Full Day Hansard Transcript (Legislative Assembly, 28 August 2008, Corrected Copy)

LEGISLATIVE ASSEMBLY

Thursday 28 August 2008
______

The Clerk announced the absence of the Speaker.

The Deputy-Speaker (Mr Tony Stewart) took the chair at 11.00 a.m.

The Deputy-Speaker read the Prayer and acknowledgement of country.

BUSINESS OF THE HOUSE

Suspension of Standing and Sessional Orders: Routine of Business

Mr JOHN AQUILINA (Riverstone—Leader of the House) [11.02 a.m.]: I move:

That standing and sessional orders be suspended to provide for the following routine of business at this sitting:

The normal procedure would be for private members' bills to be dealt with on Thursdays and, of course, under sessional orders there is no provision for question time on Fridays. It is the Government's intention during these two sitting days that we have what could be termed a normal sitting day involving Government business, including question time, and the opportunity to make private members' statements and to debate a matter of public importance and the motion accorded priority. I am moving this motion to allow for the business I have outlined to be dealt with both today and tomorrow.

Mr Chris Hartcher: Why are we here?

Mr ADRIAN PICCOLI (Murrumbidgee) [11.06 a.m.]: That is a good question. Why are we here? Parliament has been recalled to debate the Electricity Industry Restructuring Bill 2008. I move:

Question—That the amendment be agreed to—put.

The House divided.

Ayes, 32

Mr Aplin
Mr Baird
Mr Baumann
Ms Berejiklian
Mr Cansdell
Mr Constance
Mr Debnam
Mr Draper
Mr Fraser
Ms Goward
Mrs Hancock

Mr Hartcher
Ms Hodgkinson
Mrs Hopwood
Mr Humphries
Mr Kerr
Mr Merton
Ms Moore
Mr Page
Mr Piccoli
Mr Provest
Mr Richardson

Mr Roberts
Mrs Skinner
Mr Smith
Mr Souris
Mr Stokes
Mr J. H. Turner
Mr R. W. Turner
Mr R. C. Williams
Tellers,
Mr George
Mr Maguire

Noes, 50

Mr Amery
Ms Andrews
Mr Aquilina
Mr Borger
Mr Brown
Ms Burney
Ms Burton
Mr Campbell
Mr Collier
Mr Coombs
Mr Corrigan
Mr Costa
Mr Daley
Ms D'Amore
Ms Firth
Ms Gadiel
Mr Gibson

Mr Greene
Mr Harris
Ms Hay
Mr Hickey
Ms Hornery
Ms Judge
Ms Keneally
Mr Khoshaba
Mr Koperberg
Mr Lynch
Mr McBride
Dr McDonald
Ms McKay
Mr McLeay
Ms McMahon
Ms Meagher
Ms Megarrity

Mr Morris
Mrs Paluzzano
Mr Pearce
Mrs Perry
Mr Rees
Mr Sartor
Mr Shearan
Mr Stewart
Ms Tebbutt
Mr Terenzini
Mr Tripodi
Mr Watkins
Mr West
Mr Whan
Tellers,
Mr Ashton
Mr Martin

Question resolved in the negative.

Amendment negatived.

Motion agreed to.

MENTAL HEALTH LEGISLATION AMENDMENT (FORENSIC PROVISIONS) BILL 2008

Agreement in Principle

Debate resumed from 27 June 2008.

Mr GREG SMITH (Epping) [11.14 a.m.]: The Opposition does not oppose the Mental Health Legislation Amendment (Forensic Provisions) Bill 2008, which is intended, among other things, to rename the Mental Health (Criminal Procedure) Act to the Mental Health (Forensic Provisions) Act—which seems to be a sensible change—to confer on the Mental Health Review Tribunal, instead of the Minister for Health, the power to order the release of forensic patients from mental health facilities, the power to grant leave to such patients and the power to make orders as to the care, treatment and detention of such patients. The bill will also establish the forensic division of the tribunal to exercise those functions, and will, most importantly, provide for appeals from decisions of the tribunal in exercising those functions. It will clarify the responsibility for arrangements for care, treatment, security and release of patients transferred from correctional centres to mental health facilities, who will be called correctional patients, and forensic patients held in correctional centres.

The bill will set out conditions that may be imposed on an order for release and matters that must be considered by the tribunal in making decisions. It will require the tribunal, when making decisions about all patients, to consider whether care arrangements that may be alternatives to involuntary care are consistent with safe and effective care. It will make various amendments relating to community treatment orders. It will provide for the recognition of victims of forensic patients and correctional patients. That is a very important provision, one that is long overdue. The bill will make other minor and consequential amendments and provide for savings and transitional matters consequent on the enactment of the proposed Act.

The bill follows a review of the mental health legislation undertaken in 2004. The review culminated in the Mental Health Act 2007 but the forensic provisions were purposely omitted from that legislation in order to finalise the sensitive provisions around such legislation. The review of the forensic provisions of the Mental Health Act 1990 and the Mental Health (Criminal Procedure) Act was conducted by Mr Greg James, QC, President of the Mental Health Review Tribunal, formerly Mr Justice James. The report was presented in August 2007 with 34 separate recommendations, mainly focused on the appropriate authority to make decisions as to the terms and conditions of detention and the release of forensic patients. The report recommended:

Many would not find it surprising that the President of the Mental Health Review Tribunal, tasked with this report, has recommended that more power be vested in his body. But we are not being unkind; he has conducted a very useful review. He is very able to do the job he is doing. The move will take away the present executive discretion, which the Government claims is cumbersome and overly bureaucratic and lacks transparency or accountability. The Government has pointed to the detention of unconvicted patients in jail for inordinate periods as one of the reasons for this change. This is a very sensitive area. Many unconvicted mental health patients cause great trauma for the families of deceased victims. The families are exposed to trauma every time the matter is to be reviewed again. The release of such patients has been well publicised in the media and elsewhere. Somehow society has to address the issue. I am hopeful, and the Government is confident, that these new provisions will remove at least some of that trauma.

Obviously, one cannot bring back the dead; one cannot restore the health of a person that has been ruined by someone who has acted in what would otherwise be seen as a criminal way, and a nasty and aggressive way, towards an innocent person. It is understandable that the media and the public are concerned that some of these people seem to walk away from detention after a very short period on the basis of an assessment at the time of the trial that they suffered a mental condition that made them not responsible for what they did or, in some cases, that they were not able to be convicted because they had gone through a special hearing which does not equate to a trial leading to a conviction. The forensic division of the tribunal, presided over by a sitting or former judge, will make orders for care, treatment leave and release of forensic patients, with reference to the matters for consideration under proposed section 74. Proposed section 74 provides:

"Limiting term" is the expression used when a person, on the available evidence, would have been convicted if found fit to stand trial. The elements, apart from the necessary element of intent and understanding, are made out. In a case of murder, it would be seen that if the person killed another person deliberately or by reckless disregard to life, or otherwise appeared to have had intent to kill or cause serious harm, the Crown does not have to prove the intention to do those things. The judge who imposes the limiting term, after a special hearing, would generally fix the sentence that the person would have received had they had all their faculties and then were tried in a normal trial. This is where care must be taken. The Minister for Health may make submissions to the tribunal concerning individuals before the tribunal, and can appeal under section 77A. Proposed section 77A is an important new provision because it introduces a number of appeal rights for the Minister and for the forensic patient or correctional patient. Proposed section 77A (a) provides:

A forensic patient or correctional patient who is a party to a proceeding before the Tribunal under this Act may appeal to the Supreme Court from any determination of the Tribunal in that proceeding, by leave of the Supreme Court:

Subsection (4) deals with an appeal to the Court of Appeal, by leave of the Court of Appeal. Proposed section 77A (2) provides:

Subsection (5) provides:

In other words, the Minister has two options in these cases: he or she can go straight to the Court of Appeal or straight to the Supreme Court. I must say, I am a little confused as to why both remedies are available to the Minister. Perhaps I have read the provision wrongly. It might depend on the point that is in issue. Obviously, the Minister would want to go to the Court of Appeal if he or she wanted to clarify the law on a matter. The law has been quite difficult in this area, and therefore we hope that the bill will make the legislation much easier to interpret. Under section 76 a victim of a forensic patient who is a party to a proceeding before the tribunal may appeal to the Supreme Court from any determination of the tribunal, by leave of the court, on a question of law or on any other question.

Under subsection (6) of section 77A the Attorney General may appeal to the Court of Appeal from a determination of the tribunal under the Act as to the release of a person, as of right, on a question of law. Section 77A, which contains many other provisions, is a very important section that has been long missing. Ordinary victims and their families would not normally have the wherewithal or sufficient money to challenge a matter in the Supreme Court: it would be too expensive for them. I assume that the Government will be generous in its assistance to those people, through legal aid or other provisions, to help them challenge what they believe to constitute unfairness. Of course, if it were automatic that such a person received legal aid to do so, the court would probably be flooded with cases of relatives and victims challenging such decisions. Obviously, the leave provision is required to discourage a flood of cases where people do not have a substantive argument to show error in the tribunal.

The tribunal will be able to release a forensic patient only if it is satisfied that the safety of the patient and the public will not be seriously endangered. That is a prediction that has to be made. I have been involved in such cases. In one of those cases, a sad case in the Court of Criminal Appeal, a man sought to appeal a finding against his father, who had lived a good life until he suffered dementia. Ultimately he was put into a mental institution, which was in a dormitory situation, and for some reason that no-one could work out, he killed one of the other patients during the night. He was dealt with and given a limiting term, and under the provisions of the Criminal Appeal Act he had no right of appeal. I took up the issue in court. The son and the rest of the family were distraught because effectively their father had been branded a murderer. He had not been convicted of murder even though he had killed somebody whilst residing in a mental institution. People placed in mental institutions, not for committing any acts of aggression against other persons, must still be watched and looked after carefully under the Mental Health Act.

