be concerned with legislation that removes or restricts a person's right against self-incrimination (or "right to silence"). The Committee considers that this right is a fundamental human right protecting personal freedom and human dignity. The Committee notes that Article 14(3)(g) of the International Covenant on Civil and Political Rights states that a person has the right "not to be compelled to testify against himself or to confess guilt".

8. The Committee notes that the right has been held by the High Court to apply to civil proceedings.
9. The Committee also notes that the Senate Standing Committee for the Scrutiny of Bills:

generally holds to the view that the interest of having government properly informed can more easily prevail where the loss of a person's right to silence is balanced by the prohibition against both the direct and indirect use of the forced disclosure.

The Legislation Review Committee is concerned to limit exceptions to the prohibition against such use. In principle, a forced disclosure should be available for use in criminal proceedings only when they are proceedings for giving false or misleading information in the statement which the person has been compelled to make. The digest further states:

It has become relatively common for laws in New South Wales to compel persons to provide information that Government requires when that information is peculiarly within the knowledge of the person, even though to do so may incriminate him or her. Such laws are usually made in the context of issues of great public concern, such as public safety.

It is the view of that committee that any such legislation should be made only with clear and proper justification on significant public interest grounds. Where possible, legislation should avoid providing for a blanket removal of the right but distinguish between situations in which there is a genuine and justifiable belief that public safety or some other equally serious matter of public interest is at stake and other possibly less serious matters. I will not read the report word for word, but it is obvious that the committee—

[Interruption]

At the Minister's insistence I shall continue. The Legislative Review Committee stated:

In the former case derogation of the right may be warranted. In the latter case, it may be possible to obtain the information from another source ...

I am sure that the Minister will not raise all these points. If they have to be raised by somebody it might as well be me. The committee stated:

The Committee notes that clause 59 does not make any such distinctions but provides for a blanket removal of the fundamental right of a person to remain silent.

The Minister obviously thinks that this is a bit of a joke, that it is a laughing matter. I assure the Minister that members of her political party are extremely concerned about certain aspects of this legislation. She might take it a bit more seriously and note the excellent work of the Legislation Review Committee, which provides a valuable service to this Parliament. I am certain that the Minister is not interested in raising these issues. She is laughing it off and she does not really care. But it is important that these issues are raised. The committee also stated:

The Committee notes that the privilege against self-incrimination is a fundamental right expressed in the International Covenant on Civil and Political Rights and the common law. The Committee considers that this right should only be modified in the public interest and in a manner proportionate to that aim. Blanket removal of the right should be avoided where possible and unnecessary use of information should be proscribed.

I support the comments of the honourable member for Gosford in relation to the Government's failure to consult the Master Builders Association [MBA]. I was not aware of this issue before he raised it in debate tonight. The Master Builders Association, a peak industry body, has many members throughout the Burrinjuck electorate and rural New South Wales. Many contractors and builders in every town across this State are members of the MBA. It is outrageous that that peak industry body was not properly consulted about the bill. The honourable member for Gosford foreshadowed that he would be moving amendments in Committee. Those amendments will provide for parliamentary scrutiny of accreditation schemes. I support the Opposition's proposed amendments.

Mr ALLAN SHEARAN (Londonderry) [8.22 p.m.] I support the Building Professionals Bill. The establishment of the Building Professionals Board introduces significant improvements to the regulations of building certifiers and will ultimately help in lifting industry standards in this State. The public expects and deserves a high level of confidence and accountability in the building professionals that they employ. The bill tackles these challenges by setting appropriate entry requirements to be a practising certifier through a new accreditation scheme to be developed by the board; requiring ongoing training and professional development of certifiers as part of their accreditation; and putting in place a more effective and streamlined disciplinary framework against certifiers who do the wrong thing. All three of those areas are dealt with in the bill.
The bill introduces a requirement for a single streamlined accreditation scheme to be developed and administered by the Building Professionals Board. The new scheme will require not just proof of qualifications and experience; it will allow the board to test certifiers' competency to ensure that they do the job for which they are professionally trained and accredited. The bill provides that this can be achieved through interview and/or through examination or practical demonstration. The scheme will have continuing professional development requirements, which accredited certifiers will have to meet each year. It will have a single code of conduct that applies to all private certifiers, thus simplifying the four codes that are now in existence.

The bill gives the board new disciplinary powers allowing it to take more immediate and effective action if a complaint is made and upheld. The bill allows the board to directly discipline certifiers through cautions, reprimands, conditions on accreditation, ordering the undertaking of specific education, or imposing fines up to $11,000. The most serious matters, those involving alleged professional misconduct, will not be determined by the board but are to continue to be referred to the Administrative Decisions Tribunal where fines of up to $110,000 may be issued. The bill replaces the current system where an accreditation body needs to obtain a certifier's consent prior to any proposed disciplinary action. If the certifier does not agree sanctions can be imposed only by taking action in the Administrative Decisions Tribunal. The current system is costly and slow.

The board will be obliged to publicise disciplinary actions. This will serve as an important educative tool for certifiers and it represents an additional consumer protection mechanism for people seeking to engage a certifier. Finally, the bill gives the board emergency powers to suspend a certifier if the board considers such action necessary to protect the property or safety of any person. This is yet another example of the consumer and public protection elements of the bill. The bill overcomes the plethora of problems that exist within the current accreditation and disciplinary systems. It does that by establishing a single, transparent, accountable and fair accreditation and disciplinary process—one set of standards and one disciplinary process. The bill demonstrates the Government's commitment to lifting standards in the certification and building industry generally. Through this bill the Building Professionals Board will engender a high level of competency and the ongoing professional development of certifiers in this State. I commend the bill.

Ms DIANE BEAMER (Mulgoa—Minister for Juvenile Justice, Minister for Western Sydney, and Minister Assisting the Minister for Infrastructure and Planning (Planning Administration)) [8.27 p.m.], in reply: Before responding to the comments made by the honourable member for Gosford, I thank the honourable member for Kogarah and the honourable member for Londonderry for their support for the bill. Later I will refer specifically to the comments made by the honourable member for Burrinjuck. It is good to see that the bill has substantial support. A number of industries were consulted about the bill during its consultation phase.

The honourable member for Gosford asserted that the Master Builders Association was not consulted. I assure the honourable member for Gosford that a copy of the bill was sent to the Master Builders Association and it was invited to a stakeholders meeting. The fact that it did not reply to me or attend the stakeholders meeting does not mean that it was not consulted. Let us look at those groups that represent people who work in the building industry. I will refer to a few of the responses that I have received so the honourable member for Gosford is aware that consultation took place and that it led to a positive outcome for industry. The Housing Industry Association states:

The HIA supports the move towards the accreditation of all certifiers, both council and private, through a single statutory body such as the board. We are hopeful that the future board will be able to establish a consistent benchmark for all building certifiers within New South Wales.

The Australian Institute of Building Surveyors, a body involved in certification, states:

The Australian Institute of Building Surveyors welcomes the introduction of this bill and also looks forward to participating in similar discussions relating to regulations to be made under this bill.

The Association of Accredited Certifiers, another body involved with certification in New South Wales, states:

We are strong supporters of the New South Wales Government's drive for a uniform accreditation scheme that ensures all practitioners actively involved in the certification of buildings in New South Wales are suitably qualified and insured while having suitable practical experience to perform the services they provide.

That is a ringing endorsement from industry and from those who will be regulated by this bill. It is also a ringing endorsement from those industries that will be involved in it. I agree that we should consult the Master Builders Association and numerous other organisations—and we did. The Planning Institute of Australia, the Australian Institute of Building Surveyors, the Association of Hydraulic Services Consultants Australia Inc., the Association of Consultants in Access, Australia Inc., the Development and Environmental Professionals Association, the Association of Accredited Certifiers, the Housing Industry Association, the Home Building Service, the Office of Fair Trading, the Department of Commerce and, of course, the Master Builders Association were just a few of the organisations that we consulted.

The honourable member for Gosford foreshadowed that he will move an amendment in Committee. The accreditation scheme must be flexible in response to changes in the industry and education courses essential for certifiers. The bill has the following safeguards: the Minister must exhibit the scheme publicly, public exhibition is mandatory under the bill unless the change is minor, and the Minister must take comments into account. Regulations do not need to be exhibited, as proposed by the Opposition. The scheme in the bill is more accountable than the Opposition's supposed amendment would make it. The board is required to keep the scheme under review. The Opposition should keep in mind that the existing system has no public accountability. The proposed process of accreditation must be flexible. The consultation requirements in the bill are appropriate and we reject the amendment.

The honourable member for Burrinjuck referred to self-incrimination. The use of information obtained through waiving the privilege against self-incrimination is particularly important in disciplinary proceedings. These proceedings may be conducted either by the Building Professionals Board or the Administrative Decisions Tribunal. Such proceedings are necessary to ensure the enforcement and effectiveness of the framework created under the bill, and particularly necessary to ensure the safety and quality of buildings. Other civil proceedings in which self-incriminating information may be used are when injunctions are sought under the Environmental Planning and Assessment Act to prevent persons from breaching the Act. Injunctions may be obtained against persons who are not accredited certifiers and therefore will not be subject to measures under the Building Professionals Bill, such as suspension. Both disciplinary proceedings and the seeking of injunctions are actions taken to protect the public rather than punish the individual concerned. Under these circumstances, I consider the ability to use self-incriminating information in civil proceedings to be justified.

The bill marks a major milestone in the Government's reform of the building industry. It is a strong response to concerns about the regulation of certifiers expressed in the Campbell inquiry—I am glad to see the Minister for Regional Development in the Chamber—into the quality of buildings. The honourable member for Gosford gave the example of Regis Towers when speaking about certification. I think he is right, but this bill does not cover the people who certified that building. This bill covers private certifiers, not council certifiers—who certified Regis Towers. When we talk about amending the legislation in future we must, in consultation with local government, include local government certifiers and their accreditation in the process. So I say to the honourable member for Gosford: I am sorry, but this bill does not cover council certifiers. I am sure that he will bear that in mind when Opposition members consider the bill in the other place—wherever that might be; at one stage I thought it was heaven from the way the honourable member was talking. It is a great place to be—that other place to which I will be accountable.

The overriding aims of these reforms are to protect building safety and property and to improve the quality of building work. This bill delivers on these aims by requiring a single accreditation scheme for private certifiers containing uniform entry standards for such certifiers, lifting the standards of professional conduct by which private certifiers will be judged through expanding the grounds on which certifiers may be disciplined, expanding sanctions for unprofessional conduct, and helping the public to make more informed choices about certifiers. As I said during my second reading speech, there are several reasons why this bill is an important addition to the way in which we gauge the quality of buildings erected by the construction industry in New South Wales. I commend the bill to the House and reject the Opposition's amendment. I thank the honourable member for Illawarra for her contribution to debate on the bill.

Motion agreed to.

Bill read a second time.

Clauses 1 to 3 agreed to.

Mr CHRIS HARTCHER (Gosford) [8.36 p.m.]: I move:

Page 5, clause 4. Insert after line 11:

(10) Sections 40 and 41 of the Interpretation Act 1987 apply to an accreditation scheme adopted by the Minister under this section in the same way as they apply to statutory rules within the meaning of that Act.
I alluded to this amendment in my speech during the second reading debate and the Minister referred to it in her speech in reply. The amendment makes the rules of the accreditation scheme subject to the scrutiny of Parliament in the same way as other decisions of government made by way of regulation or statutory rules are accountable to Parliament and subject to its scrutiny. It is absolutely extraordinary for the Minister to say that the process is transparent and accountable when she is not prepared to allow Parliament to exercise its traditional oversight role under the Westminster system. As I told the House, the Coalition will maintain its position on this amendment not just in the Legislative Assembly but also in the Legislative Council. On behalf of the Legislative Council, I take exception to the Minister's frivolous comment comparing the Legislative Council to heaven. The Legislative Council does not make, and never has made, any claim that it is heavenly. The Legislative Council claims only to be a House of review within the New South Wales Parliament.

The honourable member for Burrinjuck referred to the report of the Legislation Review Committee on the bill and correctly pointed out—as I did on behalf of the Coalition—that the Government is trying to conceal from the public the rules it makes through its accreditation process. If the Government has nothing to hide, if it is determined to protect the consumer, to be fair to the building industry and to be consultative, it will agree to this amendment because it will have a defensible position in either House of Parliament if a disallowance is moved. But if the Government wishes to act in secret, if it does not wish to consult or be accountable and wishes simply to have its own way at any cost, it will not agree to this amendment and seek to exempt itself from public and parliamentary scrutiny.

One of the fundamental precepts upon which this Parliament exists is that it is the oversight body of government activity and legislation in this State. To deny to either House of Parliament its traditional role of oversight is, quite bluntly, an attempt to avoid the process of the Westminster system. The Minister's response in rejecting the amendment lacked conviction. She simply read her notes prepared for her by her advisers, as she did with her second reading speech. However, her advisers did not address the fundamental issue of parliamentary accountability. She simply stated that it was a transparent process the Government was establishing. The process put forward by the Opposition is the most transparent of all. There is nothing more transparent and public than having government decisions subject to review by either House of Parliament.

If the Government is genuine it will accept this amendment. If the Government is being disingenuous in its whole approach to this legislation it will refuse it. The decision upon this amendment is a test of the Government's and the Minister's sincerity that will stand on the parliamentary record in this House and in the Legislative Council. I am not surprised because the whole conduct of planning under this Government has been one long sad story of attempted concealment, which was brilliantly shown by the Legislative Council inquiry into designer outlets at Orange Grove when Labor Party member after Labor Party member was exposed with their grubby little fingers in the pie. They made decisions not on the basis of sound planning, but on behalf of their own internal party politicking and, dare I say, their own fundraising tactics.

Had the Orange Grove matter been subject to parliamentary accountability and scrutiny the Minister would not have made the decision she made. Were this legislation not subject to parliamentary scrutiny then more issues like Orange Grove will arise. One thing that Orange Grove established was that this Government cannot be trusted when it operates in scrutiny. The only way it can be trusted is when it is dragged into the light of public accountability and scrutiny. The body that acts for public accountability and scrutiny is the Parliament of New South Wales. Accordingly, the Opposition insists upon the amendment.

Ms DIANE BEAMER (Mulgoa—Minister for Juvenile Justice, Minister for Western Sydney, and Minister Assisting the Minister for Infrastructure and Planning (Planning Administration)) [8.42 p.m.]: This time the honourable member for Gosford referred to Orange Grove with only a slight smirk as opposed to the huge grin that he showed last time. I commend the honourable member for Gosford for a far more convincing performance because the first time it took him 3 minutes and this time at least 2½ minutes to mention Orange Grove. The Government rejects this amendment for the reasons outlined by me. The Government requires the scheme to be flexible and it must be exhibited to the public. It is mandatory under the provisions of this bill for the scheme to be exhibited, unless a change is of a very minor nature. We must take comments into account. The regulations as proposed by the Opposition do not need to be exhibited. The Government is taking it one step further and putting it out to public consultation. I remind the honourable member for Gosford that the Office of Fair Trading sets the criteria for qualifications, experience and examinations et cetera for someone to be issued with a builder's licence. The honourable member for Gosford seems to forget that the Office of Fair Trading administers the licensing scheme. The Government rejects this amendment.

Mr CHRIS HARTCHER (Gosford) [8.44 p.m.]: It is extraordinary that the Government, when pleading its case, says that the Office of Fair Trading will set the criteria. Because that office is a government body, the Government will be appealing to itself and saying, "I can be trusted because I am honourable." There is no reason to believe the Office of Fair Trading is any more honourable in its administration practices than the Department of Infrastructure, Planning and Natural Resources or any other government department. The Minister said that the Government does not want to be subject to parliamentary scrutiny so that it can be flexible, that is, so that it can play games. What does flexibility mean when the Government is not subject to parliamentary scrutiny? It means the Government can play favourites and discriminate between different people and play the game exactly as it likes, without any parliamentary or public accountability.

The most significant point against the Minister is her comment that once the rules are exhibited the Government is required to take into account public comment. Yes, in exactly the same way the Government took into account the comments of, or consulted with, the Master Builders Association [MBA], and in the same way that the Minister has not answered the comments in the letter from the MBA that I read. So much for exhibiting, consulting and taking into account. The Government has no intention of taking into account any comment that is contrary to its own predetermined wishes. Accordingly, the Minister, her department and the Office of Fair Trading have no credibility on this issue. The Opposition insists upon the amendment.

Question—That the amendment be agreed to—put.

The Committee divided.

Mr Aplin Mr Armstrong Mr Barr Ms Berejiklian Mr Cansdell Mr Constance Mr Draper Mrs Fardell Mr Fraser Mrs Hancock Mr Hartcher Ms Hodgkinson

Mrs Hopwood Mr Humpherson Mr Kerr Ms Moore Mr Oakeshott Mr O'Farrell Mr Page Mr Piccoli Mr Pringle Mr Richardson Mr Roberts Ms Seaton

Mrs Skinner Mr Slack-Smith Mr Souris Mr Stoner Mr Tink Mr Torbay Mr J. H. Turner Mr R. W. Turner Tellers, Mr George Mr Maguire

Ms Allan Mr Amery Ms Beamer Mr Black Mr Brown Ms Burney Miss Burton Mr Campbell Mr Collier Mr Corrigan Mr Crittenden Ms D'Amore Mr Debus Mr Gibson Mr Greene

Ms Hay Mr Hickey Mr Hunter Ms Judge Ms Keneally Mr Lynch Mr McBride Mr McLeay Ms Meagher Ms Megarrity Mr Mills Mr Morris Mr Newell Mr Orkopoulos Mrs Paluzzano

Mr Pearce Mr Price Dr Refshauge Ms Saliba Mr Sartor Mr Scully Mr Shearan Mr Stewart Mr Tripodi Mr Watkins Mr Whan Mr Yeadon Tellers, Mr Ashton Mr Martin

Mr Brogden	Mr Bartlett
Mr Hazzard	Mr Gaudry
Mr Merton	Mrs Perry

Question resolved in the negative.

Amendment negatived.

Clause 4 agreed to.

Clauses 5 to 97 agreed to.

Schedules 1 to 3 agreed to.

Bill reported from Committee without amendment and passed through remaining stages.
Debate resumed from an earlier hour.