Under section 45 of the Act a recommendation for a person to be released would be forwarded to the Attorney General and to the Director of Public Prosecutions. The Director of Public Prosecutions would then have 21 days in which to indicate whether or not he intended to proceed with criminal charges. The tribunal has the power to order a conditional or unconditional release. If the tribunal orders a conditional release the person is still treated as a forensic patient and is subject to six-monthly reviews. After receiving those letters from the Director of Public Prosecutions most cases are not proceeded with because the patients are sick, they are being cared for, and they are receiving treatment in State-run mental institutions. Sometimes public interest issues are so strong that those cases are not proceeded with, so I do not foresee any problems with changing or removing that provision. Proposed section 160 (j), which will enable the establishment of a victims register, provides:

Importantly, proposed section 76 will allow for orders to restrict a person from associating with a victim or from visiting certain places. When people are released many victims and their families are paranoid about what might then occur. Sometimes a family member wants to return home but other family members do not want to see that person because of what he or she has done. Proposed section 76 will give the tribunal power to restrict that sort of association, which might seem harsh for a patient, but one can understand a victim's concerns. Proposed section 76G provides for persons to be released or granted leave.

Proposed sections 41 and 42 insert definitions for "correctional patients" and "forensic patients". Under this definition "forensic patients" will include only those who have been found not guilty of committing a crime due to mental illness; it will no longer cover those who are convicted and transferred to a mental facility. Under proposed section 41 those individuals will now come under the definition "correctional patients". Proposed section 16 contains important provisions relating to the fitness of a patient to plead or stand trial. When it is impossible to take instructions from someone who is charged with a criminal offence because he or she is not able to think rationally, that person may be deemed unfit to plead. A hearing would then take place at which point all the evidence would be put before a judge and sometimes a jury.

Those proceedings, which are not adversarial, are more in the nature of an inquiry and have a different onus of proof. A judge, who is sometimes aided by a jury, conducts such an inquiry and if a person is found fit to stand trial that process will then commence. If a person is found unfit to stand trial, the matter is referred by the court to the tribunal. If the jury that was used to determine the fitness of someone to stand trial was then discharged it would play no part in determining guilt; a new jury would be empanelled if a person was found fit to stand trial.

I was involved in a fitness hearing that lasted for over two weeks involving a case in which it was alleged that there were cognitive rather than mental problems. A woman was alleged to have slipped on a banana peel in the Rapallo theatre and she damaged her hip. She subsequently commenced legal proceedings against Greater Union theatres and the Rapallo theatre closed the following week. The proceedings, which ended up in the High Court, were lost.

During the fitness hearing the woman was charged with conspiracy to supply heroin and all the examining doctors from the civil proceedings and others were called to give evidence. The woman used to sit on the floor of the court blowing raspberries, ripping up bits of paper and throwing them around, but we had evidence from private detectives that this woman, who had been filmed doing housework, was not supposed to have been able to do anything. The crunch came on her birthday when she sent her husband to the store to get some groceries—

Mr Richard Amery: And she never came back!

Mr GREG SMITH: No, the woman was not aware that her phone had been intercepted. Her husband phoned home, wished her happy birthday and then asked, "How many loaves of bread and pounds of potatoes do you want?" The woman, who did not respond in endearing terms, said, "I told you that I want two loaves of bread—one brown and one white—and I want four kilograms of potatoes." This woman was not supposed to be able to discuss things with anyone as a result of her claim that she had suffered brain damage after slipping on a banana peel. It was established that she did not have any brain damage. The fitness jury found her fit to stand trial, the trial jury found her guilty of conspiracy to supply heroin, and she lost her appeal. That unusual case did not involve someone who had a mental illness; it involved someone who claimed to have a mental disability.

I was also involved in an appeal case involving a person named Mailes. He killed a barmaid in Albury and threw her into a clothing bin in order to get beer money. He was not mentally ill; he was intellectually backward. It is interesting that this legislation does not preclude those sorts of cases. It was established that, intellectually, he was in the bottom 5 per cent of the community. In his police interview he came up with a clever and feasible alibi about how he was with his girlfriend at the time. For a while the police were left scratching their heads until they spoke to his alleged girlfriend who had not seen him for years. When he was assessed at the beginning of his trial and his fitness hearing took place the jury determined that he was fit to stand trial. However, he misbehaved so badly throughout the trial that the judge turfed him out and said he would not tolerate any behaviour that interrupted a murder trial. He sent the judge a message, said that he would be a good boy, and after a day or so he was allowed to return to the trial. His ground of appeal was that he was unfit to stand trial and he won.

The Court of Criminal Appeal delivered a lengthy judgement, Mailes underwent a second fitness hearing, and he was found unfit to stand trial. He then attended a special hearing and received the same sentence that he had originally received. Sometimes people who are not mentally ill become subjected to the mental health and forensic systems as no other system can deal with them. The Minister might correct me and state that that has now been changed. It is something of an anomaly that someone like this was dealt with under the mental health system. However, at the time there was no other way to deal with him. Other people who suffered memory loss claimed that they were unfit to stand trial but their cases did not succeed.

These issues require significant review. This legislation might improve those issues somewhat but it must also be closely watched. It is a difficult area in which to legislate. I recall a case in the High Court involving a woman who took the rap for somebody else and who ended up being charged with conspiracy to pervert the course of justice. In the end she had to attend a special hearing because of the nervous condition she developed as a result of taking the rap for her boss for a speeding fine as her boss stood to lose her licence.

The Crown had a reasonable case but when she became unfit to stand trial a special hearing took place in which it was argued that the judge had given an inadequate opening statement to the jury and that there should be a rehearing. Ultimately, the High Court accepted the argument. That case was dealt with under the special hearing provisions of the Mental Health (Criminal Proceedings) Act. That person was not mentally ill in the normal sense; she made a recovery. She was suffering from an acute state of anxiety and depression, which are mental conditions but which often are curable by treatment and people can go on and lead normal lives. She applied to become a solicitor but failed in her application.

There are a number of arguments for and against the bill. The bill makes changes to modernise the law with respect to individuals who commit crimes but who are not convicted of their charges due to mental illness. Changes to the legislation seek to ensure that legal experts—and I would add psychiatric experts and other experts—are involved in decision making regarding detention, and that the process is transparent and open and involves victims of crime. I do not criticise any Minister when I say that, but Ministers have to do many things. Perhaps someone who is focused on the issue should deal with it quickly.

Changes to differentiate correctional patients and forensic patients recognise the different nature of those persons and ensure their proper classification. In this difficult area of individuals who commit crimes, or the actus reus of crimes—the actions or omissions that constitute a crime—but who are not convicted of their offences due to mental illness, there is always considerable public concern and fears about manipulation. I have acted in cases—and I have mentioned a couple already—in which there was a suspicion of manipulation of the system.

The legislation may be seen as watering down current provisions with respect to these patients, especially changes that release persons without allowing the Attorney General or the Director of Public Prosecutions to make determinations to commence prosecutions, although current practice is that these matters are limited to cases where those authorities would not be inclined to prosecute. Empowering the Mental Health Review Tribunal with decision making with respect to forensic patients away from the Minister may bring independence to this decision making but may also take away from ministerial accountability. Various agencies have been consulted and nobody has told us we should oppose the proposed legislation. Therefore, we do not oppose the bill.

Mr NINOS KHOSHABA (Smithfield) [11.44 a.m.]: I support the Mental Health Legislation (Forensic Provisions) Amendment Bill 2008, which represents some of the most significant forensic mental health care reforms in this State. In 2006 the President of the Mental Health Review Tribunal, the Hon. Greg James, QC, was tasked with examining a range of options for reform in this area. The review arose out of a broader review of the Mental Health Act 1990 that commenced in 2004. Due to the complexity of issues involved in the area of forensic mental health and the range of reform options available the Government considered that further work was necessary to determine the appropriate way forward. The forensic review examined a range of matters including the appropriate authority or person to make decisions about the care, treatment and control of forensic patients; the mechanisms for ensuring issues of public safety are properly considered; and the role of victims of crime and the means by which their views and concerns are addressed.

A consultation paper identifying current issues, outlining possible options and inviting submissions was released in December 2006. Mr James undertook extensive consultation with key stakeholders including health professionals, agencies involved in the provision of services, and victims groups. Mr James' report, which was accepted by the Government, was released in April 2008. The main area of significant reform involves the way in which decisions affecting forensic patients are made. For the first time decisions on the release of forensic patients, formerly the responsibility of the executive through what is known as executive discretion, will be handed to a specialist division of the Mental Health Review Tribunal, to be established to oversee the management of forensic patients.

Orders for the care, treatment and release of forensic patients will be made by the forensic division of the tribunal using a specially constituted panel which, under the legislation on matters of release, must be presided over by a sitting or former judge. The division will be given detailed processes to follow when making decisions and managing any breaches of conditions that have been imposed on patients on leave or conditional release. Strict statutory criteria will have to be met before a patient can be released. Most importantly, these processes will place an overriding emphasis on the assessment of questions of public safety.

Under the changes there is also provision for the Government to make submissions in cases where a special forensic panel is considering the release of the patient. Also, formal appeal mechanisms will be available to the Government to ensure that the strict criteria applying to the release of patients is met. Under the legislation the Minister for Health will have a right of appeal on questions of fact and law from decisions of the tribunal, and the Attorney General has a right of appeal on questions of law. Other significant reforms include the formal recognition of the role of victims of crime in the forensic decision-making process and the ability of the Mental Health Review Tribunal to make treatment orders for correctional centre inmates.

When introducing the bill the Minister indicated that the Government has accepted the great majority of the recommendations made by the review. The main exception is the intention to maintain the current right of police to be advised of the proposed release of a forensic patient. These changes represent significant reform in the forensic mental health area and will bring New South Wales into line with most other States and Territories and international jurisdictions. I commend the bill to the House.

Mr GREG APLIN (Albury) [11.48 a.m.]: I support the statements made by the shadow Attorney General, the member for Epping, relating to the Mental Health Legislation Amendment (Forensic Provisions) Bill 2008. I note that one of the major issues to be reformed by this amendment to the Act is the removal of executive discretion or ministerial sign-off that has been under discussion for more than 25 years. In fact, New South Wales remains one of the few jurisdictions—other than Western Australia and the Commonwealth—that have continued with this provision. The amendment is supported but we find that it highlights a number of missed opportunities for more comprehensive reform that are outlined in the consultation paper prepared by the Hon. Greg James, QC, President of the Mental Health Review Tribunal.

The Government has had a good number of years to provide appropriate reforms to these forensic provisions. The consultation paper prepared by the Hon. Greg James, QC, should be applauded. In fact, it gained favourable responses from the Mental Health Coordinating Council, the Council of Social Service of New South Wales and the Consumer Advisory Group, which has been battling with State authorities on these matters for many years. The insight and comprehensive approach, in a legal and moral sense, that Greg James brought to the issues faced by the Mental Health Review Tribunal and the forensic clients who faced the same problems made his consultation paper a very compelling document. The supporting views of organisations such as the Mental Health Coordinating Council, the Council of Social Service of New South Wales, and the Consumer Advisory Group reaffirmed his views on the reforms required in the legislation. The removal of executive discretion or ministerial sign-off on forensic patients deemed suitable for release is appropriate and removes the stigma of the old "at Her Majesty's pleasure" approach.

It is unfortunate that this Government and previous New South Wales governments have taken so long to move towards a more medically appropriate form of release for these patients and to legislate appropriate safeguards and considerations that medical professionals have to satisfy prior to allowing the release of forensic patients. It appears from material provided by the Consumer Advisory Group, which spoke with 25 former clients of the forensic health system, that rejection of a substantial number of conditional and unconditional releases by the Minister resulted in heightened frustration for clients. Clearly there is a role for medical professionals who have appropriate qualifications and contact with patients to make these judgements and recommendations.

The Consumer Advisory Group submission observed that the system of decision making contradicted the objects and principles of the Mental Health Act, namely, to provide "best possible care in the least restrictive environment" whilst ensuring "timely and high-quality treatment and care in accordance with professionally accepted standards". It could be said that media attention could prejudice the release of a forensic patient and Ministers could be influenced more by public opinion than medical diagnosis. Appreciation for community concern and victims is still an issue, but our mental health professionals who carry this great responsibility do not make recommendations lightly. The same could be said for the Mental Health Review Tribunal.

The legislation relating to consideration of conditions for leave of absence or release is welcomed for both correctional and forensic patients, requiring both the Mental Health Review Tribunal and the treating psychiatrist to be satisfied that the safety of the patient or any member of the public will not be seriously endangered. This type of planning already occurs but the adoption of this legislative requirement will ensure that this important administrative issue is managed appropriately. Significantly, the Government has missed some important opportunities in the amendments to this Act. I draw the attention of the Government specifically to people with intellectual disabilities and children.

I turn, first, to people with intellectual disabilities. This is a difficult area as people with intellectual disabilities are not necessarily mentally ill and on some occasions patients can be suffering both from a degree of intellectual disability and from a mental illness. The Mental Health Coordinating Council identified that people with intellectual disability may be classified as forensic patients and that the absence of a consistent definition of "intellectual disability" throughout several Acts that deal with people with intellectual disability has led to considerable confusion, particularly where co-morbidity of intellectual disability and mental illness occur.

The Hon. Greg James noted that the position of people with intellectual disabilities within the criminal justice system has recently been the subject of several inquiries. Particular options that may be desirable include expanded mechanisms for diversion from the criminal justice system and the provision of alternative forms of detention within the community. Although the Department of Ageing, Disability and Home Care has done some work in this area, a feasibility study is required into secure accommodation options for prisoners with an intellectual disability.

The Mental Health Coordinating Council highlighted the need for a special provision for people with intellectual disabilities within the forensic system and stated that a special intellectual disability review tribunal should be established as a division of the Mental Health Review Tribunal with the same powers as the Mental Health Review Tribunal to release and divert people with an intellectual disability into the most appropriate alternative community services. It is clear from the paper of the Hon. Greg James, QC, and from the submissions of the Mental Health Coordinating Council, the Consumer Advisory Group and the Council of Social Service of New South Wales, that this matter must be addressed and further investigations and inquiries are required to produce appropriate legislation for intellectually disabled people who come into contact with our corrective services.

The 2005 report of the New South Wales Select Committee on Juvenile Offenders suggested that the Government should consider the practicality and appropriateness of establishing specialist mental health units within juvenile justice centres or a purpose-built facility for young people with a mental illness. The Government's response to that inquiry was the development of a 15-bed male adolescent unit in the new Long Bay forensic hospital. It is unknown where and how many adolescent female patients will be accommodated. It is understood that the Government may be considering collocating young women over the age of 16 years within the Long Bay women's unit. That facility is to house children up to the age of 18 years suffering from a mental illness who have committed an offence. The Hon. Greg James, QC, noted that there is a general lack of information regarding the position of juveniles in the forensic mental health system. The 2004 NSW Health discussion paper noted concerns that the special needs of juveniles may be overlooked or not properly met by the forensic mental health system.

The Mental Health Coordinating Council advocated that all juvenile offenders with a mental illness should receive treatment, care and necessary programs and services in secure adolescent community mental health facilities in collaboration with the Department of Juvenile Justice and Justice Health rather than in the new Long Bay hospital facility. The Council of Social Service of New South Wales noted that in 2005 the Select Committee on Juvenile Offenders expressly recommended that young people and adults should not be collocated. Why has the Government ignored the opinions and recommendations of inquiries, select committees and representative organisations on this matter? It could mean that it has dismissed expert advice, or that the costs of providing a separate facility are the major deterrent.

Legislation must be enacted to make specific provision for children in the forensic mental health system. I strongly urge the Government as a matter of priority to conduct a further inquiry into this most important issue. The Mental Health Coordinating Council was concerned that the development process of this amending bill would not follow the same pattern as the 2007 amendments to the Mental Health Act. The Mental Health Coordinating Council expressed disappointment about the fact that proposed amendments were not made available prior to the introduction of this legislation to give us an opportunity to fine-tune them. The Mental Health Coordinating Council believes that a rationale or explanation paper should be provided to concerned organisations—I would support such a document—outlining the reasons why those final amendments were reached. It would assist the Government and organisations such as the Mental Health Coordinating Council when requested to provide input and opinion as part of this process.

The Opposition supports the Mental Health Legislation Amendment (Forensic Provisions) Bill 2008 as it addresses a number of outstanding issues relating to the management of forensic patients. I am disappointed that it has taken the Government a number of years to address these issues, and that two major areas, that is, intellectual disability and children, remain unresolved. The Government must address as a matter of priority those issues involving intellectual disability and children. The Hon. Greg James has shown us the way. The respected organisations that I mentioned—the Mental Health Coordinating Council, the Consumer Advisory Group and the Council of Social Service of New South Wales—expressed support for these issues. It is disappointing that they have not been resolved at this point. Nevertheless, the Opposition does not oppose the bill.

Ms NOREEN HAY (Wollongong—Parliamentary Secretary) [11.59 a.m.]: I support the Mental Health Legislation Amendment (Forensic Provisions) Bill 2008, which represents the culmination of extensive consultation and recommendations by the Hon. Greg James, QC, retired Supreme Court judge and President of the Mental Health Review Tribunal. In 2006 the Hon. Greg James was tasked with examining a range of options for reform in this area. The full report is available on the websites of the tribunal and the Department of Health. The bill provides for the determination of detention, care and treatment of mentally ill offenders by a Mental Health Review Tribunal panel, which includes a forensic psychiatrist and is presided over by a former judge. This degree of legal oversight will ensure appropriate regard for the law. The tribunal will apply an evidence-based modern risk assessment process independent of treating teams to ensure no significant danger to patients or members of the public.

The material to support the release of patients will meet the standard required by recent sentence extension legislation and will require specific statutory criteria to be met. The Attorney General and the Minister for Health will have available to them a right of appeal to the Supreme Court. Patients and victims also may appeal. The process will be removed from the political arena, but will give a voice to Ministers, victims' carers and patients. Victims' organisations support the bill, which provides for a victims' register, the issuing of a notice of possible release and conditions to protect victims in jail. The measures in the bill will complement the reforms in the Mental Health Act 2007 and allow care consistent with the standard provided in the general community. The bill will allow for community treatment orders [CTOs] in jail and in a modern newly purpose-built secure psychiatric hospital, including for prisoners requiring mental health treatment while detained on remand or during the period of sentence.

As the Minister indicated, the care, treatment and monitoring of patients covered by these laws involve a range of government agencies. One important element from the overall review of the Mental Health Act was the need to enhance and support agency cooperation in providing services to persons suffering mental illness—a key consideration when considering the situation of forensic patients. The bill will facilitate relationships between the Department of Health, the Department of Juvenile Justice, Justice Health, the Department of Corrective Services and the Department of Ageing, Disability and Home Care to allow appropriate and coordinated patient care, treatment and detention, and the proper and most appropriate allocation of resources overall. The bill complements the work of the New South Wales Law Reform Commission in its reform of the law, and sentencing and court practices relating to those unfit to stand trial or adversely affected by mental illness. The bill will provide an essential part of a coherent and comprehensive system for dealing with forensic patients in courts, jails, hospitals and the community comparing favourably with world's best and safest practices. I commend the bill to the House.

Mrs JUDY HOPWOOD (Hornsby) [12.02 p.m.]: I, too, make a brief contribution to the Mental Health Legislation Amendment (Forensic Provisions) Bill 2008, which is a bill for an Act to amend the Mental Health (Criminal Procedure) Act 1990 and the Mental Health Act 2007 with respect to the care, treatment, control and release of forensic patients and patients transferred from correctional centres, as well as the functions of the Mental Health Review Tribunal. The objects of the bill are to rename the Mental Health (Criminal Procedure) Act 1990 the Mental Health (Forensic Provisions) Act 1990; to confer on the Mental Health Review Tribunal instead of the Minister for Health the power to order the release of forensic patients from mental health facilities, the power to grant leave to such patients and the power to make orders as to the care, treatment and detention of such patients; to establish the forensic division of the tribunal to exercise those functions; to provide for appeals from decisions of the tribunal in exercising those functions; to clarify the responsibility for arrangements for care, treatment, security and release of patients transferred from correctional centres to mental health facilities and forensic patients held in correctional centres; to set out conditions that may be imposed on an order for release and matters that must be considered by the tribunal in making decisions; to require the tribunal, when making decisions about all patients, to consider whether care arrangements that may be alternatives to involuntary care are consistent with safe and effective care; to make various amendments relating to community treatment orders; to provide for the recognition of victims of forensic patients and correctional patients; and to make other minor and consequential amendments.

I refer to the work of the Schizophrenia Fellowship, New South Wales, of which I am a proud board member, and congratulate the fellowship, under the leadership of President Frank Walker and chief executive officer Rob Ramjan, on extensive input into the review of this legislation. Various members of the Schizophrenia Fellowship put in many hours of work and certainly they are to be commended for their work. One of the most critical issues—and a welcome change in the powers of the tribunal—was moving the decision relating to forensic patients to the tribunal, away from the Minister and the Executive Government. The bill has been reviewed extensively and is long overdue. The Coalition does not oppose it.