Ms KATRINA HODGKINSON (Burrinjuck) [8.58 p.m.]: The Occupational Health and Safety Amendment (Workplace Deaths) Bill is unnecessary, and the Opposition continues to oppose it. The bill will amend the Occupational Health and Safety Act 2000 to make it an offence for a person who owes a duty under part 2 of that Act to engage in reckless conduct that causes death at a workplace. I will concentrate on the term "reckless conduct" a little later in my presentation, a matter dealt with most adamantly by the honourable member for Lachlan earlier this evening when speaking to this very same bill.

The bill amends the Criminal Appeal Act 1912 to provide for a right of appeal to the Court of Criminal Appeal when a person has been convicted and sentenced to imprisonment by the Industrial Relations Commission in Court Session for the proposed new offence. The Occupational Health and Safety Legislation Amendment (Workplace Fatalities) Bill was strongly opposed by the Coalition, the business community and farmer organisations. Our position was declared publicly in December 2004 and reaffirmed in January 2005. Since then the Government has drastically amended the bill to remove many of its extremely objectionable features. But the bill continues to deny trial by jury and allows the Industrial Relations Commission to sentence offenders to gaol for up to five years. Probably no bill has caused such hysteria in my electorate as the Occupational Health and Safety Legislation Amendment (Workplace Fatalities) Bill.

In December last year the Opposition held a summit and invited key industry leaders. At the time the business community was so outraged that the summit was extremely well attended. It was organised by the honourable member for Gosford and the then shadow Minister for Commerce, Chris Hartcher. The response to the bill from industry and employee groups across the State was overwhelming. We recognise that the bill has been watered down significantly, but it continues to pose many concerns, particularly for those in rural areas. I commend the New South Wales Farmers Association for picking up on many of the more disparaging points in the bill. The association hosted many forums across the State, including two in the Southern Tablelands—Young and Yass. I attended the forum held by Jock Laurie and the industrial section of the New South Wales Farmers Association, which was held in Yass a couple of months ago. I commend Jock Laurie for his professionalism in his approach and presentation. Retailers and farmers attended the well-convened and well-attended forum. Subsequently, the Hon. John Della Bosca amended the bill.

When the workplace fatalities bill was introduced, I was approached by many different employers from different fields throughout my electorate and right across the State who were passionate about my representing them in this place. I have received literally hundreds and hundreds of letters on the bill and I will place a small smattering of them on the record. I received so many that I could not possibly read out the names and addresses of everyone who wrote to me, but I will outline some of the key concerns expressed by several of the organisations and individuals. I received a letter from the Charter Vessel Association of New South Wales located at 49 Countess Street Mosman, signed off by David C. Cribb, the Chief Executive. The letter stated:

Workplace fatalities have declined by 43 percent in the last 12 years (according to the WorkCover website); it is unlikely that sending people to gaol will increase this rate of improvement.

The IRC has been finding against employers consistently, even though injured employees have ignored their training and have bypassed safety barriers.

His letter explained in more detail that the Occupational Health and Safety (Workplace Fatalities) Amendment Bill significantly increases penalties for employers and managers, including gaol penalties, introduces rights of appeal to a higher court from the Industrial Relations Commission and continues to assume the employer and manager are guilty until they prove themselves innocent, which is very much the wrong way around. He went on to say that the consequences, according to the WorkCover web site, are that industrial fatalities have decreased by 43 per cent in 12 years, from 244 in 1988-89 to 139 in 2000-01, which is not a bad decrease. He questioned whether gaol sentences would increase this rate of decline and suggested that they would not. He asked what would happen to small businesses if the proprietor went to gaol and presumed that they would close down with other consequent loss of employment, which would be devastating. He asked what would happen to the dependants of the gaoled employer. The letter continued:

This measure will make NSW even less competitive compared to other States.

If this legislation became law, at least 139 persons pa could go to gaol for up to five years, at the current fatality rate, this means that up to five times the number would be away from the management ranks of businesses at any point in time, 695; that number could well be over 1,000 and more than one from any employer might be convicted.

About 20 people die in NSW each year on the railways, three Waterfalls every year! As a consequence, over a five-year period, a large percentage of rail's managers would not be at work.

What constitutes reckless conduct? Earlier we heard an excellent contribution from the honourable member for Lachlan. Mr Cribb provided a couple of examples in his letter, which continued:

An employee of Thiess was supervising a coal conveyor on night shift when he noticed a build-up of material under the belt. He removed the guard which prevented access, reached in to clear the material and lost his arm. The Commission found against Thiess.

An employee on a farm was operating a Case combine harvester. This machine has a large, open bin built into the top which receives the grain and which has two horizontal augurs (screw feeders) in its floor to pass the grain across and out into a waiting truck. The employee mounted the machine and, despite signage and training, entered the bin to remove the grain packed into the augur channels—with his foot, which he lost. WorkCover is prosecuting the farmer, the machinery dealer and Case in America. It has not yet gone to the Commission.

He stated that two mining companies in an upcoming court case involving the loss of an employee in an industrial accident have gone to the Supreme Court to complain that the onus of proof is the wrong way around. Mr Cribb urged us not to support the bill. I received correspondence from Rod Owens, the Dealer Principal of Geissler Motors, which stated:

I'm sure you would be aware of the State Government's proposed New Workplace Death laws.

The letter went on to outline several concerns that other members have raised. He is extremely concerned about the impact of the bill on employers. I received a copy of a letter from Brian Osborne of Ellendon in Bungendore that he sent to the Premier, which stated:

I write in respect to the proposed amendments to the OH & S legislation regarding workplace fatalities.

The possibility of a fatality in the workplace, or at any place for that matter, hangs over us all as something like the sword of Damocles, something that we would prefer to have totally eliminated from our presence, yet something that we have to realise cannot, in absolute terms, be so eliminated in a functioning society.

As a lifelong farmer I am so far fortunate as to not having had a fatality under my jurisdiction.

He wrote something that would be echoed in the thoughts of many farmers, many rural people and many, if not all employers, in their right mind, across the State:

I would be quite shattered if I had, and such would for me at any rate be more than enough punishment without having an interior view of Long Bay's walls for any retirement enjoyment that I could muster under the circumstances.

Farming, if I may refer to that occupation in particular, of necessity may not have the most favourable record in safety statistics, but it is arguably the best of all outlets for young and adventurous people who like to have a job without being cocooned.

He went on to say many other things, but time precludes me from outlining everything that he said. I received correspondence from Edward Kerry Thompson and Ruth Lynette Thompson, 35 Meehan Street, Yass, who also are extremely concerned about the workplace fatalities bill, which stated:

The bill creates an area of concern for all employers, due to the capacity of Trade Unions to prosecute employers under the Act ..

That was a point emphasised by the shadow Minister because the trade unions will be able to collect up to 50 per cent of the fine imposed. The letter goes on to state:

This creates a situation of moral hazard, in which the decision to prosecute may not be guided by a test of public interest, but rather by industrial objectives and financial reward.

I received a letter from Simon Reading of Wambidgee in Gundagai, who expressed his concerns about trade unions being entitled to up to 50 per cent of the fine. He makes some very salient points in his submission to me. He states:

It is a sad fact that many farmers and their families have lost their lives in what is in its nature an unpredictable profession. We are the first to say lets do all that is possible to make farming safer. It is our lives and those of our families at risk. The issue is of utmost importance to us, which is a good reason for the lawmakers to hear our protests. Make it safe, but also make it reasonable and fair.

The underlying motivation of the writers of many of the letters I have received is a desire not to have fatalities in the workplace. Nothing is more soul destroying than a tragedy that could have been avoided. But we should not unnecessarily take the next step of gaoling employers who are not at fault. I received correspondence from Tony Medway of Garway at Dalton, who expressed his concern about the bill. I received correspondence from A. Geoffrey White from the Mundango Pastoral Company, who states, "We are very conscious of the need to have a safe environment on the property ... ". Many of the people who have written to me represent rural enterprises. I have also received a limited quantity of correspondence from retailers and larger employers, but the overwhelming majority of letters I received was from rural enterprises.

I received correspondence from the New South Wales Farmers Association Gundagai District Council under the signature of Ken Skinner, who is the honorary secretary-treasurer and who lives at Donna Valley via Coolac. His letter states that at the annual general meeting of the Gundagai district council on 5 April, the council discussed the implications of the State Government's workplace fatalities bill. He was asked to let me know that all of the members of the council view the bill with great alarm and voice their strong opposition to it. He said they would appreciate my support in this regard.

I received correspondence from Lorraine Wysman of PRD nationwide at Tumut, who has been a real estate business operator in the Riverina area over the past 20 years. She has provided employment for many people and currently employs six. She takes her corporate and community responsibilities seriously and has supported the local community in many ways, in particular by sponsorship and more specifically as a Rotarian, as a member of the Industry Advisory Committee, the Tumut High School Advisory Committee, the Tumut Development Corporation and also as a member of the All Saints Anglican Parish Council. She is very concerned about the underlying motivation of this bill and has asked me to express her concerns.

Hugh Cook from Little Burra at Yass wrote to me to express his concerns about the legislation, as did M. Burns and P. Horsley of the Yaven Pastoral Company on the Snowy Mountains Highway via Adelong. I also received correspondence from Jim Beale from Tumut, who is very concerned about the legislation and who expressed concern on behalf of 130 members of his local branch of the New South Wales Farmers Association. Gerald C. Spackman on behalf of Samuel, Martin and Rogerson Pty Ltd and Graeme Tickner on behalf of the Gundagai Shire Council have written to express their concerns. Bill Tooth has written on behalf of the Longreach Pastoral Company of Marulan to express concern. I also received correspondence from Rachael and Peter Foley of Fairview at Cullerin and Byll Swan of Mirrabooka at Murrumbateman. The list of correspondence goes on and on. The Opposition will continue to oppose this legislation because our electors ask us to do so.

Ms NOREEN HAY (Wollongong) [9.13 p.m.]: Throughout the debate on this bill, the Opposition has provided example after example of incidents that in many cases were simply unavoidable. All honourable members are aware of those types of incidents. However, it is agreed by business, unions and community leaders that among employers there are reckless and scurrilous operators as well as those who are referred to as shonks. Examples of recklessness in some workplaces have been provided by the Construction, Forestry, Mining and Energy Union [CFMEU]. Whether the Opposition likes it or not, the CFMEU represents a large work force in a dangerous industry. Among others, the Transport Workers Union represents a large rural and metropolitan work force and has provided many examples of injuries that workers are exposed to through sheer recklessness, and in some cases that was deliberate. I led a delegation from the Illawarra Business Chamber to consult the Minister on the draft exposure bill. The Illawarra Business Chamber was pleased with the provisions that ultimately were to be presented to the Parliament, and said so publicly.

Mr David Campbell: The Illawarra Business Chamber supports this legislation.

Ms NOREEN HAY: As I was just about to say, and as my colleague the Minister for Regional Development, Minister for the Illawarra, and Minister for Small Business correctly states—

Mr Paul McLeay: And the honourable member for Heathcote.

Ms NOREEN HAY: As well as the honourable member for Heathcote, the Illawarra Business Chamber supports this legislation. Although some people would have preferred much stronger provisions and others consider that the bill goes too far, there is no doubt in my mind, as a result of many discussions I have during the consultation process, that the purpose of this legislation is to target employers who deliberately put their employees' lives at risk. The legislation is not intended to apply to generally occurring, ordinary and unavoidable accidents. For those reasons I am pleased to speak in support of the bill.
Workplace safety is a matter that should concern us all because a workplace death is something that could potentially affect us all. This bill is targeted at eradicating from the workplace those who have little or no concern for the safety of others in the workplace. The bill is a product of extensive consultation with unions, employers and individuals. Indeed, the level of interest that this bill and its predecessor have generated is testament to the level of concern in the community about workplace safety and needless workplace deaths. Therefore, the extent to which the Government has invited discussion and debate through consultation on this bill and on workplace deaths generally needs to be recognised and applauded. A great deal of discussion has taken place in the preparation of this bill. As I indicated earlier, communication has been ongoing. Delegations have met with the Minister and extensive public meetings have been held to ascertain what measures the community will support. As I stated earlier, the bill is supported by all the groups that have been involved in the consultation process.

Mr ACTING-SPEAKER (Mr Paul Lynch): Order! The honourable member for Gosford and the honourable member for Murrumbidgee will come to order. I note it is after dinner, but they will still come to order.

Ms NOREEN HAY: Many employer organisations, such as Australian Business Ltd and the Australian Industry Group, as well as the Illawarra Business Chamber, have acknowledged and appreciated the opportunity to make full submissions and engage in discussions on the bill. The New South Wales Farmers Association has also publicly expressed its thanks for the opportunity to be heard fully in relation to the bill. The extensive consultation has ensured that the bill has been met with general approval. The bill before the House has been welcomed by unions, the New South Wales Farmers Association, the State Chamber of Commerce, Australian Business Ltd, the Australian Industry Group, the Illawarra Business Chamber, the Law Society and small businesses.

The objective of producing a bill that will target those who are most culpable in the workplace has been achieved and the positive response from stakeholders reflects that. The positive response to the bill from the community shows clearly that anyone who is indifferent to work safety deserves to be punished with the full force of the law. If a person has the requisite culpability under the new workplace death offence, they must be prepared to suffer the considerable penalties. No-one in this day and age can abrogate responsibility for the safety of others in the workplace. It is a responsibility that rests with us all and one that we ignore only at our peril. I take this opportunity to thank all the groups and individuals who contributed to the debate on workplace deaths, including the South Coast Labour Council and the New South Wales Labour Council, who have shaped this bill into an effective and appropriate weapon against those who are indifferent to workplace safety.

Mr Milton Orkopoulos: Like that lot opposite.

Ms NOREEN HAY: Yes, just like those opposite. The consensus in the community is that there is no longer any place for criminally reckless conduct in the workplace. The bill will enforce that view, and I commend it to the House.

Mr MALCOLM KERR (Cronulla) [9.20 p.m.]: This bill—

Mr Paul McLeay: The electoral fatalities bill.

Mr MALCOLM KERR: No, I will not speak about Ian McManus. This is bad legislation; it is misdirected. The honourable member for Heathcote would realise the impact it will have on the light and heavy businesses in the Sutherland shire. Interestingly, the honourable member for Port Macquarie gave a succinct analysis of the bill. He said that it is a bad prescription for a problem that may well exist. What he called "rogue employers" the honourable member for Illawarra called "shonky employers". They may well be a problem.

Mr Milton Orkopoulos: You call them members.

Mr MALCOLM KERR: The honourable member for Swansea should not be so self-conscious; I was not referring to him. When the words "shonky" or "rogue" get an airing in this place he immediately seeks identification. But I was not referring to the honourable member for Swansea. He should sit down and think about new, clear policies in relation to what is going on in this State.

Mr Adrian Piccoli: He should stop interjecting or this will go on all night.

Mr MALCOLM KERR: Yes. I return to the bill. As I said, the honourable member for Port Macquarie pointed out that there is a problem with rogue employers. If there is, it is time that industry, both employers and unions, got together and sorted out that problem, but not make it for general application. Why is this bill wrong? A number of features of the bill are wrong and I will go through them. The first is the onus of proof. Honourable members, even those opposite, would be aware that the onus of proof in ordinary criminal cases rests with the prosecution. That is something that the honourable member for Liverpool, who is in the chair, would welcome in the ordinary course of his previous career: a person is innocent until proven guilty.

Mr Paul McLeay: Tracie Sonda would agree with this bill.

Mr MALCOLM KERR: No, Tracie Sonda is still innocent until proven guilty. Even she is entitled to that, but we will not go down that track. Under existing law—and this will come as a revelation to members who spoke early in this debate—employers have a statutory duty of care towards their employees and are required to show that all reasonable steps are taken to prevent accidents causing death. As the honourable member for Port Macquarie said, that is how it should be. As the honourable member for Wollongong pointed out, deaths occur in the workplace. Effectively the bill reverses that onus of proof by making the employer—a term which is defined to include supervisors and managers—prove his or her innocence.

We are not talking about rich capitalists, but about people in the workplace. That change is a total repudiation of the common law. The bill does not allow for any defence that an employee was negligent, careless or breached instructions. I would have thought that they are highly relevant considerations when a death has occurred and that they would be taken into account in the interests of justice. I emphasise that. In the interest of justice those factors should be taken into account. The bill provides for the increase of penalties because of aggravating factors, but does not allow for mitigating factors. Once again, as the honourable member for Liverpool would be aware, that is a total repudiation of the rule of law. The bill allows for a person to be imprisoned for up to five years without trial by jury. Again, that is contrary to the accepted and well thought out principles of justice.

Mr Milton Orkopoulos: Like Guantanamo Bay.

Ms Noreen Hay: You don't mind locking up asylum seekers.

Mr ACTING-SPEAKER (Mr Paul Lynch): Order! Government members will come to order. It will be quicker and less painful for all of us if interjections cease.

Mr MALCOLM KERR: Yes, I appreciate that. Those interjections were particularly painful, and I do not intend to respond to them. Although a magistrate sitting without a jury may impose a prison sentence, that is restricted to a maximum of two years. Trade unions are not only allowed to bring prosecutions with the consent of the Minister but are encouraged to do so by their entitlement to receive 50 per cent of the fine. That is justice for sale under the bill, and that is contrary to the principles of justice. Appeals to higher courts are limited. We have an appeal provision because people were prepared to fight the particularly brutal provisions of the original bill. There will be no appeal against fines, only against prison terms. Again, that is contrary to the principles of justice. An appeal can be lodged in the District Court against fairly insignificant fines imposed in a magistrate's court, but the bill provides for fines of up to $1.65 million, and no appeal can be lodged.

Even the honourable member for Heathcote would agree that losing more than $1 million is a significant loss. But he would have to accept it if, when he leaves here, he sets up a business and someone brings a prosecution against him under this bill. These are serious considerations and they show how injustice can be occasioned and what an unjust bill this is. The Sutherland shire has a large number of businesses and I look forward to hearing the dulcet tones of the honourable member for Heathcote when he puts all their fears about the bill to rest. He will address all of those matters. I will refer to some representations made on this side of the House.

Mr Paul McLeay: The electoral fatalities bill.

Mr MALCOLM KERR: Yes, the electoral fatalities bill, with Ian McManus in brackets. I understand what the honourable member for Heathcote is putting forward. I will not be tempted to go down that track, or talk about the Bundeena branch of the Australian Labor Party, or about how the secretary was removed with very little notice. Poor old fellow, he was 80 years old, but I will not be tempted, I will be firm. I will not talk about the annual general meeting of the Bundeena branch of the Australian Labor Party. Even if the honourable member for Heathcote twists my arm or tortures me, I will not talk about it. I will not name employers who might be subject to little visits from unions, but I will mention the Gundagai Shire Council. Recently that council wrote a letter, which stated:

Council was recently approached by a local orchardist … regarding his concerns in relation to the NSW OH&S Legislation Amendment (Workplace Fatalities) Bill 2004. … employs between twenty and thirty people at various times of the year and he is so concerned about the possible ramifications of the Bill that he has advised he will close his orchard operation if it is enacted. Obviously such a move would be most undesirable for the Gundagai community and economy.

Presumably other employers feel much the same as … and if even only a few respond in the manner he has indicated the legislation will produce a result which is totally counterproductive and presumably unintended.

Any legislation dealing with workplace fatalities should require employees and employers equally to take responsibility both for the protection of employees and to ensure that other employees are not injured by the negligence of an employee. Similar penalties should apply. Most small business employers work along side the employees.

I am pleased to see the honourable member for Illawarra in the Chamber in such good spirits. I hope that she is making a full recovery. Another employer, a motor dealer, wrote to me. I am sure that all honourable members have motor dealers in their electorates who will be affected by this legislation. He said:

I have no problem with looking out for my employees. They have every right to expect safe workplace however accidents will and do happen.

The honourable member for Wollongong said earlier in debate that accidents do happen. She is sitting next to one. The motor dealer went on to state:

And for sure no one wants anyone to be injured or worse whilst in their employment.

I am aware that employer groups throughout NSW are incensed at the direction this legislation is taking us. It is hard enough doing business in Australia today without providing another disincentive to employ people.

I have a question.

The NSW Government is the largest employer group with Bob Carr at its head. In the event (of an inevitable death) of a public service employee will legislation ensnare him and if not why not?

I look forward to the Minister's response to these issues. This is unjust legislation. We are united in wanting to ensure that we have safe workplaces in which there are no injuries or accidents.

Ms Noreen Hay: Then you should be supporting the bill.

Mr MALCOLM KERR: The honourable member says that the Opposition should be supporting the bill. We should support strengthening existing industrial legislation.

Ms Noreen Hay: New South Wales legislation?

Mr MALCOLM KERR: All of it. This bill will result in a great deal of injustice as it repudiates the principles people went to war believing they were protecting—the rule of law and human rights. That is what we are talking about. They wanted to live in a society where people were presumed innocent, in a State that did not take away that right.

Ms Noreen Hay: If you are an asylum seeker in this country you get locked up without a trial.

Mr MALCOLM KERR: Who would be locked up without a trial?

Ms Noreen Hay: Asylum seekers in this country.

Mr MALCOLM KERR: I do not want to engage in a debate about asylum seekers but if Government members want to talk about that, the Keating Government introduced permanent detention in New South Wales.

Ms Noreen Hay: The Federal Government locks up families without a trial.

Mr MALCOLM KERR: Those people have recourse to tribunals and to legal representation. Those people have more rights than an employer has under the bill. I am pleased Government members brought up that issue. These are serious matters. The bill should be withdrawn and we should look at strengthening industrial legislation to resolve these problems.

Mr David Campbell: There was a draft exposure bill.
Mr MALCOLM KERR: This is not draft legislation.

Mr David Campbell: We had a draft exposure bill. You had an opportunity for consultation and you didn't take it.

Mr MALCOLM KERR: There has been consultation in relation to this bill, but many of the provisions in it are being imposed on employers. We have only to ask those parties that were involved in consultation to establish whether the Government arrived at consensus. It consulted the community but it did not arrive at consensus, which is a pity because everybody has the same objective. All the people with whom the Government consulted had a vested interest in ensuring that deaths and injuries did not occur in the workplace. Before the introduction of this bill the number of fatalities was decreasing, which is good news for everybody. That is something of which we are all in favour. The Government introduced legislation that does not properly address the problems. Everybody was prepared to negotiate, to come to a consensus and to take preventive measures to ensure that deaths and injuries were minimised. The bill is bad news for large and small businesses in the Sutherland shire, as well as in the rest of the State.

Mr ADRIAN PICCOLI (Murrumbidgee) [9.35 p.m.]: The honourable member for Hawkesbury, who has guests in the Chamber this evening, made a terrific contribution to debate on the Occupational Health and Safety Amendment (Workplace Deaths) Bill. He did such a terrific job that there is not much point in me making a contribution. The bill is extremely important for businesses and for the future prosperity of small businesses in New South Wales. Recently we have seen fairly gloomy figures comparing the economy in New South Wales with the economy in other States. There are a number of reasons why that comparison was not particularly flattering.

The legislative and regulatory regime in New South Wales is part of the reason why our economic growth is not as good as the economic growth in other States. This legislation will only make it worse. Earlier in debate a number of speakers said—and I agree with them—that this issue has generated intense lobbying by a large number of people. Since the first draft bill was presented late last year in the upper House a number of people have contacted my office about the impact of this legislation. They are concerned about how it will impact on their businesses and on their ability to employ people. Forums have been held across the State, industry groups have met with the Minister and they have lobbied members of Parliament.

Ever since last year the process has been intense. I was Opposition spokesperson for mineral resources when the legislation was introduced in the upper House. The Minerals Council contacted me and said, "This legislation will be a disaster for mining", and it gave obvious reasons for that. Since then there has been a groundswell of objection from small businesses about the impact of this bill. I give that background to show why so many people in New South Wales oppose this bill. Businesses that employ people have no faith in WorkCover or the way in which the Industrial Relations Commission administers the Occupational Health and Safety Act. At the end of the day that is why people are so opposed to this bill.

Many members have said that employers do not disagree—I do not think any reasonable person would disagree—with the need to make our workplaces as safe as possible. That is a fundamental principle to which all good people should adhere. No-one objects to the aim of the legislation, which is to reduce the number of people tragically killed in the workplace. But employers have no faith in the legislation because they have no faith in WorkCover. Many employers have had bad experiences with WorkCover and the Industrial Relations Commission in proceedings brought under the Occupational Health and Safety Act. Other members have given examples from their electorates about cases that have had horrendous outcomes.

I have spoken before in the House about an incident involving a citrus farmer in Griffith who for some years had employed a husband and wife to pick oranges on his farm. The farmer had probably done more than most employers to comply with the legislation. He gave his employees a list of tasks and satisfied the requirements of the Occupational Health and Safety Act as much as any employer could. The farmer gave his employees an induction course on the farm and gave them directions about where to park vehicles and how to operate machinery. In short, his staff ticked all the boxes they were required to tick. One morning the employee arrived at the farm, parked his car in the correct spot near the shed and went off to pick oranges. He later left the farm to go into town but upon his return he parked his car not near the shed but at the end of the paddock, where he had been told not to park.

An hour or so later the employee, driving a tractor towing a little trailer with a couple of bins of oranges, reached the end of a row of trees. But he could not turn around because his car was in the way. So he got down from the tractor to move the car but something happened—perhaps the tractor was still moving as he alighted or he bumped the tractor into gear as he jumped off—and the tractor started to move towards his car. The employee reached for the steering wheel to steer the tractor away from his car but he was caught and tragically run over and killed. There is no doubt that that was a terrible tragedy for the man's family and for the family business that employed him. The farmer was subsequently prosecuted by WorkCover, found guilty and fined about $80,000. The ultimate frustration for that employer is that he could not have done more to prevent the accident. WorkCover told him during the hearing that he should have employed a supervisor to oversee the orange pickers. I assure those who are not familiar with the business of picking oranges that a supervisor could have prevented that accident only if he had been sitting on the tractor with the employee. The assertion was totally impractical.

Stories such as that and others we have heard during this debate explain why people have no confidence in WorkCover or in the way that the Occupational Health and Safety Act is applied. This amending bill introduces increased penalties, including imprisonment, and people are fearful that it will be interpreted as badly as the current legislation. If the Occupational Health and Safety Act had been interpreted and applied differently, giving fair consideration to the compliance efforts of employers, and if employers believed the system was reasonable, I do not think they would have objected to this new legislation as much as they have. There are examples of clear negligence and others where there is little evidence of negligent behaviour, but the employer is convicted in almost 100 per cent of cases involving a workplace death. Employers believe they will continue to be convicted under this legislation but the consequences will be far more severe. That is why employers have such a problem with this bill.

I fear for the businesses in my electorate. By their very nature, businesses that operate in the primary and secondary sectors involve dangerous practices. Farming is dangerous. Thirty children die in Australia every year in farm-related accidents. The electorate of Murrumbidgee depends on the farming sector and on secondary industry. Barters Industries operates out of Griffith and Pace Farm has egg processing businesses in West Wyalong and Griffith. My electorate encompasses the largest winegrowing region in New South Wales, and winemaking involves the use of heavy machinery that is quite dangerous. My family grows 350 acres of onions every year and we employ many people. However, my family is seriously questioning whether it is worth the risk employing anyone in case a death occurs. No-one disagrees that employers who are negligent or reckless should be prosecuted. But employers recognise that they will always be prosecuted for deaths in the workplace and, based on the history of the way in which the Occupational Health and Safety Act is applied, will always be found guilty. That is the crux of the problem.

I have counselled my father and brother not to grow onions any more because it is not worth the risk. That would have pretty significant consequences for the 100 or 150 people we employ every summer. My father is 72 years old; he does not have to keep working—he continues the farm more or less as a hobby. But his 150 employees and those of Casella Wines, De Bortoli Wines, Barters, SunRice and farmers will suffer the consequences of legislation such as this. It is a great incentive for every business in the primary and secondary sectors to mechanise. My good friend Victor De Bortoli recently returned from overseas, where he saw huge mechanised wine storage warehouses with not a single employee. It would involve a massive investment on the part of De Bortoli Wines, but it is seriously considering that option because it is not worth the risk of employing someone to work in a shed or drive a forklift. Under the Occupational Health and Safety Act, employers can do next to nothing to prevent every potential accident. If De Bortoli moves in that direction, forklift driver and warehouse jobs will be lost.

Mr Daryl Maguire: It's a knock-on effect.

Mr ADRIAN PICCOLI: Yes, there is a multiplier effect. The history of WorkCover and the way in which the Occupational Health and Safety Act has been applied makes employers feel very uncomfortable about this amending bill. Employers know that they will always lose if prosecuted. They are afraid that if they are prosecuted under this bill they will not only lose their case but potentially spend five years in gaol. That is the real problem with the Occupational Health and Safety Act. If this legislation is passed by this Parliament, I call on it to look seriously at the Occupational Health and Safety Act and the Industrial Relations Commission and the way employers are being prosecuted. The Government should give some semblance of fairness and reasonableness to employers who will embrace this type of legislation. Employers, as much as anybody else, want a reduction in the number of people who are killed in the workplace.

Mr DAVID CAMPBELL (Keira—Minister for Regional Development, Minister for the Illawarra, and Minister for Small Business) [9.50 p.m.], in reply: I acknowledge and thank all honourable members who took part in this debate. Opposition members are clearly not talking about the Occupational Health and Safety Amendment (Workplace Deaths) Bill, because they have not grasped the provisions of this legislation. In a ministerial statement on 5 May, the Minister for Industrial Relations announced the release of the Occupational Health and Safety Amendment (Workplace Deaths) Bill. This bill is the result of a great deal of consultation with both unions and employer groups. The consultation process has resulted in a bill that will ensure that the full force of the law will apply to rogues in the workplace who are indifferent to and disregard basic safety obligations that result in the death of a vulnerable worker.

The bill has the general support of both employers and unions. That support reflects the thorough and comprehensive nature of the consultation process undertaken by the Government. The bill represents the most effective means of targeting those who are most culpable and deserving of greater degrees of punishment. The bill provides a court with the full scope of penalty to deal with the various degrees of culpable behaviour. The community can be assured that reckless behaviour in the workplace leading to death will be punished appropriately. The bill balances the community's concern for justice and appropriate penalties with the interests of the defendant liable to those substantial penalties. The bill protects the interests of the defendant by providing certain new avenues of appeal and providing an additional defence, that of reasonable excuse.

Those elements of the bill will ensure that the workplace death offence will operate only on those most deserving of punishment. I reiterate that right-minded employers, and others who demonstrate a concern for occupational health and safety, will have nothing to fear from this bill. To be found guilty of the new workplace offence requires a high degree of criminal culpability and anyone found guilty will certainly deserve any sentence the court hands down. The views of all stakeholders have been well considered and as a consequence the bill is appropriate. The bill is the most effective form of achieving the goal of safe workplaces by punishing those few who are indifferent to the health and safety of those at the workplace. Once again the Government thanks those unions and employer groups who have contributed so constructively to the development of this bill. The community has the right to expect that appropriate penalties and deterrents are in place to ensure that people who leave for work can return home safely to their families and friends. This bill will make all workplaces in New South Wales safer for workers and indeed all of us. I commend the bill to the House.

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

The House divided.

Ms Allan Mr Amery Ms Andrews Mr Barr Ms Beamer Mr Black Mr Brown Ms Burney Miss Burton Mr Campbell Mr Collier Mr Corrigan Mr Crittenden Ms D'Amore Mr Debus

Mr Gibson Mr Greene Ms Hay Mr Hickey Mr Hunter Ms Judge Ms Keneally Mr Lynch Mr McBride Mr McLeay Ms Meagher Ms Megarrity Mr Mills Ms Moore Mr Morris

Mr Newell Mr Orkopoulos Mrs Paluzzano Mr Pearce Ms Saliba Mr Sartor Mr Scully Mr Shearan Mr Stewart Mr Watkins Mr Whan Mr Yeadon Tellers, Mr Ashton Mr Martin

Mr Aplin Mr Armstrong Ms Berejiklian Mr Cansdell Mr Constance Mr Draper Mrs Fardell Mr Fraser Mrs Hancock Mr Hartcher Ms Hodgkinson

Mrs Hopwood Mr Humpherson Mr Kerr Mr Oakeshott Mr O'Farrell Mr Page Mr Piccoli Mr Pringle Mr Richardson Mr Roberts Ms Seaton

Mrs Skinner Mr Slack-Smith Mr Souris Mr Stoner Mr Tink Mr Torbay Mr J. H. Turner Mr R. W. Turner Tellers, Mr George Mr Maguire

Mr Bartlett	Mr Brogden
Mr Gaudry	Mr Hazzard
Mrs Perry	Mr Merton

Question resolved in the affirmative.

Motion agreed to.

Bill read a second time.

Clauses 1 to 3 agreed to.

Mr CHRIS HARTCHER (Gosford) [10.02 p.m.], by leave: I move Opposition amendments Nos 1 and 4 in globo:

No. 1 Page 2, clause 4, lines 10 and 11. Omit all words on those lines.

No. 4 Page 6, schedule 2, lines 1-27. Omit all words on those lines.

I advise the Committee that amendments Nos 1 and 4 relate to the provision of an appeal to the Court of Criminal Appeal. The issue to be decided is whether a corporation or person who has been ordered to pay a heavy fine has the right of appeal to the Court of Criminal Appeal. The bill provides for fines of up to $1.65 million to be imposed upon a corporation and $165,000 to be imposed upon an individual, but denies to such a corporation and individual a right of appeal to the Court of Criminal Appeal. The only appeal allowed in full to the Court of Criminal Appeal is where a penalty of imprisonment is imposed.

The CHAIRMAN (Mr John Mills): Order! The honourable member for Gosford has the call, and all other honourable members will cease conversing.

Mr CHRIS HARTCHER: The decision to be made is whether this Chamber agrees that corporations and individuals who have fines imposed upon them under this bill should have a right of appeal. That right is allowed to every person convicted of a motor traffic offence in this State. If a person is found guilty of a charge of speeding and is fined, and wishes to contest the finding, he or she has a right of appeal to the District Court, even though the fine imposed may be as little as $200. Though the fines provided for under this bill can be as much as $1.65 million for a corporation and $165,000 for an individual, the bill does not allow for appeal to the Court of Criminal Appeal. The only appeal permitted is to the Industrial Relations Commission in Court Session.

The CHAIRMAN (Mr John Mills): Order! There is too much audible conversation on both sides of the Chamber. I ask the Government Whip and the Opposition Whip to speak to members.

Mr CHRIS HARTCHER: It is a fundamental right in our system of justice that those who suffer monetary penalties can subject those penalties to a full judicial review. This legislation allows an appeal where a sentence of imprisonment is imposed, but denies appeal where a fine is imposed. What is the justice in that? There is none. What is the rational for that? There is none. The only possible explanation is that the Government, in response to community concern, reluctantly has granted a right of appeal where sentences of imprisonment are imposed. Yet it remains prepared to deny such a right of appeal where penalties of heavy fines are imposed. That is, fines of up to $1.65 million for corporations are not subject to the right of appeal to the Court of Criminal Appeal. The omissions from the bill proposed by these two amendments will ensure that corporations and individuals fined under the provisions of this bill will have the appropriate right of appeal. It is extraordinary that the Australian Labor Party and the Government would be prepared to present in this place legislation that denies corporations and individuals that fundamental right. It is for those reasons that I have moved amendment No. 1 and consequential amendment No. 4.

Question—That the words stand—put.

The Committee divided.

Ms Allan Mr Amery Ms Andrews Ms Beamer Mr Black Mr Brown Ms Burney Miss Burton Mr Campbell Mr Collier Mr Corrigan Mr Crittenden Ms D'Amore Mr Debus Mr Gibson

Mr Greene Ms Hay Mr Hickey Mr Hunter Ms Judge Ms Keneally Mr Lynch Mr McBride Mr McLeay Ms Meagher Ms Megarrity Mr Morris Mr Newell Mr Orkopoulos Mrs Paluzzano

Mr Pearce Mr Price Ms Saliba Mr Sartor Mr Scully Mr Shearan Mr Stewart Mr Tripodi Mr Watkins Mr Whan Mr Yeadon Tellers, Mr Ashton Mr Martin

Mr Aplin Mr Armstrong Mr Barr Ms Berejiklian Mr Cansdell Mr Constance Mr Draper Mrs Fardell Mr Fraser Mrs Hancock Mr Hartcher Ms Hodgkinson

Mrs Hopwood Mr Humpherson Mr Kerr Ms Moore Mr Oakeshott Mr O'Farrell Mr Page Mr Piccoli Mr Pringle Mr Richardson Mr Roberts Ms Seaton

Mrs Skinner Mr Slack-Smith Mr Souris Mr Stoner Mr Tink Mr Torbay Mr J. H. Turner Mr R. W. Turner Tellers, Mr George Mr Maguire

Mr Bartlett	Mr Brogden
Mr Gaudry	Mr Hazzard
Mrs Perry	Mr Merton

Question resolved in the affirmative.