Dr ANDREW McDONALD (Macquarie Fields) [12.05 p.m.]: The Mental Health Legislation (Forensic Provisions) Amendment Bill 2008 adopts the overwhelming majority of recommendations of the James Review of New South Wales Forensic Mental Health Legislation, which included extensive consultation. The bill will strengthen the role of victims of crime in the decision-making process. The bill provides for the replacement of the existing system requiring executive discretion for the care, detention, treatment, leave and release of forensic patients. The bill provides also that the release and conditions thereof for those found not guilty because of mental illness and found unfit to plead should be determined by a forensic division of the Mental Health Review Tribunal and not by the Governor acting on the advice of the Minister for Health.

The James review advanced the following reasons for this change: first, neither patients nor victims currently are able to directly address the decision maker; and, second, the current system is cumbersome, lengthy, overly bureaucratic, resource intensive, operates without transparency or accountability, and is liable to an administrative challenge. For these reasons the current system can be counterproductive to appropriate treatment of patients. Furthermore, the current system is out of accord with other systems for the care and treatment of forensic patients in Australia and elsewhere. These changes will bring New South Wales into line with most States in Australia.

The bill's model provides the following features. A specially constituted division of the Mental Health Review Tribunal holding public hearings, presided over by a judge or former judge, and including members with appropriate qualifications and the making of decisions to release patients, conditionally and unconditionally, can occur only in accordance with a formal framework requiring the tribunal to be satisfied of three things: first, that the safety of the public and patient will not be seriously endangered; second, that effective care and treatment is reasonably available; and, third, the use of specialist opinion independent of the treating team. A further feature of the bill is that tribunal decisions may be appealed by the Minister for Health on all grounds and the Attorney General on points of law. Victims of crime groups support the recommendations of the James report.

The bill provides also a legislative base for the tribunal's victims register and the right for victims to be notified of certain key events and decisions. There are also clarifications of the responsibility for the care, treatment, security and release of patients transferred from correctional centres to mental health facilities, and who are now designated as correctional patients. A number of consequential amendments flow from these provisions. Minor miscellaneous amendments also are made to the Mental Health Act 2007 with regard to three things: first, clarification of tribunal membership; second, procedural steps for issuing community treatment orders; and, third, improving information flows to and from the tribunal. This bill is an important step forward and brings New South Wales into line with most Australian jurisdictions. I commend the bill to the House.

Mr BARRY COLLIER (Miranda—Parliamentary Secretary) [12.10 p.m.]: I am pleased to support the Mental Health Legislation (Forensic Provisions) Amendment Bill 2008. The objects of the bill include, conferring on the Mental Health Review Tribunal, instead of the Minister for Health, the power to order the release of forensic patients from mental health facilities, the power to grant leave to such patients and the power to make orders as to the care, treatment and detention of such patients; providing for appeals from decisions of the tribunal in exercising those functions; the establishment of the forensic division of the tribunal to exercise those functions; and clarifying the responsibility for arrangements for care, treatment, security and release of patients transferred from correctional centres to mental health facilities—called correctional patients—and forensic patients held in correctional centres. The bill follows the report of former Supreme Court judge the Hon. Greg James, QC, President of the Mental Health Review Tribunal. The report, submitted in August 2007, made a number of recommendations, the vast majority of which were accepted by the New South Wales Government. The implementation of those recommendations is proposed by the introduction and passing of the bill now before the House.

I would like to mention the main recommendations of the report made by the Hon. Greg James, QC, and implemented by the bill. Firstly, the bill replaces the present system of executive decision making in respect of leave and release of forensic patients with a legislative framework providing for those decisions to be made by a special forensic panel of the tribunal. It is important to recognise what is meant by the term "forensic patient". Generally, it covers persons who have been found not guilty by reason of mental illness of committing a crime, as well as people who are found to be unfit to stand trial. Under current law the term also covers correctional inmates subject to a term of imprisonment who have been transferred for mental health care. The executive discretion mentioned is a concept that is out of date and has been abandoned by most Australian jurisdictions and equivalent jurisdictions around the world. In his review Mr James, QC, identified a range of problems with the reliance on executive discretion. In particular, the discretion operates without transparency and without accountability. The system also presents difficulties for patients, families, carers and victims who need a formal, transparent process in which to express their views and their concerns.

The question arises: How will this bill recognise and protect victims? The bill protects victims of crime and recognises their role in the forensic decision-making process in a number of ways. Firstly, it amends section 160 of the Mental Health Act 2007 to allow the tribunal to establish a victims register, to notify victims of tribunal decisions relating to forensic patients and correctional patients, and to notify victims when the forensic patient ceases to be a forensic patient. Secondly, clause 76 of the bill allows a victim of a patient to apply to the tribunal for a non-association order or a place restriction order in respect of a forensic patient. The non-association order can be used to prevent a forensic patient from associating with the victim, or a member of the victim's family, while a place restriction order can be used to prevent a forensic patient from frequenting or visiting a victim's home or workplace.

It is a very real concern for victims, particularly of violent crimes, that the perpetrator of the crime who suffers from a mental illness will return to the scene of the crime and harass, intimidate or in some other way cause fear of the infliction of some other personal violence upon the victims, their family members, relatives or associates. So the bill is a very important step in enhancing the rights of victims under the criminal justice system. Thirdly, and finally, clause 77A of the bill allows a victim to appeal a decision of the tribunal relating to a non-association or place restriction by application to the Supreme Court. The bill takes important and positive steps in the treatment of forensic patients, and I commend the bill to the House.

Mr GREG PIPER (Lake Macquarie) [12.15 p.m.]: I support the Mental Health Legislation (Forensic Provisions) Bill 2008. The objects of the bill are to amend the Mental Health (Criminal Procedure) Act 1990, the Mental Health Act 2007 and other legislation. I believe this legislation has good intentions and I certainly support its objectives. I will be brief, but I speak with the advantage of personal experience in that before becoming involved in politics and as mayor of the city of Lake Macquarie I worked as a nurse at Morisset Hospital for 24 years, over a period of 28 years. Some 14 of those years were spent working in mental health. I have firsthand experience of working for a period in probably one of the most notorious wards in this State, ward 21 for the criminally insane at Morisset Hospital.

I spent a lot of time working in what was known then as ward 19, which was a refractory ward. There, I and other staff members dealt over the years with some very notorious patients who were responsible for some of the worst crimes that the State had seen to that time. The patients themselves, whilst they had victims, were also victims—victims of their own mental health problems, as well as victims of a system, which at that time just did not understand mental health. It was then very much an evolving issue—not just as a mental health issue, but how the community should respond to those matters.

I do not intend to speak about all the provisions of the bill, but it is clearly appropriate that the most qualified and experienced persons consider and make decisions about the care and treatment of forensic patients and, when deemed appropriate, release those patients. The bill sets out to do that and at the same time to balance the needs of the community, particularly those who are the victims of any crimes committed by the mentally ill. The safeguards are appropriate and sensible, and I believe they are in large part, at least at face value, very workable. I commend the Hon. Greg James, QC, for his report. I ask the Minister to take on board my concern for the need for a form of qualitative review of decisions emanating from the tribunal and the process as implemented. I assure all members that there will be failures in the system. Issues confronting the mentally ill, the victims and the system are very complex, and it is inconceivable that this legislation could catch all circumstances that might arise. However, it will effect a vast improvement in the system, and I once again commend the Minister and the Government for taking this step, and I thank those involved with it.

Mr PAUL LYNCH (Liverpool—Minister for Local Government, Minister for Aboriginal Affairs, and Minister Assisting the Minister for Health (Mental Health)) [12.19 p.m.], in reply: I thank all members who have participated in this debate—the members for Epping, Smithfield, Albury, Wollongong, Hornsby, Macquarie Fields, Miranda and Lake Macquarie. I note, as a preliminary matter, the presence in the back of the Chamber of Greg James, QC, President of the Mental Health Review Tribunal. I thank him for his very significant contribution to this piece of legislation. One would not have thought a number of years ago that the member for Hornsby and I would both thank and congratulate Frank Walker on the work he does with the Schizophrenia Fellowship. I also thank Bob Ramjan.

It is worth pausing for a moment to explain what is happening with this legislation. People in this State have sought and demanded the introduction of this scheme for the best part of three or four decades. Some criticism has been voiced about the length of time it has taken for it to be introduced. I am delighted it has been. I would have liked it introduced earlier, but the political reality is that neither side of this House was prepared to take the step until now. That is not a partisan point. It is refreshing to see broad unanimity in this Chamber that this is a good move. That says something positive about the way people with mental illness are viewed and the way that this institution sometimes operates. There is a very positive message in all of that.

I will deal with some of the specific points which were raised in the debate and which merit a response. The member for Epping raised appeals and so on. To be fair, he was probably not given as much warning of this debate as he might have liked. If it is an appeal by an individual or the Minister for Health relating to release, it will go to the Court of Appeal. Other matters simply go to a single judge of the Supreme Court. A case will go to the Court of Appeal if the Attorney General appeals on a matter of law. That is more appropriate than referring it to a single judge of the Supreme Court because there is an appeal from the tribunal, which has a single judge. It makes more sense as a matter of principle and law for such a case to go to the Court of Appeal, and that is broadly consistent with the way the legal system operates.

The member for Epping and the member for Albury mentioned people suffering from an intellectual disability and the member for Albury raised the issue of children and this being a missed opportunity. The Government adopted recommendations 7 and 17 of Greg James' report; that is, that the matters be referred to the Law Reform Commission. The commission is conducting an ongoing inquiry about those issues, and that is a proper and sensible way to deal with it. Greg James is a Law Reform Commissioner, so we can rest assured that those matters will be properly ventilated in that process. I am not saying that it is not an issue, but that is the appropriate way to deal with it.

Members suggested that an exposure bill could have been produced accompanied by a document setting out the reasons for the adoption of particular provisions. The answer is simple: we have the James report, which is the result of an extraordinarily lengthy consultation process. That is not a bad thing; it is good that time was taken to consult properly. The Government has adopted almost all of the recommendations in the report, and the report itself justifies the bill. It also explains why the Government has adopted the provisions in the bill. In that context, further documents were unnecessary and it was appropriate to introduce the legislation rather than prolong the process. That is why we have proceeded in this manner.

The member for Epping hypothetically put some of the arguments against this course of action and raised public concern and suspicion about manipulation. This bill does not change that. If anything, the process will be more rigorous rather than less rigorous, because the arguments can be put to a tribunal and the decision makers rather than a recommendation being made to a Minister and no-one having access to the Minister to put their arguments. The member for Epping also thought that some might say that the legislation is being watered down. In legislative terms it is tougher because risk assessments and judicial determinations will now be required before release. I believe the legislation is in fact tougher rather than softer. It is certainly far more transparent, which is a benefit for everyone.

The member for Epping also said he was concerned because he thought that the Director of Public Prosecutions might not be able to proceed with charges. This legislation does not prevent that. It does not prevent the Director of Public Prosecutions launching prosecutions. The Attorney General and the Minister can certainly make submissions to the Mental Health Review Tribunal when coming to a determination and the concerns of the Director of Public Prosecutions can be taken into account in that process. That putative criticism is misplaced.

The other point the member for Epping raised as a possible objection is that the legislation waters down ministerial responsibility. The same argument would apply when the Attorney General cannot decide when someone who is convicted of a crime is released from jail. The more important principle here is the separation of powers. Having Ministers determine how long people are incarcerated would be a significant assault on the principle of separation of powers. Individual politicians should not make decisions about the detention of individuals regardless of whether they are locked up because they suffer from a mental illness or anything else. Properly qualified tribunals should make those decisions in an open and transparent way and both sides should be able to put their arguments. That principle is particularly important in this context.

I refer now to the contribution made by the member for Lake Macquarie. I have visited the Kestrel forensic unit at Morisset Hospital and have seen some of the people to whom he referred who are held at that facility. The point he made about qualitative assessment is very real. The forensic division of the Mental Health Review Tribunal will be performing at a different level from that at which the tribunal operates, partly because it will have more specialised officers and a judge will sit on the panel. They will make the final decision, so the responsibility will rest with them. The legislation also provides for appeals to the Supreme Court. I am happy to raise with the president of the tribunal other mechanisms to ensure that we have ongoing assessment of the tribunal's qualitative performance.

One of the interesting things in this debate has been the strong and broad support that has been offered by victims' groups. Carers and non-government organisations, including the Intellectual Disability Rights Service, the Schizophrenia Fellowship and the Mental Health Coordinating Council, have all indicated their support for the bill. I acknowledge that the Opposition does not oppose the bill. Indeed, the member for Epping in leading for the Opposition described it as good improvement, and I am delighted that he did so. I thank the officers in the Department of Health who have contributed to the preparation of this legislation. I particularly thank Greg James, who has had many nice things said about him today by a range of people. Of course, they are well and truly merited. This is a good and significant piece of legislation that implements a large proportion of the mental health reform agenda, and people have been requesting it for a long time. As I said, this bill gives the State twenty-first century laws, not eighteenth century laws, to deal with forensic patients. I am delighted to commend the bill to the House.

Question—That this bill be now agreed to in principle—put and resolved in the affirmative.

Motion agreed to.

Bill agreed to in principle.

Passing of the Bill

Bill declared passed and transmitted to the Legislative Council with a message seeking its concurrence in the bill.

DANGEROUS GOODS (ROAD AND RAIL TRANSPORT) BILL 2008

Agreement in Principle

Debate resumed from 26 June 2008.

Mr DARYL MAGUIRE (Wagga Wagga) [12.28 p.m.]: The shadow Minister for Road Safety will be making a contribution to this debate. I am making a brief contribution in my capacity as the member for Wagga Wagga and not as the Opposition spokesperson. The Opposition will not oppose this bill. The purpose of the bill is to regulate the transport of dangerous goods by road and rail as part of the national scheme and to enable regulations to be made to establish the scheme. The bill repeals and replaces the Road and Rail Transport (Dangerous Goods) Act 1997. It also sets out the purpose of the legislation, which is to regulate the transport of dangerous goods by road and rail, to promote public safety, and to protect property and the environment. It provides that the proposed Act will not apply to dangerous goods that are or form part of personal safety equipment of persons in a vehicle transporting dangerous goods or in a container that is part of the fuel or battery system of the vehicle's engine. The Radiation Control Act 1990, and any other laws relating to the storage and handling of dangerous goods but not relating to the transport of dangerous goods by road and rail, will prevail over the proposed Act.

The Opposition always consults whenever a bill is put forward in this place, and rightly so. We become concerned when bills are rushed through this place without our being given the opportunity to consult with community groups and stakeholders, because their opinions are important. Quite often legislation has gone through that has denied them an opportunity. However, this is not the case with this bill. We have had time to consult: our shadow Minister consulted with the Australian Trucking Association, with other shadow Ministers with environmental portfolios, and with others with interests relevant to the bill. As I said, it has to do with the environment, which is important to us.

Apparently the industry cannot comply with the laws unless each and every driver and operator has a copy of the Australian Code of Transport of Dangerous Goods. Apparently the only way of gaining a copy is to purchase it from a company in Canberra at a cost of $140 for the hardcopy version and $124 on CD-ROM. The code should be made available either free of charge or online. The industry requires a single national system for the regulation, registration and licensing of heavy vehicles, and the responsibility for policy development and monitoring should at this stage remain with the National Transport Commission, reporting to the Australian Transport Council. Dangerous goods are better transported by rail than by road, and we need to get goods onto rail wherever that is viable.

One hears a common theme throughout industry about the transportation of goods. Importantly, the road industry has to comply with so many regulations across Australia. As I did in the last debate on legislation affecting the heavy vehicle industry, I urge Ministers to take up the Council of Australian Governments proposals that will make it easier for the transport industry to comply. This type of legislation, weight limits, and logbook requirements are difficult for the trucking industry to comply with in different jurisdictions, where there are different licensing requirements and different logbook requirements. In New South Wales there is always a problem with the provision of infrastructure that services the industry.

As I said at the start, we will not oppose this bill, but in the age of technology it is important that these licences are made available on the Internet. Everyone understands the importance that we place on technology and the impact technology is having driving business. Governments, banks and other institutions more and more are encouraging the public to access Internet sites for information. This is the case with freedom of information documents from government departments. In most cases this can be done at no cost. It is unreasonable for the Government to be finding another way to raise revenue from a hard done by industry which already pays taxes and charges, which escalate without anyone in the industry having any control or input into them.

The Government needs to go further. It needs to make those documents available online, in keeping with its policy. Parliament has committees on technology. A committee meets regularly on broadband. Everyone talks about access. How about giving the industry access to important documentation that will enable its members to comply rather than stinging them $120 or $140 every time they have to do this. I think that is a fair and reasonable request, as I am sure the industry would agree. As I said, the shadow Minister will make a contribution to debate on this bill. I hope others are supportive of these initiatives.

Mr ROBERT COOMBS (Swansea) [12.35 p.m.]: I thank members for the opportunity to address the House on the Dangerous Goods (Road and Rail Transport) Bill 2008. This is an important issue. To judge how an economy is going one needs only to look at the amount of goods and produce being transported around the country, both interstate and intrastate. All the evidence to date is that transport is on the up, produce is on the up, and therefore it is important that we have up-to-date legislation in place that deals with the carriage of dangerous goods. The bill provides an important upgrade to current legislation to ensure that New South Wales continues to participate alongside other States and Territories in a nationally uniform system for the transport of dangerous goods. The bill will ensure that those substances that can present a serious risk to persons, to property and to the environment are handled and transported in a manner which minimises that risk. The bill will also provide greater efficiencies and benefits to the transport industry.

The Australian Transport Council has approved a package of reforms in the form of an Act and regulations to apply across Australia updating existing laws regulating the transport of dangerous goods. The council is the Commonwealth, State and Territory ministerial forum on the coordination and integration of transport and road policy issues. The council has agreed to the implementation of the updated package in States and Territories. Central to the whole package is the Australian Dangerous Goods Code. The code is based on United Nations model regulations for the transport of dangerous goods, being the principal source of policy for the safe transport of dangerous goods internationally. The package provides for the making of regulations to adopt the seventh edition of the Australian code. This most recent edition of the code is updated to bring it into line with current technical requirements in the United Nations model regulations. The UN model regulations are revised every two years, incorporating technical changes to improve safety based on worldwide experience.

Before the seventh edition the Australian code had fallen a number of cycles behind the UN on classification issues and other key technical matters. Updating the Australian code to match the current UN model regulations is necessary to ensure that classification, packaging, labelling and placarding requirements are compatible with international regulations and codes. The seventh edition of the Australian code has been restructured to adopt the format, structure and concepts of UN model regulations version 15, while retaining Australian specific content. This means that it will be easier in the future to modify the code in line with international changes. National adoption of the principles set out in the legislative package is necessary to provide a framework for implementation of the seventh edition of the Australian code.

The bill represents the first step in the process of adopting the package in New South Wales. The next step will be the making of the regulations. The regulations will set out who has the responsibility to do things in relation to the transport of dangerous goods and when those things must be done. The code then provides how those things must be done. The updated package will ensure compatibility with international transport regulations and codes, and improve domestic transport efficiency. It will benefit retail distributors and small business and continue to promote safety. It will also allow for a faster revision cycle for future code amendments. I commend the bill to the House.

Mr ANDREW FRASER (Coffs Harbour—Deputy Leader of The Nationals) [12.40 p.m.]: I lead for the Opposition on the Dangerous Goods (Road and Rail Transport) Bill 2008. In doing so, I acknowledge the contribution of the member for Swansea and the fact that this legislation is the first step in a national scheme. For too long the legislation regarding the heavy vehicle industry has varied between the States. I am interested to hear that the legislation is stage one of the process and that the regulations are stage two. I will return to that in a moment.

The bill replaces the 1997 Act. In the 11 years it has been in place the North Coast especially has experienced an extreme increase in the number of heavy vehicles travelling in the area. An estimated 30,000 heavy vehicles travel through Coffs Harbour every week. Last week I held meetings with a number of representatives from the heavy vehicle industry. As I said to them at the meeting, if 30,000 vehicles a week travel through Coffs Harbour and 1 per cent are driven by "turkeys" that represents 300 trucks.