Amendments negatived.

Clause 4 agreed to.

Clause 5 agreed to.

Mr CHRIS HARTCHER (Gosford) [10.16 p.m.]: I move Opposition amendment No. 2:

No. 2 Page 4, schedule 1 [1], proposed section 32B (1), lines 21 and 22. Omit "summarily before the Industrial Relations Commission in Court Session". Insert instead "on indictment before the District Court or the Supreme Court".

The effect of the amendment is to allow people against whom a gaol sentence can be passed the right of trial by jury. Under this bill a sentence of up to five years imprisonment can be imposed on a person convicted of an offence. That sentence of imprisonment would be passed by the Industrial Relations Commission in Court Session, which operates as a judicial body of a judge or judges and does not sit with a jury whereas in the District Court and the Supreme Court all matters on indictment must be heard by a jury. It is a fundamental right of citizens since Magna Carta that they should not have sentences of imprisonment passed upon them without a finding of a jury of their peers. That right is set out for Federal offences in the Australian Constitution, which states that a trial on indictment must be by jury. Yet the Government is prepared to deny trial by jury to individuals and allow them to suffer the penalty of imprisonment.
Any member of the House who votes for a denial of trial by jury when a person can be sentenced to imprisonment is denying a fundamental civil liberty in our society. It is monstrous hypocrisy for the Australian Labor Party to pretend to stand for civil liberties, but also be prepared to send people to gaol without trial by jury. For the Attorney General to sit in this House and vote for such a measure denies the Attorney General any legitimacy to be the protector of civil liberties in this State. The Attorney General is revealed for what he is, a monstrous hypocrite who would send people to gaol without allowing the right to trial by a jury of their peers. Accordingly, the Opposition is proud to move the amendment and stand up for civil liberties, which will allow the people of New South Wales to judge who stands for the individual and who does not.

Question—That the words stand—put.

The Committee divided.

Ms Allan Mr Amery Ms Andrews Ms Beamer Mr Black Mr Brown Ms Burney Miss Burton Mr Campbell Mr Collier Mr Corrigan Mr Crittenden Ms D'Amore Mr Debus Mr Gibson

Mr Greene Ms Hay Mr Hickey Mr Hunter Ms Judge Ms Keneally Mr Lynch Mr McBride Mr McLeay Ms Meagher Ms Megarrity Mr Morris Mr Newell Mr Orkopoulos Mrs Paluzzano

Mr Pearce Mr Price Ms Saliba Mr Sartor Mr Scully Mr Shearan Mr Stewart Mr Tripodi Mr Watkins Mr Whan Mr Yeadon Tellers, Mr Ashton Mr Martin

Mr Aplin Mr Armstrong Mr Barr Ms Berejiklian Mr Cansdell Mr Constance Mr Draper Mrs Fardell Mr Fraser Mrs Hancock Mr Hartcher Ms Hodgkinson

Mrs Hopwood Mr Humpherson Mr Kerr Ms Moore Mr Oakeshott Mr O'Farrell Mr Page Mr Piccoli Mr Pringle Mr Richardson Mr Roberts Ms Seaton

Mrs Skinner Mr Slack-Smith Mr Souris Mr Stoner Mr Tink Mr Torbay Mr J. H. Turner Mr R. W. Turner Tellers, Mr George Mr Maguire

Mr Bartlett	Mr Brogden
Mr Gaudry	Mr Hazzard
Mrs Perry	Mr Merton

Question resolved in the affirmative.

Amendment negatived.

Mr CHRIS HARTCHER (Gosford) [10.26 p.m.]: I move Opposition amendment No. 4:

No. 3 Page 4, schedule 1 [1], proposed section 32B (2), lines 24 and 25. Omit "a Minister of the Crown or by an inspector". Insert instead "WorkCover".
When this legislation first came before the community in an exposure bill in September 2004, there was considerable community concern about the power of a trade union to institute prosecutions and receive half the fine. That led to an enormous community debate ranging from the New South Wales Farmers Association representing rural Australia through to business and general citizens in the community. The general feeling was that unions had produced this legislation for their own industrial purposes. The Minister announced that he would remove the provision for the purpose of not allowing unions to institute prosecutions, yet in the Labor Party's usual disingenuous and dishonest manner it has included a provision stating that a prosecution can be instituted if it is authorised by the Minister.

Effectively the Labor Party has said to the trade union movement that it will not be able to prosecute, but that if the trade unions apply to the Minister they will be allowed to prosecute. The Labor Party has been caught out. It constantly tries these tricks based on the assumption that everybody is as ignorant as are members of the Labor Party and that other people do not read legislation. Anybody who reads this legislation will realise exactly what it is: a guise for allowing trade unions to bring forward prosecutions.

The CHAIRMAN (Mr John Mills): Order! The honourable member for Gosford has the call. The Leader of The Nationals and the Leader of the House will cease conversing.

Mr CHRIS HARTCHER: Could anyone imagine the Special Minister of State, John Della Bosca, having the moral fortitude to refuse a request by the Construction, Forestry, Mining and Energy Union? Could anyone have difficulty imagining the left wing of the Australian Labor Party demanding its blood money from the Government and demanding the right to prosecute employers? If there is one matter upon which the assembled backbench factions agree, it is the idiom "You scratch my back and I'll scratch yours."

There is Della Bosca, offering deals to the Construction, Forestry, Mining and Energy Union and the Miscellaneous Workers Union, and to all the left-wing unions, that if they do this, if they back this motion at the annual conference, he will authorise the prosecutions. Does anyone doubt the dishonesty of a Government which pretends it has taken away trade union rights to prosecute, and yet allows it by stealth? A section of the Act allows prosecution by stealth; it states that prosecution can be instituted by any person if it is sanctioned and approved by the Minister. The Labor Party is caught out once again in its grubby little deals with the trade union movement. Its sheer grubbiness defies description. The Australian Labor Party is caught out again, but the Opposition moved the amendment with honour.

Question—That the words stand—put.

The Committee divided.

Ms Allan Mr Amery Ms Andrews Mr Barr Ms Beamer Mr Black Mr Brown Ms Burney Miss Burton Mr Campbell Mr Collier Mr Corrigan Mr Crittenden Ms D'Amore Mr Debus Mr Gibson

Mr Greene Ms Hay Mr Hickey Mr Hunter Ms Judge Ms Keneally Mr Lynch Mr McBride Mr McLeay Ms Meagher Ms Megarrity Ms Moore Mr Morris Mr Newell Mr Orkopoulos Mrs Paluzzano

Mr Pearce Mr Price Ms Saliba Mr Sartor Mr Scully Mr Shearan Mr Stewart Mr Tripodi Mr Watkins Mr Whan Mr Yeadon Tellers, Mr Ashton Mr Martin

Mr Aplin Mr Armstrong Ms Berejiklian Mr Cansdell Mr Constance Mr Draper Mrs Fardell Mr Fraser Mrs Hancock Mr Hartcher Ms Hodgkinson

Mrs Hopwood Mr Humpherson Mr Kerr Mr Oakeshott Mr O'Farrell Mr Page Mr Piccoli Mr Pringle Mr Richardson Mr Roberts Ms Seaton

Mrs Skinner Mr Slack-Smith Mr Souris Mr Stoner Mr Tink Mr Torbay Mr J. H. Turner Mr R. W. Turner Tellers, Mr George Mr Maguire

Mr Bartlett	Mr Brogden
Mr Gaudry	Mr Hazzard
Mrs Perry	Mr Merton

Question resolved in the affirmative.

Amendment negatived.

Schedule 1 agreed to.

Schedule 2 agreed to.

Schedule 3 agreed to.

Bill reported from Committee without amendment and passed through remaining stages.

Debate resumed from 24 May 2005.

Mr CHRIS HARTCHER (Gosford) [10.40 p.m.]: The Coalition has a view about this bill. It is not impressed by the way in which the Government is introducing the problems associated with occupational health and safety into the Rural Workers Accommodation Amendment Bill. Everyone believes in rural workers accommodation. Essentially, it has always been a bipartisan measure. Landowners and workers both agree that because of distances, the nature of farm work, and agricultural work generally, where a person is required to work on a farming property for more than a certain number of hours, accommodation should be provided. The Rural Workers Accommodation Act ensured, in a statutory framework, that that accommodation was provided.

However, through this legislation the Government is trying to import occupational health and safety principles, and that is not appropriate. That frustrates the whole purpose of rural workers accommodation, which, as I said, is a simple statutory framework under which workers have been accommodated when they were employed on an agricultural property for more than a certain number of hours. I foreshadow that the Coalition will move the following amendment in Committee:

Pages 6 and 7, schedule 1 line 29 on page 6 to line 24 on page 7. Omit all words on those lines.

The effect of that amendment will be to ensure that the bill does what it was originally intended to do, that is, to provide accommodation for rural workers. Throughout this process the Government has tried to insert WorkCover into the legislation as a governing authority and it has tried to insert occupational health and safety principles. That has been set out by Employers First in its analysis of the bill. Employers First makes the following points:

The Bill is drafted to incorporate the criminal proceedings, absolute liability, deemed guilt and inadequate defences of the Occupational Health and Safety Act 2000 ... The effect of the Bill is to construe the same impossibly onerous OHS obligations to the provision of accommodation as those applying to the place of work. This is unacceptable and it is inappropriate to import notions of perfect safety and absolute liability into any legislation, let alone legislation dealing with the standard of rural accommodation.

The Occupational Health and Safety Act deals with workplaces. There is no problem with that. The Rural Workers Accommodation Act deals with accommodation places. The two are different. A hotel is different from a factory, yet the Government is trying through this legislation, without advising anybody, to merge the two. Employers First goes on to state:

There is no requirement for any additional legislation to ensure the safety and welfare of rural workers in regard to their accommodation. The RWA should simply be amended to retain the requirement to provide accommodation to rural workers who, because of the terms of their engagement, live for more than 24 hours on the premises on which they work, with a minimal code of practice to up-date and simple and practical guidance material for compliance.

Provision of accommodation for rural workers should be determined as a contractual issue or condition of employment and its provision should not be tied … to OHS legislation. Regulating accommodation on "safety grounds" well illustrates the Government's use of OHS legislation to achieve industrial relations objectives.

That is an underlying problem in both the Occupational Health and Safety Amendment (Workplace Fatalities) Amendment Bill and this bill. The Government is following an industrial relations agenda; it is not following an agenda of workplace safety or a rural accommodation agenda. In relation to part 5 Employers First states:

The OHS Act enforcement provisions should not apply to the RWA Act, which should retain inspectors appointed under the RWA Act and regulated by the Office of Industrial Relations. Nor should non-compliance be subject to criminal prosecution. The existing prosecutorial regime for service of notices and proceedings before magistrates in local courts should be retained.

The maximum penalty of 250 penalty units or $27,500 is excessive, particularly given the demanding and unrealistic provisions currently contained in the draft Code as the standard required to meet the duty of provision of "suitable" accommodation. It is also excessive in relation to contravention of a provision of an industrial instrument, where the penalty, a civil penalty, cannot exceed $11,500.

The bill imposes a penalty of up to $27,000 for a violation relating to the simple matter of accommodation. The penalties are onerous, they are excessive, and the former system of enforcement has been taken over by WorkCover. Employers First states:

The defences provided in Section 8 of the Bill, as prosecutions under the OHS Act have clearly demonstrated, are completely inadequate and absolutely unacceptable ... The notion of "reasonably practicable" has been significantly distorted within the OHS legal system and is now part of a regime which effectively requires perfect safety and zero risk.

In relation to clause 22 Employers First states:

Section 22 of the Bill imports one of the most offensive provisions of the OHS Act, and one contrary to the basic principles of our legal system, the deeming of guilt. Again, prosecutions under the OHS Act show that the available defences offer no real protection against a conviction.

Suddenly, as a result of this legislation, the Rural Workers Accommodation Act will incorporate the onerous, unfair and harsh regime laid down by the Occupational Health and Safety Act, which is founded on the premise of deemed guilt. The submission goes on to refer to clause 23 in the following terms:

This section offers the Government carteblanche opportunity to legislate on anything seen as remotely related to the provision of rural workers accommodation …

That clause empowers the Government to make regulations, and those regulations will allow for the imposition of fines of up to 100 penalty units or $11,000. It allows the Government to add to a regime that is already comprehensively set out in both the original Act and in the amending Act. It is simply not known what it was envisaged the regulations could possibly achieve, as these Acts are comprehensive and standalone; they have always stood alone. It is clear that the Government simply wishes to have a basis for a further exercise of power to apply to accommodation the principles of law applied to the workplace.

Accordingly, the Coalition objects to the legislation and its underlying premise, which is to ensure symmetry between accommodation and places of work. We object to the application of occupational health and safety principles to accommodation. As I said earlier, a hotel, a hostel, a boarding house and a residence are not workplaces and they are not, and have never been, subject to the same regime as workplaces. Yet this bill would merge places of accommodation with places of work, and apply occupational health and safety principles to rural workers accommodation. It will ensure that the WorkCover Authority oversees rural workers accommodation.

WorkCover has enormous power and is a prosecutorial regime. It deems guilt unfairly, onerously and harshly, denies trial by jury, and imposes massive penalties—up to $27,000—for any breach under this amending bill. WorkCover will not allow for an independent prosecutor and makes provision for ministerial discretion in prosecutions—which no-one doubts will be exercised in favour of leftwing trade unions. These are the principles that the Government seeks to insert into what should be a simple statutory framework for the accommodation of workers in rural New South Wales. Accordingly, the Opposition will move the appropriate amendment in Committee.

Ms ANGELA D'AMORE (Drummoyne) [10.51 p.m.]: I support the Rural Workers Accommodation Amendment Bill, which will significantly update the Rural Workers Accommodation Act 1969. The bill is the outcome of the national competition policy review of the 1969 Act. The review recommended that the requirement in the 1969 Act to provide accommodation remain but that significant structural amendments to the legislation be made. The amendments to this bill will, first, restate the principal requirement of the 1969 Act in plain language; second, repeal the archaic highly prescriptive requirements; third, provide that a code of practice be made under the bill; and, fourth, apply the enforcement mechanisms under the Occupational Health and Safety Act.

The 1969 Act imposes extremely precise, detailed and inflexible requirements about various aspects of the accommodation to be provided. For example, the Act goes as far as specifying the measurements of the front steps and what clothes lines are to be made of, and requiring that a separate—and unrefrigerated—"meat house" be provided for butchering and storing meat when more than 10 workers are using the accommodation. These requirements, and the many others like them, have not been revisited since the legislation was enacted in 1969. However, rural industry has changed significantly since then, and so have construction standards. The application of the Building Code of Australia and other requirements contained in planning instruments and similar legislation have overtaken the need for the kinds of minute details that are in the 1969 Act. These archaic, prescriptive requirements will be repealed and replaced with provisions for a new code of practice. The code of practice will provide flexible guidance to controllers of rural premises about the kind of accommodation that is suitable.

The code of practice will not represent a step down in the protection of rural workers. Rather, it will reflect modern accommodation standards more realistically instead of requiring strict adherence to the outdated standards that currently apply. The Government is consulting closely with union and employer representatives about the content of the code of practice, and I note that the Australian Workers Union and Unions NSW support the bill. This process is an ideal opportunity for people involved in rural industry to reach agreement about the kinds of accommodation arrangements that are suitable in 2005 and beyond. The 1969 Act contains a number of provisions that have become obsolete over the years. The new bill omits those provisions and will increase legislative efficiency by eliminating duplication. The bill applies the provisions of the Occupational Health and Safety Act relating to investigations, inspectors' powers to issue notices, and proceedings for offences under the Act. Under the 1969 Act, inspectors had to be appointed separately to enforce the rural workers accommodation requirements. The bill is written in plain English and will help controllers of rural premises to understand their obligations. I commend it to the House.

Mr IAN ARMSTRONG (Lachlan) [10.54 p.m.]: The Rural Workers Accommodation Amendment Bill is of considerable interest to me. I spent a lot of time living in rural workers accommodation as a younger person—many years ago.

Ms Linda Burney: So did I.

Mr IAN ARMSTRONG: Good luck to you. I have also provided accommodation for rural workers for the past 40 years, so I suppose I can see both sides of the coin. My rural workers accommodation was inspected six or seven years ago. I must inform the House that the majority of hut inspectors perform a dual role as WorkCover officials and Australian Workers Union representatives. The hut inspector arrived at my accommodation and said, "It says that you've got to have six metal hooks per employee in each bedroom." So I pulled out the wooden pegs and put six six-inch nails in the wall, which satisfied her. The inspector then said, "The accommodation Act says that you shall provide a wire stretcher, which shall be flat." The Cyclone company makes wire stretchers with modernised springs top and bottom and a raised head. But the stretcher cannot have a raised head, so I put it on the ground and drive a tractor over it to flatten it. That is how stupidly the Act has been applied in the past.

My next general introductory point is that in most cases shearers drive for up to an hour or an hour and a half in the morning and the afternoon to get home. A shed is operating at the moment between Boorowa, Crookwell and Cowra from which shearers drive for an hour and 20 minutes every morning and every afternoon. They will shear about 16,000 sheep in the next couple of weeks. New section 5, part 2, "Provision of accommodation", states:

Accommodation to be provided for rural worker

A person who has control of rural premises must provide suitable accommodation to a rural worker who works at the rural premises if due to the nature of the work, the rural worker must live for a period exceeding 24 hours at or near the rural premises.

I would like the Minister to explain how that provision will apply. It says that the rural worker "must live for a period exceeding 24 hours at or near the rural premises". Does that refer to piecework, requiring night and day work from time to time, or does it mean that the worker is required under some award to live in situ for the duration of the contract? I would like an explanation as to how that provision will be applied. New section 22, part 6, "Miscellaneous", refers to offences by corporations, and states:

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that:

(a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or
(b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.