Lately, due to my personal circumstances, I have been travelling up and down the freeway between Sydney and Coffs Harbour a fair bit. I like travelling with trucks: the vast majority of truck drivers are professional drivers. They know the rules of the road and they drive safely. However, I have sympathy for the heavy vehicle drivers travelling on the F3 between Sydney and Newcastle. I am sure the member for Swansea would agree with me. You get a driver in a Volvo, wearing a hat, with one of those nodding dogs in the rear window, travelling along the freeway in what I would term the fast lane, the outside lane of three lanes, at about 80 kilometres an hour in peak hour traffic. That causes immense frustration to all drivers, especially heavy vehicle drivers, who are professionals.

A couple of weeks ago I travelled from Sydney along the F3 on a Friday night when there was an accident at Somersby. It caused a bottleneck. Luckily, I detoured through Gosford. It cost me about three hours in time, but at least I did not get caught in the bottleneck. The freeway from north of the Gosford turn-off was just a car park. I did not hear the details of the accident that had occurred. The frustrations caused to drivers that night were enormous. In the areas where roadworks are being carried out and the speed limit is 80 kilometres an hour we were literally driving at about 25 kilometres an hour. At the time I thought the accident had occurred in that area, but that was not the case; I would suggest it was simply caused by bad driving by many people.

Dangerous goods are increasingly transported on that road. Given that many drivers do not seem to understand the road rules and the way they should be applied, and that police do not seem to apply the "keep left unless overtaking" rule, it is high time the Government had a blitz on the freeway. I have travelled up and down the F3 many times over the last 10 weeks or so and I have noted a lot of dangerous driving. For example, some drivers sit in the right-hand lane doing 85 or 95 kilometres an hour when other vehicles want to travel at the speed limit. The general speed limit on the F3 is 110 kilometres an hour, and many sections north of Newcastle now have a speed limit of 110 kilometres an hour. It is just dangerous driving to stay in the right-hand lane. It is high time the police pulled up those drivers and said to them, "Slow vehicles must keep to the left. You will now cop a $95 fine." If the police did that the message would soon get out.

I have travelled in Europe, where you see Ferraris go past you on the autobahns at 200 or 250 kilometres an hour. They do so with safety, because everyone keeps to the left. When a driver overtakes another vehicle, when they have gone past the vehicle they flash their lights when they pull back into the lane, so that if anyone is going faster than 200 kilometres an hour they can still get past. It is a safe system. I do not necessarily propose that we look at taking our speed limits to an unlimited level, as occurs on the autobahns across Europe. However, we should ensure that the dangers are taken away from the drivers of vehicles carrying dangerous goods, to ensure that any risk of an accident is minimised.

I referred to the 1 per cent of ratbags. My daughter recently returned to Coffs Harbour after spending a fair bit of time in Sydney for hospital treatment for burns. She had almost arrived in Coffs Harbour when a bloke—he was an absolute rabbit—with his torso out the window threatened the people in her car. They still do not know why he did so, because he was overtaking them! They are the types of people you tend to remember, the nutters on the road. They are the ones who cause accidents. They need to be heavily governed, whether it be under heavy vehicle driver regulations or dangerous goods legislation.

Increasingly, more volatile goods are travelling on country highways. Coffs Harbour is now a city of more than 65,000 people, Port Macquarie's population is now 62,000 to 63,000, and the populations at Ballina and in the Tweed are large. Country areas need fuel, energy components, and a vast array of dangerous goods. There is pretty well only one way to get them these days. The rail system does not have offloading facilities, especially in regional New South Wales, for dangerous goods, although we would all like to see more of them carried on the rail system. It also involves triple handling. The goods have to be transported to a rail head, transported by rail, taken off the rail head, and then transported to the relevant storage facilities. I compliment Boral in Coffs Harbour, for example, on establishing a rail head just south of Coffs Harbour railway station. The vast majority of the goods Boral handles that one would consider dangerous are handled at a rail head that is accessible. Manufacturers and big business give the excuse that if everything is transported by rail there will be flow-on costs to the consumer for that triple handling.

I note that the bill covers both road and rail, and that the stipulations for the handling of dangerous goods will be uniform for both modes of transport. Like the member for Wagga Wagga, I am extremely disappointed that the legislation basically says that every driver and operator must have a copy of the Australian code for the transportation of dangerous goods. It costs $140 to obtain a hard copy of the code or $120 for an electronic version. We all know how much it costs to print on paper, and we have more than enough of it on the table here today. To me those charges smack of revenue raising from the industry. All the relevant drivers will have to comply.

Lindsay Brothers Transport, for example, has about 400 drivers employed either directly or by contract. How many of those drivers carry dangerous goods or will be required to? Probably the vast majority of them. Multiplying 400 by $140 results in a huge sum. The majority of transport companies will pass that cost on to the drivers, requiring them to obtain their own copy. I ask the Government to reconsider the cost. Why is it charging $140 for a CD-ROM? Rural lands protection boards hand out CD-ROMs to ratepayers. It costs something like 50¢ to produce a CD-ROM. We can all do it on our own computers. Charging $140 for something that has a value of about 50¢ smacks of the Government reaping windfall gains.

I now turn to regulations. I will probably stray slightly off the legislation but I want to give some examples. The current heavy vehicle driver regulations due to start on 29 September are creating confusion within the community. Even the Roads and Traffic Authority cannot answer the drivers' questions. As of 29 September Queensland and New South Wales will be operating under regulations that are supposed to be uniform but are vastly different; be it the length of time drivers are allowed to drive before having a rest period or the kilometre radius around their home town or base. In Queensland it will be 200 kilometres and in New South Wales 100 kilometres.

Uniform schemes are vital on the eastern seaboard, but they must be uniform. You cannot have a 100-kilometre radius for a farm or business vehicle in New South Wales and 200 kilometres for one in Queensland. How will it affect the business owners, for example, in Texas, Goondiwindi or Mungindi if we get a harvest this year? It would be legal for a vehicle registered in Queensland to travel 200 kilometres north of the border but what if the work is in New South Wales? Are truck drivers with a Queensland licence going to be pinged in New South Wales because they are more than 200 kilometres from their base? Are truck drivers with a New South Wales licence going to be pinged in Queensland because they are more than 100 kilometres from their base when the New South Wales regulation says 100 kilometres only? It is quite bizarre.

The issue of where drivers are required to take their rest stops has also been raised with me by the trucking industry. Last Christmas there was a horrific incident at Eungai, south of Coffs Harbour, when a heavy vehicle driver was attempting to change a load. With the chain of responsibility as it is now most larger heavy vehicle firms send a driver from Brisbane and Sydney to meet somewhere on route. This keeps the staff happy. At Eungai there is a service station with a large truck stop out the back for drivers to change loads. The driver coming from Brisbane picks up the load going to Brisbane and returns home that night—about a five or six hour run—and the same for the Sydney driver. This means drivers get to sleep in their own beds. Most trucking companies are looking to do that, be it Lindsay Brothers Transport or Jim Pearson Transport from Port Macquarie, but they are often finding there are no parking spots. The only parking spots provided at Eungai are by private enterprise; a service station that sells meals et cetera.

When the truck driver entered the Eungai truck stop there was no place for him to park so he did a U-turn on the highway. It is a reasonably wide bit of road but not what I would call the safest section of road. As he pulled out he was hit by another truck and killed. If I remember correctly the truck driver's 11-year old son was injured but he was tragically present when his father was killed. Opposite the Eungai truck stop is land owned by the Roads and Traffic Authority. I appeal to the Government to ensure that there is provision for heavy vehicle drivers to change over safely. If they must have a compulsory rest period—I do not have the sheets in front of me that Lindsay Brothers Transport gave me—they should be able to rest in safety.

The Roads and Traffic Authority gave briefings to company owners, owner-drivers and drivers employed by companies. The RTA representatives were asked about the situation of drivers finding no parking available at Eungai and proceeding to Kempsey, which is probably another 20 minutes away. Would they be breaching their work diary—as it will now be known? The drivers could not get a sensible answer. It was basically suggested that they should pull onto the shoulder of the road. The Eungai area is basically at Clybucca, where that horrific bus accident happened in 1989. Inflexibly requiring someone to pull off onto the shoulder of the road when their hours are up and a truck stop is full is beyond me. I know the Minister in the other place has said that when the regulations come in there will be a moratorium on them, they will not be enforced 100 per cent and they will be discussed with the drivers, but the regulations should be changed in view of the concerns raised by the industry. New South Wales heavy vehicle industry regulations are a mess. The Government should talk to the heavy vehicle industry and ensure that the regulations are working. The Queensland and New South Wales regulations should have matching distance provisions.

The week before last when I was at an AgQuip field day at Gunnedah I dropped in to the Roads and Traffic Authority tent. The staff did not know who I was. A very helpful young lady gave me a helpful package of information but it probably was not descriptive or prescriptive enough for everyone. Whilst chatting to the young lady—who was still not aware who I was—I raised the instance of a driver travelling to a Lindsay Brothers Transport depot, or a depot at Coffs Harbour. The driver may have to stop at Halfway Creek—about 20 minutes north of Coffs Harbour—even though his destination is just down the road. The driver could then radio through to the base for a ute to be sent out. The driver of the ute could then drive the truck back to the depot. The truck driver, who would not legally be allowed to drive the heavy vehicle to the depot, could drive the ute. To me that is an anomaly. In fact the truck driver could go home, hook up a caravan and drive off to the South Coast, Victoria or wherever. There are holes in the regulations—forgive the pun—big enough to drive a truck through. Yet they are not being addressed.

The regulations state that if a driver is outside a truck resting for 15 minutes, even standing on the side of the road having a cigarette, that is fine, but it is not fine to be sitting in the cab of the truck waiting for it to be unloaded. That time cannot be regarded as a 15-minute break. When I mentioned this to the young lady at AgQuip she referred to the example of a furniture removalist. A furniture removalist can pull up at a house and load the truck. This could take the driver and his mate seven or eight hours. Anyone who has ever shifted a house full of furniture or given someone a hand to move would know that it is mighty hard work. The truck driver can then drive the truck for seven hours. They might have a 15-hour shift of working with heavy vehicles but because the regulation specifies "driving", a driver who is not sitting in the driver's seat of a truck waiting for it to be loaded, because he is loading it himself, is exempt under the regulations. It worries me that, as mooted here, the regulations might be as harebrained as the ones we have at the moment. I implore the Government not to put a moratorium on heavy vehicle driver regulations but to withdraw them until it has had an opportunity to work through them with the industry.