Most rural workers accommodation is owned by family companies and family operations. It is not uncommon for a family company to have six or seven directors, that is, the mother, father and three or four children. By the same token, it is not uncommon, particularly in the Western Division, for a farm to be owned by a company and leased to another family company. There might be a manager and an overseer as well as station hands who have various responsibilities. An offence could be alleged against a rural property and as few as four or as many as eight or nine people could be caught under part 6 of the bill, which states:

… each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court …

Those people will have to obtain legal representation and argue their case in court to prove to the court that they were not responsible and defend their position as a company director—and nine times out of 10 they are non-active directors. That is absurd. It shows a lack of knowledge as to how the ownership of most rural enterprises operate, be it orchards, broad acre, or wool-growing. It does not take into consideration the mechanics of management that are applied across most properties in New South Wales.

I sincerely ask the Government to re-examine that measure and seek legal advice on how it will be applied, how the application will be made to the court, and, indeed, how much time the court will be prepared to devote to that matter if a charge is brought to prove negligence on behalf of some or all the directors and/or management. The bottom line is that if this legislation is to improve the situation—I hope it does; there is always room for improvement in this type of facility in some areas—there has to be a reasonable, practical solution as to how the improvement might be used to the benefit of employees and, by the same token, how to make it achievable for the owners of accommodation to comply with the Act. In other words, commonsense must apply.

I suggest to honourable members that some requirements in this legislation are onerous, impractical, I suspect ill-conceived, and almost unworkable. I have no doubt that much of the confrontation that has historically erupted between hut inspectors—union officials under the WorkCover Act who have a dual responsibility, as I said—and property owners will continue into the future. It is absurd that under the Act a hut inspector can force a farmer who lives within eight kilometres of a country town to erect accommodation that is not used for something like 13 years. The owner of the farm I referred to was some 77 years of age at the time. That happened outside the town of Boorowa a few years ago.

So there are a lot of anomalies, and I cannot see how this legislation addresses them. I think that in many ways it will only add to the problems of employers and affect the good relationship between employers and employees when there is a close working arrangement, as there is in these areas of agricultural employment. Travelling raises another point. As I said, shearers will now travel for up to an hour or an hour and a half in some cases. The award day is from 7.30 a.m. to 5.30 p.m., five days a week, with half an hour in the morning and afternoon for smokos and one hour for lunch. The sheds often finish at 4.30 p.m. on Fridays to allow the men to get back to town early in the afternoon and to allow the boards to be washed.
In some cases employers will allow an 8.00 a.m. start and a 5.00 p.m. finish. Of course, that affects the cost of shearing, but it is to accommodate people who, understandably, want to get home to their families. But one cannot expect to have it both ways. One cannot expect owners to give up award time and also provide accommodation. If owners are prepared to give travelling time to employees who make arrangements with their contractor or organiser, I cannot see why they should be forced to provide accommodation that will stand idle in many cases for years and years and just deteriorate.

Mr STEVE WHAN (Monaro) [11.03 p.m.]: As a Country Labor member it gives me pleasure to support this bill. First I put on the record that Country Labor and the Labor Party believe it is important to look after the standard of accommodation in the workplace.

[Quorum formed.]

I am indebted to the honourable member for Gosford for gathering this audience, even if it will only be for a short time. The bill is of great interest to Country Labor and the Labor Party because we believe that rural workers should be looked after and should be entitled to proper occupational health and safety standards. Also—obviously members opposite do not believe in this—rural workers should be entitled to accommodation if they are required to stay overnight in the area in which they are working. I am sure that honourable members are aware that people who must travel for many hours and a long distance to work on a property often find it more convenient to stay overnight. Certainly, as the honourable member for Lachlan said, that might not be as frequent as it once was, when transport was not as good and when the Labor Government had not built good roads throughout New South Wales to ensure that people can easily travel to rural areas.

Now that we have better roads I acknowledge that there is less call for people to stay overnight at their place of employment. However, that does not mean that we should drop this legislation or that rural workers should not be guaranteed accommodation. The Government is of the view that these people are important and that it is important to guarantee their rights and needs. I guess it is a sign of the Opposition's interest in the rural work force that not one Opposition member is in the Chamber during this debate. Members of The Nationals are nowhere to be seen; only one member of The Nationals has spoken in this debate.

The bill updates the Act. The previous Government speaker ably gave the detail of the bill, and I will not go into it again. The bill updates a very old Act, the Rural Workers Accommodation Act, which, I am told, was one of the earliest pieces of legislation introduced into this Parliament. So it has a long heritage. Under national competition policy, the Government was required to review the Act to see whether it had anti-competitive elements. The Government determined that it is not anti-competitive, because it is necessary to ensure occupational health and safety standards for rural workers. For that reason, the Government has attempted to update the Act to bring in new provisions to make it more relevant to today's society and consistent with occupational health and safety standards. The Act needed to be updated. I acknowledge the points made by the honourable member for Lachlan, who reminisced about his experience and the application of the Act over the years. Some of the examples he gave highlight the need in this modern era for the Act to be updated.

I was not surprised to hear the honourable member for Gosford, who led for the Opposition, say that the amendments were not needed. He suggested that rural workers did not need a guarantee of a certain standard of accommodation. The Government rejects that proposition because workers who need to stay overnight should be entitled to a certain standard. This bill provides for codes of practice to be put in place to provide practical guidance to persons who have control of rural premises with respect to the type and nature of accommodation that is suitable for rural workers who fall under this Act. There will be consultation in relation to putting those codes of practice in place.

A number of workplace injuries still occur in rural employment, which has special conditions that are not found in urban areas. It is important to recognise that rural workers fall within a special category, and that is why it is important to retain this Act. The Government rejects what the honourable member for Lachlan said about the Government trying to have it both ways. While some people now find it easier to travel to and from work, even though they travel further than they did 60 years ago, there is certainly a need in some areas for workers to stay overnight at their place of employment. In those circumstances, it is important that they have a decent standard of accommodation.

I reinforce the fact that Country Labor believes that rural workers are important. They are a group who are often ignored by the Opposition, particularly by The Nationals. The honourable member for Lachlan said the provisions of the bill were not practical and would not be easy to implement. It is important to protect workers and to make sure they have a good standard of accommodation. They are entitled to a workplace that is safe. They are important to rural communities because they live there and they make rural industries tick. I commend the bill to the House.

Ms KATRINA HODGKINSON (Burrinjuck) [11.13 p.m.]: I endorse the comments of Opposition members on the Rural Workers Accommodation Amendment Bill, and I restate that this amending bill is the outcome of a national competition policy review of the Rural Workers Accommodation Act 1969. The review said the requirement to provide accommodation should remain, but that significant structural amendments should be made to the Act. Whenever it comes to rural workers and accommodation there will always be different points of view, depending on whether one provides accommodation or one inhabits that accommodation. That was emphasised very strongly by the honourable member for Lachlan, who made a good contribution to the bill.

I note that Employers First has specified some concern with the bill and believes that its intent is adversely affected by the Occupational Health and Safety Act. It is important to place on the record that many employers across the State have difficulty not only with this legislation but with many pieces of legislation we have been debating over the past several years, and that they are severely impacted by the Occupational Health and Safety Act. The Nationals are strongly of the opinion that the Act impacts very negatively in many ways upon employers, and that it can have the resultant effect of being an employment negative. It is important that the Government understand that many employers are of that opinion in relation to legislation such as this. Certainly the Rural Workers Accommodation Amendment Bill is no exception.

Ms LINDA BURNEY (Canterbury) [11.15 p.m.]: Honourable members might be intrigued about why I would speak to the Rural Workers Accommodation Amendment Bill. A number of them may be aware that I grew up in the Riverina and the Murrumbidgee Irrigation Area and spent much of my youth not only picking oranges and grapes but also working on harvesters at night on tomato harvesting. That was very challenging for a kid at school to supplement the meagre family income and lifestyle, but that is what kids did in the Riverina. So I know a little about this subject from a very personal perspective. I have seen and I understand the difficulties and challenges involved in the provision of workers' accommodation on many farms.

It is important to understand that this discussion has arisen out of a WorkCover review of the Rural Workers Accommodation Act 1969, something I have not heard much about in this debate. A consultative process has involved, and will continue to involve, not only itinerant workers but also those who provide residential accommodation for them. People do not think seriously about the implications for families, their children and, in many senses, the communities who actually follow work in rural areas, whether in the picking fields or the cotton chipping fields, or about the need to provide adequate accommodation for them.

This bill is ultimately extremely sensible, and deals with a whole range of matters. Essentially it gives clear guidelines to people who are responsible for providing accommodation to rural workers who will be away from their home for more than 24 hours. The bill makes clear their responsibilities and those of a number of other instrumentalities. Rural workers face special conditions not faced by workers in other sections. When we, and a whole range of other workers, are away from home we get a generous travel allowance. One can imagine how hard it is for two parents with three kids to cope with getting their kids a decent education through correspondence, or in primary school or secondary school, as well as a decent standard of accommodation as they live in a number of places over a number of seasons. I saw many families growing up in the Riverina—the honourable member for Wagga Wagga would understand what I am talking about—including in Leeton, Griffith, Coleambally and a whole range of other places.

Mr Daryl Maguire: Ivanhoe, Wilcannia, Broken Hill, Menindee.

Ms LINDA BURNEY: Ivanhoe, Wilcannia and Darlington Point, where people are moving from one field to another—be it potatoes, peas, tomatoes, cotton, oranges or peaches—with extremes of accommodation. This bill tries to regulate equitable accommodation for people who find themselves in this industry. That is extremely honourable. Why should people who have itinerant arrangements, who follow the seasons and the crops, be subject to living in absolutely abhorrent conditions? Some of them are. In some cases there may not be showers, there may not be any distinction between men's and women's ablution blocks, and study time for kids may receive very little regard. They are the fundamental issues we are talking about in this bill.

This bill will not be enacted straightaway. It will develop a code of practice that will be discussed and negotiated with a whole range of people in this industry before it is enacted. The bill does not beat anyone around the head. It is thinking about families and the standard of accommodation that workers should expect if they follow the seasons and the crops. A lot of people are in this position. They are good people but very often on the edge because they do not have a lot of things like superannuation and all those sorts of things that people expect are a normal part of one's work experience. The bill focuses on a level of accommodation that is adequate and decent. It looks at it from the perspective of the Rural Workers Accommodation Act 1969. It has involved an enormous amount of consultation, and that will continue until there is a code of practice.

More importantly, it will make sure that people who are responsible—be they companies or individual farmers—for responding to this bill and making sure rural workers accommodation is adequate are given every opportunity to meet those standards. The workers who follow the picking season, the cropping season and the chipping season and their families, like everyone else in our community, deserve a decent standard of accommodation. This bill is a good wakeup for us in this Chamber that there is a whole community of people from many different ethnic backgrounds and experiences who make their lives picking, cropping and chipping, and we should be responsible for and respect those people's needs by implementing the Rural Workers Accommodation Amendment Bill. I commend the bill to the House.

Mr DARYL MAGUIRE (Wagga Wagga) [11.23 p.m.]: The contribution of the honourable member for Canterbury has prompted me to also make a contribution. I agree with much that has been said about the area from which we hail. The honourable member indicated to the House that she was raised around the Whitton area—Narrandera, Griffith, Leeton—and has fond memories of the area. She also relayed to the House the standards of some accommodation used by her family, friends and others. I can speak from first-hand experience, having been raised in the Western Division in the triangle between Cobar, Wilcannia and Ivanhoe. It is a very remote area. As my dad worked as a station hand on stations, whether it be shearing sheep or mustering, much of that time we lived for long periods in rural accommodation supplied by the owners of those large stations. I spent school holidays on the boards of the sheds rouseabouting, earning an income—as most rural kids do. The standards of accommodation differed markedly. The honourable member for Canterbury referred to the Griffith area and the itinerant fruit pickers. Again, the standards vary markedly.

Honourable members have covered various parts of the bill and it has been explained fairly well, but I would like the Minister to respond to what I am concerned about: the code of practice. The Opposition has proposed amendments to the bill. The words "modern standards" concern me. Much of the accommodation provided is seasonal. In the Western Division shearers often cannot drive the hour or hour and a half to the shearing shed and then get home, so they are required to stay in rural accommodation. As I said, the standards vary markedly. I want to know what this group of people who will develop the code will expect the people in the Western Division in particular to adhere to as a modern standard. In cities and towns, where most of us reside these days, modern standards are quite different from the accommodation that was built on the stations, on the large rural holdings, many years ago. Certain improvements have had to take place in the provision, particularly, of shearers' accommodation and that has been policed adequately by unions, WorkCover and others. Many modern homes have airconditioning and ceiling fans. They also have lots of features that perhaps will be expected to be included as standard features in these accommodation blocks that were built for a purpose many years ago.

The bill says there will be consultation on draft codes. This Government's consultation record is very poor. Apart from WorkCover and, as it says in the bill, whoever the Minister may direct, I want to know who else will be included. What assurances do we have that the code that will be put before the Minister and the industry will be appropriate and unanimously agreed upon? We have often seen brought before this place bills that have been withdrawn after embarrassing back flips by the Government because they have been ill-conceived. We have seen legislation before this place that has not been finalised. This is an example—approve the bill and we will tell you the detail later. It is the devil in the detail that people should be concerned about. The modern standard that has been referred to should be a major concern, not only to members on our side of the House but also to members on the Government side. All of us represent diverse electorates.

All over New South Wales there are industries that rely on the very valuable contribution that itinerant workers make. Whether picking fruit in the Griffith and Murrumbidgee area or on the North Coast, these workers are very important to the industry. I acknowledge the importance of providing appropriate accommodation for them. The question is: What standard of seasonal accommodation units will WorkCover and the Government expect to be supplied? If unreasonable demands for accommodation are made, many industries would have to spend untold amounts of money to upgrade their accommodation units. That is not to deny that work needs to be done to bring some of this accommodation up to a reasonable standard. I know I harp on this, but to industry—
Mr Steve Whan: "To industry"?

Mr DARYL MAGUIRE: It is important to industry. The honourable member has in his area shearers who would want a reasonable standard of accommodation. The question is the terminology used in the debate, such as "modern standards" and "modern expectations". Modern lifestyle demands everything at the flick of a switch, many gadgets in modern households and modern facilities which, when the subject buildings were constructed 50 years ago, were not even thought about. I ask the Minister in his response to the debate to tell us more about the code of practice. Exactly what are the mechanics of it? What can we expect? What will be the process if employers are unhappy with the code of practice? How will they go about getting a fair and reasonable outcome? Those are important questions because all too often the Government bulldozes industries on certain issues. The Government asserts that it has consulted everyone, yet we get rafts of letters from peak bodies complaining that they did not have a say, were not included in the negotiations, and that the Government is imposing something that is unreasonable. I repeat: reasonable standards of accommodation should be provided for seasonal workers, but if the cost of that to New South Wales industries puts at risks their business, the Government should return to the drawing board.

Mr GRANT McBRIDE (The Entrance—Minister for Gaming and Racing, and Minister for the Central Coast) [11.32 p.m.], in reply: I thank honourable members who contributed to the debate, including the honourable member for Gosford and the honourable member for Drummoyne. Every time the honourable member for Lachlan speaks in a debate we are left wondering why he is not the Leader of The Nationals in this Chamber.

Mr Chris Hartcher: What about saying something like that about me?

Mr GRANT McBRIDE: I think you are being beaten by a beard and 49 kilos! I thank the honourable member for Monaro and the honourable member for Burrinjuck. I thank the honourable member for Canterbury for the insights into her early life.

Ms Linda Burney: I have picked fruit.

Mr GRANT McBRIDE: That is why I thanked you for your contribution. I do not say it is amazing, but it must be embarrassing for the Opposition that an honourable member on the Government side has such a detailed knowledge of the conditions of workers in rural New South Wales. I thank the honourable member for Wagga Wagga for his contribution. We had discussions before he spoke about the content of his contribution, and he lived up to my expectations! I use code there! Talking about code, I would like to respond to a number of issues raised by the Opposition. The Opposition asked whether inspectors are given more powers under this bill. The answer is clearly, no. At present, all WorkCover personnel who are appointed as inspectors under the Rural Workers Accommodation Act 1969 are also general occupational health and safety inspectors.

The bill makes it clear that inspectors under the Occupational Health and Safety Act are allowed to enter premises that are being used for the purpose of rural worker accommodation, with the occupant's permission. This will avoid any argument that premises being used for rural worker accommodation are not places of work, which could prevent inspectors or authorised employee representatives from entering them. Inspectors will be able to use the powers they now have to issue improvement and other notices in relation to rural workers accommodation. The honourable member for Wagga Wagga raised an issue about the code of practice and consultation. The consultation included New South Wales Farmers, unions and other groups that represent rural employers. All their views will be considered to create a balanced document.

The code of practice will contain flexible standards, instead of the prescriptive, archaic and inflexible provisions that exist today. Employers will benefit from this increased flexibility, and employees will benefit by getting a decent standard of accommodation. Everyone wins. It is a win-win for both employers and the workers. If the amendments proposed by the Opposition are passed, an employer could be at risk, for example, of separate prosecutions for breaches of each of the rural workers and occupational health and safety Acts. The provisions provide clarification of the relationship between the two Acts and protect employers from double jeopardy. The amendments therefore will be opposed. This is important legislation.

The Rural Workers Accommodation Bill significantly modernises and updates the Rural Workers Accommodation Act 1969. The bill retains the key requirement of the Act that rural workers who are required to live on rural premises for more than 24 hours because of the nature of their work must be provided with accommodation. The bill will continue in force the existing law, which is aimed at ensuring the health, safety and welfare at work of workers. The bill takes into account the particular issues faced by rural workers and controllers of rural premises. The bill being considered arises from a recent national competition policy review of the 1969 Act. That review and the development of the bill have been undertaken in consultation with key industry stakeholders. Industry stakeholders are also involved in the preparation of the code of practice, which will be made under the amended Act. Consultation on the code will provide an opportunity for people involved in the industry to discuss the kinds of accommodation arrangements that are suitable for rural workers of today. In conclusion, I am pleased to advise honourable members that New South Wales Farmers and the Australian Workers Union support the bill.

Motion agreed to.

Bill read a second time.

Clauses 1 to 4 agreed to.

Mr CHRIS HARTCHER (Gosford) [11.37 p.m.]: I move the following Opposition amendment:

Pages 6 and 7, schedule 1, line 29 on page 6 to line 24 on page 7. Omit all words on those lines.