I have no problem with the chain of responsibility in large trucking companies. For example, big companies such as Lindsay Australia Limited have such advanced technology these days that if they want to know the destination and the number of trucks coming out of Melbourne, they can hit a button and the information comes up on the screen. They can isolate a registration number or a driver to find out how many hours that driver has worked, where he has been, and what were his stoppage times. In fact, they use global positioning systems to pinpoint a truck on the road to see what speed it is doing and know exactly where it is. Companies have that technology and they wish to comply but they do not want to get fined day in and day out for technical breaches of regulations that Roads and Traffic Authority inspectors do not understand. We saw that with the front underrun protection system [FUPS], which is still creating confusion. If a compliance tag is in the cab but not on the bullbar, depending on the Roads and Traffic Authority inspector, a driver might cop a $400 or $500 fine.

Trucking companies have told me about two occasions when they had to pay a fine. On the first occasion a load of sawn timber was on the back of a truck and a piece of timber was sticking out of the stack by 50 millimetres—or about two inches on the old scale. The truck was sidelined that day because technically it was illegal and I think the company was fined $400 for a loading breach, which is bizarre. However, if the driver had had a handsaw in his cab, he could have cut off the protruding piece of timber. Most probably there would not have been a breach, and he would have been on his way.

The second occasion involved Neville Beaumont, a potato grower in Dorrigo, and one of the most law-abiding fellows I have ever met. He is a lovely bloke—a hardworking potato grower, transporter and seller of potatoes to Woolworths and other places. He loads his potatoes in bags for Woolworths, Coles, or whomever. The bags are put onto pallets, the pallets are loaded onto trucks with flexible sides, and they go down Dorrigo Mountain, which is about 15 kilometres of fairly winding road that is bumpy in places. I commend Bellingen shire and the Roads and Traffic Authority because these days that road has a pretty good surface. It is no longer a bad road to drive on and it is wider and smoother. However, the road from Thora to Bellingen is a bumpy old track and by the time trucks get to the Pacific Highway their load has settled.

Anyone who buys potatoes from a shop knows full well that when they are put in a shopping bag they are fine but by the time they are taken home the bag has bulged a bit. The same thing applies to potatoes on a truck, so on this occasion 50 millimetres of potatoes protruded from the side of the truck. I find it bizarre that a company can be fined when a pantechnicon truck has a 50-millimetre bulge resulting from three or four potatoes. Truck drivers are regularly picked up and fined $400. However, the regulation totally ignores the fact that a truck's rear vision mirrors stick out about half a metre. The 50-millimetre bulge that is caused from the settling of a load of potatoes—potatoes destined for the plates of people in Sydney—results in truck drivers being penalised or fined. The chain of responsibility in trucking companies results in drivers, owners and everyone else copping a fine. They go to court, the lawyers get rich, sometimes the drivers get off, and sometimes they do not. These regulations are unworkable and have no flexibility.

Many members might remember a nurse from the western district who was killed in the early 1990s by a large bale falling off an overloaded trunk and crushing the car in which she was travelling. These regulations should capture things such as dangerous loading and not 50-millimetre bulges on either side of a truck, or 50-millimetre pieces of timber sticking out the back of a truck. I implore the Government to look at those regulations and at the regulations proposed in this legislation before they are implemented. It is fairly obvious to me—but those opposite might disagree—that because of the failure of the electricity legislation the Government needs cash. Charging $140 for a book or $120 for a 50¢ CD is exorbitant for an industry suffering from higher fuel prices and being belted by these regulations. The Government must ensure that the regulations reflect what industry can work with. It must also ensure that the regulations are not onerous or just a grab for money.

I commend the legislation and ask the Government to listen to what I have said because I am reflecting the views of industry. I talk regularly to people in the industry and they come to see me. For safety's sake, for the sake of common sense and for the sake of an industry that delivers goods to country people and food to city people, I ask the Government to work with industry to ensure that everyone gets their goods on time in the best manner possible without endangering workers in the industry or members of the public.

Mr PHILLIP COSTA (Wollondilly) [1.06 p.m.]: I thank Opposition members for their comments. People in my local area in the transport industry—and one such person is my neighbour—have also approached me. I thank members for an opportunity to address the House on the Dangerous Goods (Road and Rail Transport) Bill 2008. The seat of Wollondilly has major road and rail infrastructure passing right through it. The Hume Highway, and the Great Southern railway line which links Sydney to Melbourne, is arguably the busiest corridor in the country and there is a significant amount of movement in the region. We move products from Port Botany and Port Kembla, which is now developing into quite a large port, and there will be an even greater number of movements through my area.

Australia's domestic freight transport is projected to grow, in particular in my area, by about 1 per cent a year faster than economic growth—at around 3.6 per cent per annum. A 4 per cent increase in freight for inter-capital corridors, which would be through my community, will affect the volume of dangerous goods that are transported. The Australian Bureau of Transport and Regional Economics estimates that in the 12 years to 2015, tonnage moved on the national road network will increase by a staggering 80 per cent. That projection emphasises the need for streamlined regulation in the domestic supply chain and where it links into the global supply chain.

With the increasing integration of domestic road and rail transport operators, the single set of regulations addressing both road and rail transport for dangerous goods provided in the package will help to minimise intermodal inefficiencies. In my area there are significant moves towards inland ports and intermodal types of operations, and we will be experiencing an even greater number of movements, a proportion of those being dangerous goods. The introduction of dangerous goods transport laws that are consistent and compatible with other Australian jurisdictions and international transport regulations is good for business, good for my community, good for the community of New South Wales and particularly good for industry. As mentioned earlier, we must ensure not just the safety of the wider community but also the safety of those persons who drive and move freight between capitals. I am pleased to support this bill because it will lead towards a safer and consistent set of regulations between States. I commend the bill to the House.

Ms VERITY FIRTH (Balmain—Minister for Climate Change and the Environment, Minister for Women, Minister for Science and Medical Research, and Minister Assisting the Minister for Health (Cancer)) [1.09 p.m.], in reply: The Dangerous Goods (Road and Rail Transport) Bill 2008 represents the Government's continued commitment to protecting human safety and the environment in the context of the essential transport needs of our expanding economy. The national model legislation that forms the basis of the bill is the outcome of successful and cooperative consultation between Australian governments through the Australian Transport Council together with input and widespread support from the transport industry. The scheme given effect by this bill provides uniformity and consistency in dangerous goods transport regulation within New South Wales and for operators transporting goods across Australia and overseas. This consistent approach provides greater certainty for operators about their obligations, especially those intermodal operators who currently deal with separate road and rail regulations and with air and sea transport requirements that are inconsistent with these current requirements.

In response to comments about the availability of the Australian code, and in particular in response to the comments of the member for Coffs Harbour about the cost of providing a copy of the code to individual drivers, I am advised that the Australian Transport Council has now committed to putting the Australian Dangerous Goods Code on the Internet where it will be able to be downloaded free of charge. I also advise that dangerous goods licences will soon be available through the Government Licensing Scheme, which is Internet based. This will allow companies and individuals to apply for and update their licences through online transactions.

The legislation will service New South Wales well in a growing and dynamic business environment. In short, the bill is good for business. At the same time the updated international and national standards to be adopted in this legislation will enhance safety for people and the environment in relation to the transport of dangerous goods. The extension of the powers of authorised officers under environment protection and occupational health and safety legislation to the dangerous goods field is a great enhancement for compliance and enforcement. I commend the bill to the House.

Question—That this bill be now agreed to in principle—put and resolved in the affirmative.

Motion agreed to.

Bill agreed to in principle.

Passing of the Bill

Bill declared passed and transmitted to the Legislative Council with a message seeking its concurrence in the bill.

RETIREMENT VILLAGES AMENDMENT BILL 2008

Agreement in Principle

Debate resumed from 26 June 2008.

Mr ANDREW CONSTANCE (Bega) [1.11 p.m.]: An estimated 700 retirement villages in New South Wales accommodate some 40,000 residents, which is about 3 per cent of the State's aged population. There is no register of retirement villages, so at best these figures are a guess. The Government hopes to get a clearer picture of how many villages exist and where they are located through provisions in the Retirement Villages Amendment Bill 2008 by requiring that land used as a retirement village be registered with the Department of Lands.

The Retirement Villages Act was passed by Parliament in 1999. Prior to 1999 retirement villages were mainly regulated through an industry code of practice. The 1999 Act was the most significant reform since retirement villages began in the 1950s. The 1999 Act was amended in 2004, firstly, to tighten the circumstances in which a statement of approved expenditure for a retirement village could be amended to authorise more expenditure; secondly, to make it clear that charges for personal services would cease if a resident moved out or passed away; and, thirdly, to clarify the right of residents and their heirs to assign residence contracts to other people. Finally, it brought forward a statutory review of the Act. Although Parliament brought the review forward to 2004 the Government has taken until 2008 to get its act together.

These delays have been frustrating for residents who began their campaign for changes in 2003 when Ms Reba Meagher was Minister. A bit like snakes and ladders, the statutory review was due in 2005 but, because the need for reform was viewed as urgent, the Parliament brought forward the review to 2004. We did not realise at the time that it would take four Ministers for Fair Trading up to four years to review and finalise the legislation. It has taken so long that the review virtually had to be done twice. After telling the community dozens of times that the bill would pass by the end of 2006 the then Minister for Fair Trading, Ms Diane Beamer, failed to do so. Instead, she presented a draft bill in the dying days of the Parliament, which lapsed with the 2007 State election.

Last year the shadow Minister, the Hon. Catherine Cusack, referred to it as Gilligan's Island legislation because every episode promised dramatic progress but the bill never made it off the island. Finally, questions were put on notice obliging the Minister to promise Parliament that she would introduce the bill before the end of the spring session and, on the last possible sitting day, the legislation was tabled. The bill obviously is the result of extensive consultation and thousands of hours of hard work and submissions by residents. Unfortunately, Fair Trading has not published any submissions. Unlike the Parliament or the Australian Competition and Consumer Commission, the New South Wales Government keeps its submissions secret, so we cannot know for sure who said what and whose advice was listened to.

Over the winter recess the Opposition spent time talking to various stakeholders and residents about their reaction to the bill, and it will continue doing so until the spring session of the Parliament, which commences on 23 September. We reserve our right to amend this legislation in the other place if we see fit to do so at the end of the winter recess. We do not want to stall or delay the legislation further, given the long history associated with the Government's ongoing reviews and dillydallying over this issue. I will touch on the main provisions in the legislation and highlight a number of contentious matters that might result in the Opposition further amending the legislation once Parliament resumes in the spring session.