The functions of the WorkCover Authority and the principles of occupational health and safety relate to workplaces. The words that the Coalition seeks to remove from the bill would, if they remain part of the legislation, insinuate into places of accommodation the principles of present law applying to places of work. That is wrong. It exceeds any reasonable expectation. It will not achieve any desirable result for either employers or employees. Places of accommodation are not places of work, and an authority that governs places of work is not an appropriate authority to govern places of accommodation. Standards and rules for places of work are not appropriate for places of accommodation. The Government made extraordinary assertions that somehow the current provisions in the legislation are necessary. However, they are simply unjustified.

There is a statutory framework for the provision of rural accommodation. Rural accommodation has lost a lot of its importance, as the honourable member for Lachlan so eloquently expounded. Nonetheless, we agree there is still some need for rural accommodation. If rural accommodation is needed, we agree there needs to be a framework under which it is provided. We do not agree that the principles of occupational health and safety must apply to places of accommodation. They never have and there is no reason why they should now. The Government has not advanced any reason. The Minister in his second reading speech flatly rejected the Coalition's amendment without giving any detailed or comprehensive reason. We insist upon the amendment. We have heard the speeches by Government members. The interesting note that permeates those speeches, especially the speeches of the honourable member for Monaro and the honourable member for Canterbury, is that cost is an irrelevancy. They are not concerned about the cost that this legislation imposes upon employers. They are careless about expense.

Ms Linda Burney: Point of order: The honourable member for Gosford has misrepresented what I said. I did not ever mention costs.

The TEMPORARY CHAIRMAN (Mr Paul Lynch): Order! That is a point of debate, not a point of order.

Mr CHRIS HARTCHER: The honourable member for Canterbury especially was careless about expense. She simply waxed lyrical about workers and their standards without any concern at all as to the impact this legislation would have on employers. She was not concerned at all about the plight employers now face in a drought-stricken landscape. She simply demanded that her expectations for places of accommodation be met and the legislation enacted accordingly. We reject that. We believe that the legislation needs to be appropriate. We accept the principle of places of accommodation, but we do not accept the principle that the Occupational Health and Safety Act is an appropriate Act to govern places of accommodation. Accordingly, the Opposition moves the amendment.

Question—That the words stand—put.

The Committee divided.

Ms Allan Mr Amery Ms Andrews Mr Barr Ms Beamer Mr Black Mr Brown Ms Burney Miss Burton Mr Campbell Mr Collier Mr Corrigan Mr Crittenden Ms D'Amore Mr Debus Mr Gibson

Mr Greene Ms Hay Mr Hickey Mr Hunter Ms Judge Ms Keneally Mr McBride Mr McLeay Ms Meagher Ms Megarrity Mr Mills Ms Moore Mr Morris Mr Newell Mr Orkopoulos Mrs Paluzzano

Mr Pearce Mr Price Ms Saliba Mr Sartor Mr Scully Mr Shearan Mr Stewart Mr Tripodi Mr Watkins Mr Whan Mr Yeadon Tellers, Mr Ashton Mr Martin

Mr Aplin Mr Armstrong Ms Berejiklian Mr Cansdell Mr Constance Mr Draper Mrs Fardell Mr Fraser Mrs Hancock Mr Hartcher Ms Hodgkinson

Mrs Hopwood Mr Humpherson Mr Kerr Mr Oakeshott Mr O'Farrell Mr Page Mr Piccoli Mr Pringle Mr Richardson Mr Roberts Ms Seaton

Mrs Skinner Mr Slack-Smith Mr Souris Mr Stoner Mr Tink Mr Torbay Mr J. H. Turner Mr R. W. Turner Tellers, Mr George Mr Maguire

Mr Bartlett	Mr Brogden
Mr Gaudry	Mr Hazzard
Mrs Perry	Mr Merton

Question resolved in the affirmative.

Amendment negatived.

Schedule 1 agreed to.

Schedule 2 agreed to.

Bill reported from Committee without amendment and report adopted.

Mr GRANT McBRIDE (The Entrance—Minister for Gaming and Racing, and Minister for the Central Coast) [11.55 p.m.]: I move:

That this bill be now read a third time.

The House divided.

Ms Allan Mr Amery Ms Andrews Mr Barr Ms Beamer Mr Black Mr Brown Ms Burney Miss Burton Mr Campbell Mr Collier Mr Corrigan Mr Crittenden Ms D'Amore Mr Debus Mr Gibson

Mr Greene Ms Hay Mr Hickey Mr Hunter Ms Judge Ms Keneally Mr Lynch Mr McBride Mr McLeay Ms Meagher Ms Megarrity Ms Moore Mr Morris Mr Newell Mr Orkopoulos Mrs Paluzzano

Mr Pearce Mr Price Ms Saliba Mr Sartor Mr Scully Mr Shearan Mr Stewart Mr Tripodi Mr Watkins Mr Whan Mr Yeadon Tellers, Mr Ashton Mr Martin

Mr Aplin Mr Armstrong Ms Berejiklian Mr Cansdell Mr Constance Mr Draper Mrs Fardell Mr Fraser Mrs Hancock Mr Hartcher Ms Hodgkinson

Mrs Hopwood Mr Humpherson Mr Kerr Mr Oakeshott Mr O'Farrell Mr Page Mr Piccoli Mr Pringle Mr Richardson Mr Roberts Ms Seaton

Mrs Skinner Mr Slack-Smith Mr Souris Mr Stoner Mr Tink Mr Torbay Mr J. H. Turner Mr R. W. Turner Tellers Mr George Mr Maguire

Mr Bartlett	Mr Brogden
Mr Gaudry	Mr Hazzard
Mrs Perry	Mr Merton

Question resolved in the affirmative.

Motion agreed to.

Bill read a third time.

Debate resumed from 27 May 2005.

Mr MICHAEL RICHARDSON (The Hills) [11.57 p.m.]: This bill is ostensibly about conserving forest in the Brigalow Belt South and Nandewar regions, including the Pilliga, Goonoo, Terry Hie Hie and Bebo forest as part of the regional forest agreement process. I use the word "ostensibly" deliberately because there is a very significant sting in the tail. It is about far more than conserving forest, important as that might be. The Brigalow Belt South and Nandewar bioregions in New South Wales are a vast area of 77,000 square kilometres stretching from Dubbo to the Queensland border. They have been identified by the Commonwealth Government as a biodiversity hot spot. The greater Brigalow Belt South contains 25 per cent more different species of native flora than the entire State of Tasmania. There are at least 24 threatened species in the region, including two endangered species, the Mallee fowl and the Bush Stone curlew, although with respect to the former the Pilliga Nature Reserve Fire Management Plan says there have been no sightings of Mallee fowl in the last 20 years and that the species potentially is extinct in the Pilliga.
The bill creates a whole new class of reserve, the community conservation area, which, in turn, is divided into four new zones. Zone 1 is equivalent to national parks. Zone 2 is conservation areas under Aboriginal management, which includes Terry Hie Hie, Kelvin and part of Bibblewindi state forests. Zone 3, which is conservation and recreation area permitting mineral extraction, includes Trinkey, Cubbo, Ruttley, Pilliga West and Goonoo state forests. Zone 4 is conservation and recreation area permitting mineral extraction and logging, except in designated special management zones. The rationale for the Government adopting this community conservation area concept is a little harder to understand. It is based on the International Union for the Conservation of Nature system, which was developed primarily for Europe, although it now applies in Africa, Asia and the Americas. A classic example of where one might see this system applied is the Yorkshire Dales. One could not really say that any national park in New South Wales is equivalent to the Yorkshire Dales.

All of these categories exist currently under the National Parks and Wildlife Act and the Forestry Act. The bill will change the status of Pilliga Nature Reserve to a community conservation area zone 1—and I wonder to what benefit? Forests become community conservation area zone 4, except for special management zones, which are effectively zone 3. These were coloured grey on the original map given to me with the Minister's speech. However, detailed maps show that more than half of this area are special management zones and cannot be logged. That is exactly the same form of protection given to many of the forests under the BRUS option, which the Coalition supports. I understand that there are likely to be significant coal reserves under Goonoo State Forest, which has been zoned as zone 3. This is a conservation and recreation area permitting mineral extraction.

Mr Paul Gibson: Point of order: It is definitely zone 4.

Mr ACTING-SPEAKER (Mr John Mills): Order! There is no point of order.

Mr MICHAEL RICHARDSON: It is likely to become an open cut mine and yet zone 3 is supposed to be a higher level of conservation than zone 4, which permits logging. I cannot, for the life of me, understand how an open cut mine can actually be a better example of conservation than a well-managed State forest, but that is precisely what this legislation will achieve. It really shows the mindset of the Government over conservation issues in this particular area. The Minister said in his second reading speech that the bill will be underpinned by strong community involvement. This is going to be achieved by managing the community conservation area via a new community conservation council, which comprises the directors general of the Premier's Department, the Department of Environment and Conservation, the Department of Primary Industries and the Department of Infrastructure, Planning and Natural Resources.

I do not think any of these people, decent human beings that they might be, qualify as being members of the local community. However, there will actually be input from three community conservation advisory committees, and that is perhaps what the Minister means when he says there will be significant community involvement. This community conservation council in turn will be subject to the control and direction of the relevant Ministers and will report directly to the Premier. I think honourable members will understand how little community involvement there really is going to be. There will be three community conservation advisory committees—that is, Border Rivers-Gwydir, Namoi and—

Ms Linda Burney: Point of order—

Mr MICHAEL RICHARDSON: Would you sit down, please? It is a bit late, and you do not need to take stupid, spurious points of order.

Ms Linda Burney: Then do not talk for so long. My point of order is that I was a member of the Resource and Conservation Advisory Council, which started this process, and I assure the honourable member that that was absolutely community consultation.

Mr ACTING-SPEAKER (Mr John Mills): Order! I have heard enough. The honourable member for Canterbury will have an opportunity to contribute to the debate at the appropriate time.

Mr MICHAEL RICHARDSON: Why do you not send her home, Mr Acting-Speaker? It would benefit all of us.

Mr ACTING-SPEAKER (Mr John Mills): Order! The honourable member for The Hills will let the Chair run the House.
Mr MICHAEL RICHARDSON: Then run it and do not let her take spurious points of order.

Mr ACTING-SPEAKER (Mr John Mills): Order! If the honourable member for The Hills does not return to his speech I will ask him to resume his seat.

Mr MICHAEL RICHARDSON: There will be input from three community conservation advisory committees—Border Rivers-Gwydir, Namoi and Central West. Each advisory committee will be made up as follows: One member each from local government, forestry, mining and apiary; the chairman of the relevant catchment management authority; two Aboriginal people; two scientists; three members of local environmental groups; and one representative of the National Parks Regional Advisory Committee.

Mr Bob Debus: So there is community consultation.

Mr MICHAEL RICHARDSON: The Minister interjects that there is community involvement. However, I stress that these people will have an advisory role only. The council can take its own decisions and will be subject to the control and direction of the relevant Ministers and will report directly to the Premier. It does not sound much like community involvement to me. I say again that these committees are advisory only and the need for this new system of tenure is not clearly understood. The community certainly was not asking for it; they were happy with the existing system. There is also going to be an overlap between the national park regional advisory committees and the new community conservation advisory committees. In fact, as one person who was a member of one of those national park regional advisory committees suggested to me, they are likely to be tripping over one another's feet. In his second reading speech the Minister said that the bill will provide an appropriate balance between conservation and sustainable industries that will provide jobs in the timber, gas, minerals and apiary sectors. He went on to say:

It will ensure the continuation of a viable, sustainable and value-added timber industry with up to 57,000 cubic metres of cypress pine available to the cypress industry insecure 20-year wood supply agreements.

He talked about sustaining and improving the industry. It is certainly true that the bill provides security for beekeepers; there is no question about that. It specifically provides that security. It provides for the gas industry, and that is important. New South Wales produces virtually none of its own gas. As I understand it, it sources 85 per cent of its gas supplies from the Cooper and 15 per cent from Bass Strait, and those reserves are running out. There is an urgent need to develop our own reserve and the Brigalow Belt South bioregion is the most prospective region in the State and may indeed contain sufficient gas to supply New South Wales gas needs for most of the remainder of this century.

The future of the timber industry, however, is much less assured. A rally held last Thursday in Gunnedah was attended by 1,500 people. It was not attended by the Minister, who claims that it was a National Party stunt. The Minister was very critical of the Mayor of Gunnedah, Gae Swain, and claimed that she was a member of The Nationals. In fact she is not a member of The Nationals; she is an Independent. I will quote from a report in the Namoi Valley Independent of Thursday 2 June:

Mayor Gae Swain told today's protest rally outside Gunnedah Timbers that the NSW Government had treated Gunnedah with "monumental contempt" in its decision on the future of the Brigalow Belt South Bioregion.

After a fiery exchange last week with the Minister for the Environment, Bob Debus, Cr Swain told the rally she was "not backing away" from her assertion that Gunnedah and other towns in the Brigalow had been given a raw deal.

Mr Debus last week cancelled a planned visit to Gunnedah to open the new $700,000 waste management facility, saying that his visit would be turned into "a National Party rally" over the Brigalow Belt decision.

Member for Tamworth, Peter Draper—

It is good to see him in the Chamber. He has not had a lot to do with this issue so far.

—also weighed in with similar comments, which were strongly refuted by the Mayor.

Mr Alan Ashton: Point of order: I do not understand the relevance of reading from a newspaper article when we cannot verify what it has to do with the bill that the honourable member is speaking to. Merely reading an opinion in a newspaper has nothing to do with the bill before the House.

Mr ACTING-SPEAKER (Mr John Mills): Order! At this stage I do not uphold the point of order. However, I remind the honourable member for The Hills that precedent allows only brief excerpts to be read from articles and other publications.
Mr MICHAEL RICHARDSON: The article continued:

Councillor Swain told today's gathering she made "no apology" for her promotion of the rally.

"I have been attacked in the media by Mr Debus and Mr Draper for organising a "political rally" almost to the point of saying that I was trying to incite a riot.

"I strongly refute that assertion, nothing could be further from the truth.

"I am standing up for the community, as I should."

Amen to that! The Minister for the Environment in his second reading speech thanked the honourable member for Tamworth, the honourable member for Dubbo and the honourable member for Northern Tablelands "for their instructive involvement in this process".

Mr Bob Debus: "Constructive" was the term I used.

Mr MICHAEL RICHARDSON: It was probably instructive as well, so if the Minister used the word "constructive", I do not think it really matters. I think we get the general thrust of the argument. Irrespective of whether it was constructive or instructive, I cannot work out what their involvement in the process was at all, and I do not think any of their respective constituents can either. The major area affected by this legislation is the Pilliga scrub between Coonabarabran and Narrabri. Last Friday week one of the Minister's advisers gave me a map which was very interesting because it showed Gwabegar where the town of Pilliga should be, and the town of Pilliga where Gwabegar should be. That did not really suggest to me that the Department of Environment and Conservation had spent a lot of time on the ground in the Pilliga, whereas I had visited the region and spoken to industry representatives, workers, farmers and foresters.

As I understand it, the timber industry is worth approximately $50 million to the local economy and export orders account for more than $10 million of that amount. Paull's Pty Ltd exports 75 per cent of its production from Baradine and 20 per cent of its production from its Gunnedah mill. I saw truckloads of sawn timber heading for the wharves from both Baradine and Gwabegar. Given the size of Australia's current account deficit over the past 15 or 16 years, I would have thought that $10 million in export orders was something that the Government would be eager to retain.

On 4 May, when the Government's decision relating to the Brigalow was announced, the Premier issued a press release under the heading, "Western Woodlands Government Backs Jobs and Conservation". I do not know whether there was something missing—some punctuation or something—but I wondered whether the Premier was suggesting that the Government is a Western Woodlands government. I am sure that if The Nationals issued a press release of that type the Premier would have ridiculed them in this place. But I would not do such a thing. I am, however, trying to work out exactly what the Premier meant. The press release stated that the Government's decision would impact upon 10 major mills in the region that generate direct employment for 193 workers. The Premier went on to state:

Every timber worker who wants a job will have one and every timber mill that wants to continue in the industry will have new long term timber supply contracts.

Seven mills will continue to operate at around their current timber allocations secured by the new 20-year contracts which will guarantee total timber supplies of 57,000 cubic metres per annum.

That really sounds quite good, except that one of those seven mills was Tom Underwood's mill at Gwabegar, which will close. So by this stage we are down to six. Ironbark mills, such as Mick O'Neill's mill in Dubbo, which has been running for 50 years, will also vanish. The 20-year contracts are a real concern. I was told by a large number of sources during my visit that there are just 23,000 cubic metres of white cypress pine available on a sustainable basis from the 122,000 hectares of forest that remain. Previously there was harvesting of just over 70,000 cubic metres from 470,000 hectares. A comparison of the two sets of figures makes it very plain that timber getting is not sustainable and that the remaining forests will be totally overcut. What will remain will be so inadequate that the Minister for Primary Industries has decided to re-release an additional 15,000 hectares for logging.

In his second reading speech the Minister for the Environment said—if I can be forgiven for quoting approximately three paragraphs:

Forests NSW will also source timber from outside the ... bioregions, and dedicated resources will be committed to obtaining timber from private property and leasehold lands. The previous timber supply zones for the region will no longer apply and timber will be made available from areas to the south as well as from the west.
Haulage assistance will also be available as part of the wood supply agreements to equalise any transportation costs associated in obtaining timber from non-traditional supply areas.

What he did not say was that, based on the fact that there are only 23,000 cubic metres of white cypress pine available from the Pilliga and the Government is guaranteeing 57,000 cubic metres of white cypress pine, the majority of white cypress pine will come from outside the bioregion. The suggestion is that it will come from Queensland or as far south as Narrandera. That will generate extra pressure on those areas with the result that we will be trucking in thousands of tonnes of logs a year with all the associated problems of fuel, road safety, wear and tear on roads, and so on.

Under the Government's package, workers either get a new job or a choice between a $72,000 redundancy payment and $27,000 plus up to $45,000 in retraining. As far as the new jobs are concerned, approximately 50 workers will be employed in a white cypress thinning program, and $29 million will be provided over five years to employ 69 workers to manage the new conservation areas. The $80 million package also includes a $10 million capital investment fund to build new infrastructure and new conservation areas with a Department of Environment and Conservation visitor and information centre, which I gather will include workshop facilities as well, to be built at Baradine at a cost of $2.5 million. A $14 million business exit fund will be provided to assist mills that have ceased production as a result of the Government's decision. Perhaps that sounds too good to be true? Indeed, it is.

The package includes a number of initiatives that are supposed to aid the timber industry, including the refitting of sawmills with "state-of-the-art" milling equipment in all mills, including bandsaws which cut a narrower kerf than do conventional circular saws, which enables them to handle smaller logs than is the case currently and cut timber of the same size. The package also includes "the management of timber resources across different land tenures." Timber resources will be "better managed using the most effective means available on public and private land alike." Manual thinning has been proposed to boost timber volumes for the industry, and 50 workers will be available to carry out that work.

The big problem with the last initiative is that it will take a very significant number of years for the trees to grow after the thinning has taken place. The suggestion of thinning as a short-term solution to the supply problem is quite disingenuous. The package also includes recovery of non-commercial thinnings which will be transported to a processing centre for briquette making and cypress oil extraction. I understand that the two processes are very closely related because the oil has to be extracted or the briquettes burn too fiercely and would be of no value as firewood.

The industry has co-founded a process to evaluate the use of extractive chemical compounds that remain in cypress sawdust and it is suggested that this might be used in place of copper arsenate to preserve timber. That has not yet been proved. I understand that the results from initial experiments have been quite unsatisfactory. The package will also involve the purchase of finger jointing and laminating equipment for suitable sawmills to utilise sawn timber that would otherwise not be marketable. I believe that proposal will work. There has also been a suggestion that it might be possible to pre-finish flooring so that timber would not be provided in its raw state but would be coated with some type of laminate in the sawmill to add value. The problem is that even when all of those things are considered together—and there are problems associated with quite a few of them, including the bandsaws that cut a narrower kerf if there are knots in the timber, so very good quality logs are needed to be able to use them—that might add 10 per cent, but let me be generous and estimate 15 per cent, to the value of the product, that is not a substitute for cutting the timber allocation from 70,000 to 23,000 cubic metres.

The 57,000 cubic metres per annum guaranteed by the Government is significantly more than was estimated for similar combinations of forests and reserves in the options paper issued by the Government. The guarantee is fully compensable, so that if the Government does not supply the logs it will have to compensate the millers, and that could end up costing taxpayers tens of millions of dollars. It is not just timber mills that are affected; other businesses are also affected. At the rally in Gunnedah, Patrick Hennessy, who set up Universal Composts eight years ago, said that his business, which had a turnover last year of more than $800,000, relied directly on Gunnedah Timbers. He said the firm has developed environmentally friendly processes that utilise excessive woodchip and bark from sawmills at Gunnedah and Baradine. He said the firm has two full-time employees and last year paid $57,000 in wages. The firm also spent $78,000 on raw materials, $220,000 on freight, $40,000 on fuel, $77,000 on repairs and maintenance through local companies, and $66,000 on an expansion. So there is a multiplier effect.

The Managing Director of Namoi Valley Brickworks, Michael Broekman, said that his business relied heavily on cypress pine sawdust in its manufacturing process. He was very concerned that he would not be able to obtain adequate supplies of cypress pine sawdust. Fourways Haulage employs 11 people and last year paid out $680,000 in wages. The company's largest customer is Gunnedah Timbers and its associated Baradine plant. The company's second-biggest customer is Namoi Valley Brickworks, which would also be affected by any downturn. Each of these businesses is dependent on the others, and it seems clear that a complete collapse of Gunnedah mills would be disastrous for Gunnedah and Baradine.

Mr Bob Debus: Are you saying they are both going to collapse? Is that your position?

Mr MICHAEL RICHARDSON: The two mills are operated by one person. The Minister has spent a lot of time up there, so he would know that. Much of the 122,000 hectares that is left is dense whipstick pine, which is useless for harvesting. That will mean a heavy concentration on the forests that contain harvestable timber, such as Kerringle and Cumbil. Earlier I referred to the problems with the thinning operation. Thinning will generate results in 20 or 30 years time. It is a good practice, but what will happen in the meantime? Thinning jobs are guaranteed for only five years. What happens then? One gets the impression that this is a make-work scheme. The last time thinning was carried out on this scale was during the Depression, when unemployed men with axes were sent into the Pilliga West forest. So I suppose this package is the Premier's equivalent of the New Deal. However, I doubt whether it will be as successful.

I met a 30-year-old timber worker from Baradine who was born and bred in the town. He lived and worked on the North Coast for a while, but he came back to Baradine because he got a job there. He owns a house that cost him $150,000. He has a mortgage on that house, and he has to service that mortgage. He believes that if the mill closes he will not be able to realise anything like the $150,000 he paid for his house, and of course the Government's $72,000 redundancy package will also not pay for his debts. So that will create some significant financial problems for him. I met a 55-year-old from Dubbo who had been educated to the Intermediate Certificate level. I am pleased to see the honourable member for Dubbo in the Chamber; I am sure she would be interested to talk to him. He said to me, "If I am not able to harvest ironbark, what am I going to do? I don't think there are going to be too many jobs for me out there." Perhaps he will get one of these thinning jobs. It does not seem to be the sort of job one would want to do in the twilight years of one's working life, building up superannuation for one's retirement.

What did the Federal Labor member for Rankin, Craig Emerson, who grew up in Baradine, have to say about the Government's decision? We have heard a lot of cackling and hooting from the other side of the House. Craig Emerson was highly critical of the Government's decision. He said that its decision to release an extra 15,000 hectares of timber to the town's mill was encouraging, but that it was not enough. He implored the State Government to ensure the survival of country towns in north-west New South Wales. He said that the fate of towns like Baradine will tell us a lot about whether we are fair dinkum about saving country Australia. He is obviously a genuine Country Labor man, which is more than we see in this House.

The Government's jobs package is not likely to lead to increased prosperity for towns like Gwabegar, Baradine and Gulargambone. In those towns the forest industry is the major employer. That is the message that Craig Emerson is trying to get across. He is talking about real jobs with a real future, not a temporary make-work scheme. The other big question mark still hanging over the Government's decision is: Will it result in better conservation outcomes? Will it guarantee the protection of rare and endangered animals and birds, and endangered ecological communities to a greater extent than at present? Conventional wisdom is that it will. If you do not go in and chop down trees, you are protecting habitat, and by protecting habitat you protect those rare bird and animal species, such as the barking owl, mallee fowl, squirrel gliders, eastern pygmy possums and koalas in what is one of their greatest strongholds.

However, the Pilliga forests as they currently exist are very different from the way they were before Europeans arrived on the scene. So we are not turning back the clock to the time before Captain Cook arrived, as I understand one conservationist proudly declared at a meeting in Coonabarabran saving the forests would do. We are embarking on a path of unknown duration and unknown destination. In 1818, when Oxley ventured into the southern part of the Pilliga, into what is now Yarragin State Forest, he described this country as follows:

The apple tree flats are uniformly of hard ground, while the soil on which the ironbark, pine and box grow is as invariably loose sand, rendered by rain a perfect quicksand. These bogs are the more provoking, as without such impediments the country is clear and open and as favourable for travelling over as could be wished.

Oxley also wrote of the same area:

We entered a very thick forest of small ironbarks which had been lately burnt … so thick was the forest that we could hardly turn our horses, nor could the sun's rays penetrate to the sandy desert on which these trees grew.

In other words, Oxley encountered country that was similar to much of the Pilliga today, where the trees—in this case, ironbarks—grew so thickly as to make the forest all but impassable. But Oxley only skirted the edge of the Pilliga. Eric Rolls wrote an excellent history of the Pilliga. The Minister might like to know that his writings have also been quoted in the Pilliga fire management plan, so the National Parks and Wildlife Service actually gives some credibility to Mr Rolls. Eric Rolls' excellent history of the Pilliga, titled A Million Wild Acres, provides a better description of the whole area. Eric Rolls wrote:

What grew in the forest before sheep and cattle changed it? …

The frequent fires of the Aborigines and the plentiful rat-kangaroos that eat young trees stopped almost all regrowth. Here and there patches of young trees that missed being eaten shot up till they were safe from fire and grew into the sort of ironbark scrub Oxley reported.

In other words, the denser forest was only in patches and most of the country was open. Eric Rolls went on:

South-west of Narrabri swinging in a wide arc between Bohena Creek and Coghill Creek at Cuttabri was a Brigalow forest so thick the roots laced together on the surface, and five metres off the ground the long shiny leaves crowded in a canopy grey as galvanised iron. Wherever there was a clearing big clumps of Brigalow Grass thrived on the nitrogen produced by the Brigalow.

All the rest of the area, perhaps 600,000 hectares, was a pine forest broken in places by bimble box flats or yellow box slopes or stretches of belar or oak, even belts of stringy-bark on the southern hills. The pines were big and straight and they were in the last hundred years of their lives. Over much of the area they were spaced even wider apart than the ironbarks.

I ask the Minister, as he interjected earlier, to listen to this, because he might learn something. Eric Rolls continued:

Among both pine and ironbark grew a scattering of other species of eucalypts, casuarina, acacia, cassia, hopbush and so many others—a small showing of the modern profusion. But the ridges that form a grid through all the south and the east carried heavy growth then as now. It was scrub. No tree dominated in height or in numbers. It was the seed bank of shrubs and flowers and the nursery of insect-eating birds.

That is a fairly good picture of what was there at that time: 600,000 hectares of pine forest with the pines spaced even wider apart than the ironbarks, that is more than 50 metres apart, except on the ridges.

Mr Bob Debus: And now there are no ironbarks.

Mr MICHAEL RICHARDSON: No, that is not true, there are ironbarks. When I visited the Pilliga and travelled through the forest from the Newell Highway to Baradine, and from Baradine to Gwabegar, nowhere did I find country where the pines, or indeed the ironbarks, were spaced more than 50 metres apart. In most parts I found scrub so thick one could walk 30 metres into it and get lost. Those little whipstick pines, if left by themselves, will never grow any thicker. They get to a stage called lockup, when the trees measure 14 basal metres to the hectare and simply do not grow any more. If they are not thinned out, if the forest is not managed, there will not be any big trees. That is exactly how farmers saw it almost a hundred years ago. Referring to 1917, Eric Rolls's book states:

The thick pine grew in belts. Much of the forest area was still fairly open. "Look at that!" an old man will say. "Sixty, seventy years ago I shepherded a thousand sheep out there. I could let 'em all feed out and I could stand in one place and watch the whole flock. Only twenty years ago I could walk out there and shoot a kangaroo a hundred yards off easy. Now if I walked in there twenty yards and didn't watch where I was going I'd bloody get lost."

It can be seen that the area changed rapidly. How did that happen? How did country that, apart from some dense ironbark woods and clumps of cypress pines that was so open thousands of sheep grazed on it, become the Pilliga scrub? First, fire had always been an integral part of that land. When Mitchell visited the Pilliga in 1931 he reported:

The whole country was on fire.

It obscured his view of the horizon and blackened the sky at night so he could not see the stars. The squatters who took up runs in that land also burnt, but less frequently than the Aborigines had, and when they did they killed many existing trees—white cypress pine is not tolerant to fire—and allowed new trees to germinate. Previously the plentiful rat kangaroos had eaten the new shoots, keeping pine numbers down. But an extreme drought in the 1870s, plus competition from sheep, drastically reduced their numbers. The graziers brought in more and more sheep and burnt the forest to provide green pick for them. An extreme wet season in 1879 provided ideal growing conditions for the pines. By the turn of the twentieth century the country already looked vastly different from the open country that Mitchell and the earlier graziers saw.
Timber getting had started south of Narrabri in the 1870s with the first forest reserve declared in 1877. The Forestry Commission took over 40 years later with the first State forests in the area being declared in 1977. The Forestry Commission stopped burning off because it killed the pine trees. Ultimately that proved very costly. In the big wet of 1950 the grass grew tall and there was an accumulation of ground litter, which resulted in a huge fire in November 1951. The new shoots grew in profusion after the fire, as they do, and unfortunately the rabbits, which had replaced the rat kangaroos as destroyers of new shoots, were dying of myxomatosis. There were not enough rabbits to eat and kill the new shoots. Page 185 of Eric Rolls's book, referring to 1951, states:

The pines came up ten thousand to the hectare. "One year the stockmen saw the little pines just up to the top of the horses' hooves," one man told me. "The next year the pine tops brushed their boots as they rode. And a year or two after that—those old stockmen used to ride at ten past ten, knees cocked out from the saddle like wings—well, they had to jam their knees in hard behind the pads or the pines would have pushed them backwards out of the saddle. Soon they just mustered their stock and got out. There was no room for grass to grow."

That is how we ended up with the dense, close forest we see today. What the Government wants to preserve is not what was there originally, because it is man-made forest that the Premier calls icon forest. Frankly, that is one of the most overused and misused words in his lexicon. Last Saturday I attended a community meeting in my electorate at which 100 people attended. I asked how many of them had been to the Pilliga. How many does the Minister reckon had been there?

Mr Bob Debus: None, not a one.

Mr MICHAEL RICHARDSON: No, you short sell them. One person had been there. I wonder to whom these forests are iconic—Government bureaucrats, all those people on the community committee, or the people who live and work there?

Mr Bob Debus: So cut them down, the whole lot.

Mr MICHAEL RICHARDSON: I certainly do not agree with that. That might be the Minister's attitude, but it certainly is not mine. The question is, and has been for some time, which parts of the Brigalow and Nandewar bioregions should be reserved for the best conservation outcomes? The Yarragin forest, for example, which was not in the moratorium, is now reserved as national park. It is a productive forest. I gather that under the Government's package the mills will be able to go in there and harvest for the next five months. If it has such high-conservation value why would that be so? Why not lock it up now? I do not know exactly what areas have been reserved because the maps referred to in schedules 1 to 4 to the bill, on which the bill depends, have not been produced as yet.

I ask the Minister whether he proposes to produce the maps before the bill is passed, or will this be another one of those take-us-on-trust operations for which the Government is renowned? Unfortunately the very forests that are of economic value to the timber industry are also the forests that have the highest conservation value. Thin stalks of whipstick pine are of no use for building houses, and they do not support large numbers of animals and birds; they live in the bigger trees and the more open forest. Barking owls, for example, are most prevalent in areas recently logged.

[Interruption]

Barking owls are an endangered species, but members opposite laugh about that. They are barking up the wrong tree on this. Barking owls are not found among the small growth in the eastern Pilliga, neither are the glossy black cockatoos, the regent honeyeaters, the swift parrots, the turquoise parrots or the painted honeyeaters, all of which are listed by the Premier in his press release. There is a real illogicality about the Government's position. Is it the Government's intention to manage the forests in such a way that the country reverts to the open savannah woodland that dominated in pre-European times? Or are those jobs, described in such glowing terms by the Premier as short to medium term, the twenty-first century equivalent of those Depression era forest thinners?

Will those workers be forgotten after five years? I understand that the thinnings from zone 4 will be harvested and may be used for briquettes, but those in zone 1, that is the equivalent of national parks, will be left on the ground. It is a matter of real concern if that is the case, because there will be a build-up of ground litter creating the potential for major fires. There is an extensive prescribed burn regime in the nature reserve. I wonder whether that will be replicated in the new parks, because it will certainly be impossible to replicate that if the thinnings are left on the ground. So far as the thinning is concerned, the idea, apparently, is that 50 men will thin the entire area of reserves—that is 350,000 hectares—over the five years they will be employed. They are going to have to clear six hectares each a day, so I certainly think they will earn their money.

How is this going to be funded? Where is the $80 million going to come from? It is the perennial question of where the money is going to come from. It will be funded by abolishing the Waste Fund, which will be amalgamated with the Environmental Trust. The waste levy, which is supposed to have been paid into the Waste Fund, raised $102 million last year. Every time a householder in Drummoyne, Penrith, Miranda, Menai or Ryde takes his putrescible wheelie bin out to the kerb, he will be paying $1 towards the wages of a displaced timber worker in Gwabegar.

Ms Linda Burney: Read the bill.

Mr MICHAEL RICHARDSON: I am sure the honourable member for Canterbury knows all about this legislation. She is a real genius and I have really appreciated the benefit of her erudition, her wisdom and her interjections in the debate! I think they have added greatly to what is a very, very serious subject! So I thank her for her contribution; it has been most useful! The waste levy also applies to the Extended Regulated Area, which includes the Hunter, the Illawarra, the Central Coast, the Shoalhaven and the Southern Highlands. I wonder how they all feel about this. Ratepayers in the Shoalhaven will collectively pay $1 million next year to fund the protection of the "icon forests" the Premier was talking about. The Shoalhaven is not a particularly wealthy area.

Mrs Shelley Hancock: No, not at all.

Mr MICHAEL RICHARDSON: The honourable member for South Coast assures me that it is not a particularly wealthy area, and I think its residents have previously objected to the way in which they were being taxed—

Mrs Shelley Hancock: Conned.

Mr MICHAEL RICHARDSON: —or conned into paying for something they were not getting. They were not getting improved recycling outcomes; they were not getting a reduction in waste going to landfill; the Government was not doing what it promised to do with their $1 million, so one can understand they will be even more up in arms if this bill goes through the Parliament.

The objects of the Environmental Trust are being changed so that money from the trust will also be used to fund environmental groups. Environmental groups do a good job in raising awareness about conservation issues—there is no question about that—and they are funded by both the Commonwealth and the State. But I think this is being done with a view to buying off the environmental groups and ensuring that they support the legislation, because they would not want to bite the hand that feeds them. Under this legislation money in the Environmental Trust—and, as I said, it is not just about Brigalow—will also be used to fund environmental flows for the State's rivers.

That is highly desirable, but the irony is that people in the Shoalhaven will be paying to provide environmental flows in other parts of the State while the Government is taking their water for the people of Sydney. I am sure that the people down in the Shoalhaven will be absolutely enthralled by this bill; it will be a real winner for the people of the South Coast. I might have been able to excuse all of this if the levy were being used for the purpose for which it was originally intended: the reduction of waste going to landfill. But it is not. That money has been siphoned off over the past two years; it has gone into consolidated revenue. No new money has gone into the waste fund, and what has happened as a consequence? On 17 September last year the Minister told the Budget Estimates Committee:

Recycling targets were set for 2014 and the progress being made is pretty good. The target for 2014 is 66 per cent municipal recycling. In the last year it has increased from 26 to 39 per cent. The commercial recycling target is 63 per cent, which has increased from 28 per cent to 33 per cent, and the construction industry recycling, which has a target of 76 per cent, has increased from 65 per cent to 75 per cent over the last year, which is a long way round of saying that really substantial improvements are being made.

That is simply not true. The budget papers reveal that almost a million tonnes more waste went to landfill this year than was predicted two years ago. The Government predicted it would collect $83 million from the waste levy, and that was allowing for the increase of $1 plus the consumer price index in the rate over that period of time, but in fact the Government is raising $102 million—$19 million, or 23 per cent, more than it predicted in 2003, and that represents an extra 950,000 tonnes of waste going into holes in the ground, and a total of more than five million tonnes from the Sydney and extended regulated area.

[Interruption]

I agree with the honourable member for South Coast, it is absolutely appalling. Unless around 30 per cent more waste has been generated than anticipated over the past two years, which is contrary to the Government's strategy, that is not possible. No-one in the waste industry believed the Minister's figures when he quoted them, and they are the people who ought to know. The Government is obviously giving up on meeting those recycling objectives and the waste avoidance and resource recovery strategy. Before the bill was introduced, the Local Government Association had the following to say about the waste levy. The president of the Local Government Association, Councillor Genia McCaffery, called it betrayal. She said:

They removed vital funds for consolidated revenue and broke the trust the community placed in their leadership. We've investigated the possibility of simply refusing to pay the waste levies.

So the Government is now encouraging civil disobedience from local government! The bill is only going to exacerbate that situation. It provides for recycling almost as an afterthought. It amends the objects of the Environmental Trust to promote waste avoidance, resource recovery and waste management, including funding enforcement and regulation. That means it will now be used to pay the wages of all the people from the regional waste boards who were not sacked but were taken on by Resource NSW. Resource NSW folded but these people are still there beavering away at their little computers in the Department of Environment and Conservation and doing all sorts of wonderful things—everything other than the job they are supposed to be doing, which is reducing waste going to landfill and improving recycling outcomes. The trust will be used to defray the Government's cost of retaining those people.

Under the bill the Government now has a vested interest in sending as much waste to landfill as possible because the waste levy has become a tax goldmine. Every wheelie bin in the Sydney and Extended Regulated Area has become a tax cart and the Government now has no commitment whatsoever to the objectives of its waste strategy. So for a whole range of reasons—the Government's flawed logic and the fact that the legislation is flawed and will not provide all the sorts of waste and environmental outcomes that it should—the Opposition intends to oppose the bill. I foreshadow that we will move amendments in the upper House. It will be interesting to see what the Government's attitude towards those amendments will be. They are sensible amendments that will provide better outcomes for the people of the Brigalow and will provide better conservation outcomes for the people of New South Wales.

Mr PAUL PEARCE (Coogee) [12.50 a.m.]: I support the Brigalow and Nandewar Community Conservation Area Bill, which was introduced by the Minister for the Environment. The bill will give effect to an historic addition to the reserve system in western New South Wales. This is the fifth major forestry assessment carried into agreement following the regional forestry agreements in the Eden area of southern New South Wales and on the North Coast. The essence of these agreements is to strike a balance between social, environmental, cultural and economic values.

The approach adopted by the New South Wales Government has ensured the involvement of all affected parties. From an environmental perspective this has led to a significant network of conservation areas that seeks to protect biodiversity, old growth forests, and wilderness for future generations. The key employment principle is to ensure that the timber and related industries that continue in the region subject to the agreements will be sustainable both economically and environmentally. The bill will permanently protect over 350,000 hectares of high conservation value forest in a network of reserves, changing the status of public lands previously used for forestry purposes and private land that has been purchased over recent years.

Importantly, the bill will introduce a new land management tenure to be known as a community conservation area. This tenure was designed specifically for the area of New South Wales affected by the bill. The new community conservation area is aimed at achieving an appropriate balance between conservation for future generations and present employment opportunities on a sustainable basis. The key to achieving that will be a strong level of community involvement. The bill results from a five-year gestation period of extensive consultation with industry groups, the conservation movement, indigenous communities, and other affected local communities—all based on a detailed scientific analysis.
The Brigalow and Nandewar region has been subject to a century of exploitation, which has resulted in around 70 per cent of its original vegetation being cleared. The consequence of this massive vegetation clearing has been a high rate of species extinction. The Commonwealth Government even declared the Brigalow region a biodiversity hot spot, which is defined as a bio-geographic region that has a significant reservoir of biodiversity and is threatened with destruction. This region is one of a mere 15 such declared areas nationally. The Federal Department of the Environment and Heritage had this to say about the Brigalow region north and south:

The inland plains of the Brigalow belt originally supported vast vegetation communities dominated by Brigalow ... On the western slopes of the Great Dividing Range there are large tracts of eucalypt woodlands and the hotspot is also a stronghold for large numbers of endemic invertebrates.

This hotspot includes populations of the endangered Bridled Nail-tail Wallaby and the only remaining population of the endangered Northern Hairy-nosed Wombat, now limited to around 110 individuals. The area contains important habitat for rare and threatened species including the Bulloak, the Jewel Butterfly, the Brigalow Scaly-foot, Glossy Black-Cockatoo, Greater Long-eared Bat, Large Pied Bat, Eastern Long-eared Bat and the threatened community of semievergreen vine thickets. The hotspot provides important habitat for star finches and golden tailed geckos.

Broad-scale clearing for agricultural and unsustainable grazing is fragmenting the original vegetation, particularly on lowland areas, encouraging weed invasion and putting at risk woodland and grassland birds and the natural water cycle. Inappropriate fire regimes and predation by feral animals, in particular pigs, cats and foxes, pose additional threats to local biodiversity.

As I said, that assessment was made by the Federal Department of the Environment and Heritage. The declaration of the conservation reserves will go some way towards reversing the trend towards extinction. Based on a scientific analysis, the lands permanently protected by the bill arguably contain some of the highest quality habitat for a range of the most endangered species. The bill recognises that habitat preservation is the only viable means to preserve endangered and threatened species for future generations.

The forests in these regions contain an estimated 47 threatened fauna species. The bill will protect 60,000 hectares of endangered ecological communities, and it will achieve that in the context of maintaining a viable timber industry, focusing on value adding to the product. In addition, the regionally important apiary industry will continue to have access to the forest for honey production. As the Minister said in his second reading speech, the bill will also permanently protect the Goonoo and Terry Hie Hie forests, which are of particular heritage and cultural significance to the local Aboriginal community.

It is proposed that these and other forests covered by the bill could be managed through indigenous land-use agreements similar to the model used in the Arakwal National Park. The assistance package outlined by the Minister includes haulage assistance as part of the wood supply agreements, structural adjustment packages to ensure that mills remaining in the industry will focus on value adding, a business exit package for businesses that choose to leave the industry, as well as financial and new job creation funds for any timber workers adversely affected by the decisions of their employers.

The communities in the regions affected by the bill will benefit by securing long-term viable industries with appropriate levels of government support The knee-jerk reaction in Gunnedah was ill informed and demonstrates why an intergenerational view, not a simplistic focus on short-term impacts, must be taken. This approach correctly recognises that trade-offs should appropriately be borne across the community to conserve valuable flora and fauna habitat for future generations. It recognises that the current generation can no longer plunder and exhaust non-renewable resources and destroy irreplaceable habitat of endangered native fauna with impunity.

The approach of the Government reverses what non-indigenous Australians have done for hundreds of years. The bill reflects a recognition by the Government of its social, cultural and environmental responsibility to the future. The approach being pursued in the bill can be contrasted with the irresponsible decision perpetrated by the Federal and Tasmanian governments that will lead to the long-term destruction of significant areas of old growth forests, including significant portions of the Tarkine and Styx old growth areas. This is forest that can never be replaced, and this mindless approach by these governments is predicated purely on short-term political considerations.

Timber workers in these areas are being cruelly used as pawns in the debate by the Howard and Tasmanian governments and their cronies in the timber industry. The main beneficiaries of this obscene policy will be the likes of Gunns, which plunders our environmental heritage for short-term profits, destroys something irreplaceable for shareholder value, and then seeks to intimidate those who dare to make a stand against it.
As the Minister said in his second reading speech, an important part of the bill is the proposal to create a community conservation area. This concept, whilst new to Australia, is recognised internationally and is based on the categories recognised by the International Union for the Conservation of Nature. In effect, it creates a framework for the co-ordinated management of all public lands. The community conservation area will have three statutorily defined conservation zones.

Zone one will be a conservation and recreation zone that reserves certain former land as a national park under the provisions of the National Parks and Wildlife Act. Zone two will be a conservation and Aboriginal culture zone that reserves certain land as an Aboriginal area under the National Parks and Wildlife Act. Zone three will be a conservation, recreation and mineral extraction zone that preserves certain land as a State conservation area under the same Act. No commercial extraction of timber can occur in those three zones.

Whilst minor adjustments may be made to facilitate roads, access and other defined operational matters, such adjustments must not result in any significant reduction in the size or conservation value of the land. Further, with an eye to the future, clause 16 of the bill provides that future additions to these zones may be made by proclamation. Revocation can only occur by an Act of Parliament. Thus, any attempt by a future conservative government to hand these important areas back to those who would seek to profit from the plundering of our environmental and cultural heritage will have to be by a public process and will expose such a government to justifiable condemnation by the broader community, which cares about what we leave as a legacy for future generations.

While the details of the management arrangements were clearly outlined in the Minister's speech it is important to note that the management of the new community conservation area will be linked directly to the management of the existing reserve system, including the spectacular Warrumbungles, Mount Kaputar national parks and the Pilliga Nature Reserve. This is excellent legislation. It adds significantly to the Carr Government's achievements in the conservation and preservation of habitats of threatened and endangered species. It is predicated on the recognition of intergenerational responsibility and the principles of ecologically sustainable development. It is a bill that deserves the support of this House.

Mr PETER DRAPER (Tamworth) [12.59 a.m.]: I strongly oppose the Brigalow and Nandewar Community Conservation Area Bill because of the detrimental effect it will have on many country communities but, in particular, the effect it will have on Gunnedah. I acknowledge that the Mayor of Gunnedah and the upper House member Jenny Gardiner from The Nationals are in the gallery at this late hour. We are hearing claims and counterclaims from both sides of the debate about the amount of timber that will be available to the industry. Therefore, I call on the Government to conduct an independent assessment of exactly what timber is available and on offer from State Forests over the 20-year life of the contract being offered to Gunnedah Timbers by the Government. I will return to this later in my contribution.

The Government's announcement of a new package of conservation and forestry initiatives has provoked anger and frustration in the timber community in my electorate, that is, Gunnedah. The town of Gunnedah, represented by around 1,500 people, aired their thoughts on this bill during a rally on 2 June. The rally attracted community members and timber workers from surrounding communities, including those who live near the Pilliga State Forest, Narrabri, Baradine and Tamworth. The sentiment expressed by the attendees was clear, and I fully support their stance. I quote from the resolution passed unanimously at the rally, which states:

That the Gunnedah and District communities condemn the State Labor Government for converting the Brigalow Belt South Bioregion into a Community Conservation Area, and requests that the Government reverts to the Brigalow Region United Stakeholders option which has overwhelming community support.

I have always supported the Brigalow Region United Stakeholders [BRUS] option. This option allowed for a 2 per cent reduction to the current volumes of white cypress pine with little or no impact on the existing timber industry. It proposed 189,000 hectares of conservation reserves compared to 348,000 hectares of the best quality timber to be locked away under this bill. The BRUS option took shape from 24 stakeholders and took into account Aboriginal cultural heritage, job security, a viable timber industry, industry development opportunities, community vitality, management and access to public land, and protection of native vegetation, biodiversity and natural processes.

The Government is yet to explain to stakeholders and the affected communities why it has not adopted this option. It is also yet to release Ian Sinclair's report—which is believed to have recommended the BRUS option—despite repeated requests that it make the document public. The Government has clearly chosen the Green vote over the best interests of country communities, and those attending the rally expressed the strong sentiment that the Government has forsaken country people to attract the Sydney Greens vote in the State election scheduled for 2007. Through the rally, the community of Gunnedah has also asked the Government to honour its commitment to provide access to the resources needed to maintain the viability of the industries that rely on this resource for their livelihood.

I was presented with a petition containing the signatures of 2,400 people from Gunnedah and surrounding areas asking for this commitment and The Nationals have submitted it in the other place. As the petition was distributed by the Hon. Rick Colless, it is only appropriate that he present it to the Parliament, but I am extremely disappointed that Jenny Gardiner has chosen yet again to politicise the issue by issuing a media release tonight somehow claiming victory for The Nationals because I am not in the upper House. She simply reinforces my original concerns that The Nationals are only interested in headlines, not outcomes for the community. It is time for Jenny Gardiner to put aside her disinterest in the issue. She stood up in the other place and said many offensive things about timber workers, and I shall quote in small part her contribution, which stated:

The people in the timber industry are the most defenceless people that one could meet. Many of them are illiterate workers.

These are not the words of somebody interested in the workers; they are the words of somebody looking for cheap headlines. She does the industry and the workers a great disservice by continually pushing this destructive agenda. The community has made it clear that this decision will impact not only on timber workers, but also on the economy of the entire town and district. Gunnedah Timbers currently employs 50 workers at its Gunnedah and Baradine mills.

Mr ACTING-SPEAKER (Mr Paul Lynch): Order! Government and Opposition members will come to order.

Mr PETER DRAPER: The workers in mills targeted for an exit package by the Government have been offered up-front payments of $72,000 should they choose to walk away from the industry or a reduced payment of $27,000 plus a guaranteed new job at or near where they live. I am not aware whether this package is currently on offer for Gunnedah Timbers, especially as the Government views it as a viable ongoing industry player. But no amount of alternative jobs will compensate for the fact that should Gunnedah Timbers qualify for a payout and decide to close, Gunnedah and district will lose the economic benefit and business diversity of an entire industry. Timber workers do not want council jobs or timber thinning jobs. They want to remain part of a thriving, sustainable timber milling industry. In Gunnedah 22 businesses have been identified as reliant on Gunnedah Timbers for its by-products, including timber transport, brickworks, composting, nurseries, landscape suppliers and disability services. If the mill closed, these jobs would be affected in these linked businesses, but there has been no consideration of them or the impact on the town, where there will be an inevitable downturn in trade.

Universal Composts owner Patrick Hennessy broke down in frustration and anger when he addressed the Gunnedah rally as his composting business, which is solely reliant on the mill's woodchips, will be bankrupt if the mill closes. However, not a single Government representative was on hand in Gunnedah to witness Mr Hennessy's heartfelt plea for commonsense to prevail. The Government maintains that the bill will provide timber millers such as Gunnedah Timbers with sufficient resources to remain viable throughout the life of the 20-year contract on offer. It has offered timber mill owners a fully compensable 20-year contract and a guaranteed quota of 57,000 cubic metres per annum.

I call upon the Government to have an independent assessment made of the actual volumes of timber available to the industry. Completely conflicting information is coming from the Government and from the timber industry in Gunnedah. Quite frankly, it is high time we heard the truth about the situation. I have been critical of the compensation package offered to timber millers since it was announced because, in my opinion, it is far too generous. It is so substantial that viable businesses such as Gunnedah Timbers, should they qualify for an exit package, will face a difficult choice—whether to remain in the industry with a guaranteed 20-year supply or take the $9 million on offer and walk away with a guarantee that their workers will receive compensation packages worth $26,000 and a guaranteed job or up to $76,000 on top of their existing entitlements.

The contracts being offered by the Government would lock in a guaranteed quantity and quality of timber for 20 years. If these were not delivered, Gunnedah Timbers would have the right to ask for compensation from the Government, which will underwrite the contracts. It would then be open to Gunnedah Timbers to litigate this issue if they were still unhappy and receive court ordered compensation. At any rate, nobody in the debate to date has mentioned the fact that Gunnedah Timbers has an existing contract that runs for a further five years. At the very least, I believe Gunnedah Timbers should let this run through to completion and then assess their options in 2010.

The five years of the current contract will deliver a guaranteed contracted 27,000 cubic metres per year, with an annual quota of about 8,000 cubic metres per year. That is a quota usually delivered in full but not absolutely guaranteed by Forests NSW in the same way that the contracted volume is. This means that at the moment Gunnedah Timbers can expect 175,000 cubic metres of cypress pine to be delivered to it over the next five years. I am advised that under the new 20-year contract Gunnedah Timbers would receive contracted volume of 33,000 cubic metres per year. That means that between now and 2025 it would have delivered 660,000 cubic metres all up guaranteed and fully compensable, should the Government fail to deliver the quantity or quality.

Mr ACTING-SPEAKER (Mr Paul Lynch): Order! The honourable member for Lismore will cease interjecting.

Mr PETER DRAPER: In addition, I have been advised that the Government is prepared to invest in the operations of Gunnedah Timbers to allow further diversification at the rate of $2 for every $1 invested by Gunnedah Timbers. The moratorium has been lifted and all compartments that were affected by it that are now in zone 4 productive forests are available and open to the industry. The Minister for Primary Industries has attempted to bolster the allocation through the announcement of an additional area of 15,000 hectares of forest transferred back to Forests NSW for productive use by the industry. But the offer has failed to appease Gunnedah Timbers principals, George and Paddy Paul, who still have concerns over access to quality and quantity of raw product. An independent assessment is important to bring clarity to the debate and resolve the dispute between the mill owners and the Government.

The bottom line is that the community wants the timber industry to remain in Gunnedah, and the mill owners are facing a clear choice between continuing their business with a guaranteed supply, with the guarantee of a full compensation package every year should the Government be unable to deliver on its contracted agreement in regards to quantity and quality. Alternatively, the company could take the $9 million package should it be deemed eligible. This is understandably a very difficult choice and the true availability of quantity and quality must be clarified. The independent assessment must make it abundantly clear to Gunnedah Timbers that there is guaranteed access to the right quality and quantity of timber supplies so it can accept the Government's offer of a 20-year contract.

The Government has indicated a willingness to then invest in state-of-the-art milling equipment to help Gunnedah Timbers maximise production and value add to its products, should the mill owners wish to expand their business further. The mill should stay, the industry and jobs should stay and the businesses reliant on it should remain viable. In the mind of the timber communities in the north-west, the BRUS option was the obvious way forward and, in the absence of its consideration and implementation, on their behalf I reiterate that I strongly oppose this bill in its current form. I call on the Government to listen to the community and adopt the BRUS option.

Debate adjourned on motion by Mr John Mills.

Bill received and read a first time.

Second reading order to stand as an order of the day.
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