There is a requirement for operators of retirement villages to hold annual management meetings and to provide certain information at those meetings. No doubt this is designed to facilitate better communication. Residents have a right to ask questions before and during meetings and operators have a responsibility to give detailed replies. The bill caps the number of years a person can serve in the same office on a residents committee. The new cap will be three years. That is obviously designed to encourage residents to become active on the committee and to share the responsibilities. The bill also changes meeting procedure. The number of proxies a person can hold will be reduced from five to two. The Minister claims that this will increase resident participation.

The legislation seeks to make provision for capital maintenance and replacement in respect of property within retirement villages. These are, without doubt, the most significant and controversial changes. The treatment of capital maintenance and replacement in homes and in common areas has been one of the biggest causes of disputes in retirement villages. The current system has not worked and it has been open to rorting by unscrupulous operators who maintained capital items beyond their useful life in order to cost-shift onto residents.

Under the new arrangements all capital works, including maintenance, replacement or improvements, will be treated the same way. Residents and the operator will share the costs with a 50 per cent cap on what residents can pay. I echo concerns that have been expressed on this side of the House relating to these provisions. We reserve our right to amend this bill in the other place once we have completed the consultation in which we will continue to engage throughout the winter recess. Today we are here to debate the privatisation of electricity but we know that members in the upper House sought to adjourn that debate until 23 September.

The legislation is before this House today because of the Government's proposal to privatise the electricity distribution industry. The shadow Minister will continue to consult on the bill, particularly regarding this aspect of it. The bill seeks to specify the circumstances in which the operator of a retirement village may vary the current charges that are payable under a village contract without the consent of the residents of the village. The Minister told Parliament:

Under schedule 1, item (66), an operator will no longer have to seek consent of residents to increase recurrent charges at or below what the Minister calls the "rate of inflation". We have checked carefully how the "rate of inflation" is defined in the bill. It is described in the bill as the consumer price index (all groups) for Sydney. We are concerned about this definition because the consumer price index is a basket of goods including petrol, alcohol and grocery prices, and the rapid increase in those prices might not properly reflect the true movement of prices in maintaining retirement villages. We will monitor the operation of this section to ensure it is fair for residents.

Also, the bill seeks to specify the circumstances in which the residents of retirement villages may elect not to have an annual budget prepared and elect not to have the annual accounts of the village audited or to receive copies of the quarterly accounts. The Minister says this is a measure to cut red tape for operators of smaller community-based retirement villages, most often found in rural areas, with expenses of less than $50,000. The Act reduces some of the reporting requirements to residents so that money saved can be reinvested in more useful services for residents. I do not think anyone would dispute the potential benefits of cutting red tape.

Further, the bill seeks to require the operator of a retirement village to make good any deficit in the accounts of the retirement village and to provide that the operator is not permitted to carry forward any such deficit, or to seek a special levy from the residents of the retirement village to make good any such deficit except as provided by regulations. The bill also seeks to require the operator of a retirement village to ensure that the retirement village is generally safe and that emergency and home care services have vehicular access to residential premises within the village. As shadow Minister for Ageing, I want to ensure that the elderly citizens of New South Wales are provided with the services that they require, particularly home care services. Therefore the Opposition recognises the importance of this provision of the bill.

Furthermore, the bill seeks to provide for the keeping of records relating to land that is used as a retirement village. It requires operators to register the land as being used for retirement village purposes with the Department of Lands. At this stage the Government does not have a complete picture of the number of retirement villages in New South Wales, and therefore this provision is an important means of doing so. As shadow Minister for Ageing, I constantly express concern that New South Wales does not have a demographic plan for ageing. It is incredible that in 2008 the Government has not developed any form of comprehensive plan for the ageing in our community. One need look only at significant changes in demographic patterns to appreciate the importance of such a plan. Given current demographic changes, literally hundreds more villages will be planned and built throughout this State. Without doubt, this will be one of the biggest growth sectors in the New South Wales property industry as even more people move into retirement accommodation. Therefore it is important that the Government have accurate statistics on the number of people living in retirement villages and where those villages are.

I want to touch on a further provision of the bill that is of importance to residents, that is, the proposal to limit the period during which a former occupant is required to pay recurrent charges after permanently vacating premises within a retirement village. Currently the maximum period for continuing these charges is six months, irrespective of whether a resident has died or moved away. This provision reduces the period to six weeks, and aims to encourage operators to speed up the process of finding a replacement resident. Still further, the bill seeks to provide for a settling-in period during which a resident may terminate a village contract. The settling-in period will be 90 days. If the person dies, moves to a nursing home or even just leaves because he or she is unhappy, the charges can be limited to "fair market rent" and a "reasonable" administration fee. I think it important to highlight that provision in this debate.

Additionally, the bill seeks to provide that an occupant of residential premises within a retirement village may add or remove fixtures, or make alterations to the premises, with the consent of the operator and that the operator must not unreasonably refuse to give such consent. The bill also seeks to create a process by which the right to receive a refund of an ongoing contribution paid under a village contract may be enforced. In the event of retirement villages becoming insolvent and a new owner being required, residents become unsecured creditors. The bill seeks to give residents priority over other registered interest holders in the event of a Supreme Court ordered sale of the premises.

The Opposition will not oppose the bill, but will continue to be engaged in the consultative process during this winter recess. Therefore we reserve our right to bring forward amendments in the Legislative Council. This has been a long, ongoing process and the Opposition does not want to delay it further. In closing, I repeat that I want the State Government to present a State plan for the ageing. We need a demographic plan on the ageing, and one that includes the provision of home care services and accommodation services. Retirement villages will provide even further opportunities and options for the accommodation of our ageing community, and it is therefore important that the Government provides a regulatory system that not only enhances the lives of residents but also protects their interests and weeds unscrupulous operators out of the industry so that they cannot take advantage of the elderly. This sector will grow enormously. There are good retirement village operators but, unfortunately, there are a number of unscrupulous operators and we want them weeded out of the system. The Opposition will not oppose the bill in this place, but will reserve the right to amend it in the Legislative Council.

Ms CLOVER MOORE (Sydney) [1.26 p.m.]: The Retirement Villages Amendment Bill will make a number of changes to the management and operation of retirement villages in this State. I will not oppose the bill. However, residents of the Goodwin retirement village in Woollahra have raised with me some concerns about the potential impacts that this bill could have on retirement village residents. I have written to the Minister about these, seeking a response prior to debate, but with the resumption of Parliament unexpectedly bringing on this bill for debate I raise those concerns in the House today and seek a response from the Minister in reply to the debate.

Currently, residents cover maintenance costs and operators cover capital replacement costs, but under the bill costs for all capital works could be shared between residents and operators, with residents' contributions capped at 50 per cent. Goodwin retirement village residents say that this proposal will significantly increase their costs, and they have provided a financial analysis to confirm their view. They are also concerned that operators may take advantage of the system and increase capital expenditure to increase property value, but at the expense of residents. I share their concern that the Government must consider the impact that this provision would have on them, and I ask the Minister to provide assurances that residents' costs will not significantly increase.

My constituents tell me that residents of retirement villages on church-owned lands, such as Goodwin Village, are not consistently referred to in the bill. They say that this makes the bill confusing and that it is difficult for them to work out which provisions apply to them. They believe the bill should apply uniformly to all retirement village residents. I ask the Minister to clarify whether all bill provisions apply to the residents of villages on church-owned property. Goodwin Village residents tell me that the three-year limit on people filling resident community volunteer positions proposed in the bill would make it very difficult to establish a committee, particularly in smaller villages where there are few people capable of or willing to take on this additional responsibility. Constituents who live in Goodwin Village, which has 170 units, say that it has been difficult to find eight office bearers willing to take on the responsibility.

I share their concern that resident committees are vital to the transparent operations of retirement villages and legislation should enable committees to operate effectively if current committee members are the only candidates willing to take on the responsibility. The three-year limit on volunteer positions must not prevent the establishment of resident committees if it is difficult to get volunteers. I ask the Minister to address that issue in her reply. My constituents say that the proposal to require operators to meet end of financial year deficits is an unfair burden. They say that the proposed safeguards in the bill allow residents to scrutinise annual budgets and, if residents are aware of deficits, operators should be allowed to roll them over to the next financial year or charge residents a special levy. They are concerned that this provision would encourage operators to cut back on needed services to avoid incurring an end of year deficit. I have asked that this provision be reviewed to ensure that residents are not inadvertently disadvantaged.

My constituents are pleased with the proposed provision that would require annual management meetings at which operators must respond to reasonable questions. They believe that this would address many problems they have had with the Goodwin Village operators, who refuse to provide the committee with their insurance policy or itemised administration accounts. Goodwin Village residents seek clarification from the Minister that the proposed provision would require the operator to provide information to residents, including on expenditure. My constituents understand that proposed section 153 would require operators to cover the general service charges of a unit when it became vacant. They support this measure because it would alleviate the financial burden on residents when units are left vacant. They point out that other village residents have no control over agreeing to new residents and ask the Minister to confirm their understanding of this provision.

Retirement villages are becoming an increasingly important housing choice for our ageing population and it is important for residents to have proper protection so that they can live without worry and enjoy their retirement. I thank Goodwin Village residents for working with my office to identify how this bill will impact on retirement village residents and ask the Minister to address their concerns.

Pursuant to sessional orders business interrupted and set down as an order of the day for a later hour.

[Assistant- Speaker (Mr Grant McBride) left the chair at 1.30 p.m. The House resumed at 2.15 p.m.]

The Speaker (The Hon. Richard Torbay) took the chair at 2.15 p.m.

DEATH OF RALPH JAMES (MICK) CLOUGH, A FORMER MEMBER OF THE LEGISLATIVE ASSEMBLY

The SPEAKER: It is with regret that I have to inform the House of the death, on 12 August 2008, of Ralph James Clough, a former member of the Legislative Assembly. On behalf of the House I extend to the family the deep sympathy of the Legislative Assembly in the loss sustained. This will be subject to a subsequent motion of sympathy. I ask members to rise as a mark of respect.

Members and officers of the House stood in their places as a mark of respect.

ASSENT TO BILLS

Assent to the following bills of the previous session reported: