Full Day Hansard Transcript (Legislative Council, 27 June 1997, Corrected Copy)

The President (The Hon. Max Frederick Willis) took the chair at 10.00 a.m.

The President offered the Prayers.

The President tabled, pursuant to section 78(1) of the Independent Commission Against Corruption Act 1988, the report entitled "Circumstances Surrounding the Offering of No Evidence by the NSW DPP on an All Grounds Appeal at Lismore District Court on 25 May 1995", dated June 1997, received out of session.

The President announced that pursuant to section 78(3) of the Act he had authorised that the report be made public.

The PRESIDENT: I report the receipt of a letter from the Deputy Auditor-General dated 25 June 1997 regarding the inquiry into the lease and development of the Sydney Showground site, requested in the resolution passed by the House on 19 June 1996. The Deputy Auditor-General has advised that a draft discussion report has been issued for commentary to relevant agencies. Owing to the number and complexity of matters raised for further consideration, the report cannot be tabled prior to the completion of the sittings of Parliament, but the report will be tabled out of session.

Motion by the Hon. M. R. Egan agreed to:

That, with the approval of the President and the Speaker, the Joint Select Committee upon Injecting Rooms have leave to travel overseas to make visits of inspection.

Message forwarded to the Legislative Assembly advising it of the resolution.

Bill introduced and read a first time.

Declaration of urgency agreed to.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [10.07 a.m.]: I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

Mr President

The Trustee Companies Further Amendment Bill 1997 amends the Trustee Companies Act 1964 to exempt charitable trusts from the operation of the Trustee Companies Amendment Bill 1997.

Members will recall that the Trustee Companies Amendment Bill changed the fee structure applying to long term trusts in order to ensure that trustee companies were able to recover the costs of administering these trusts, and to ensure a fair balance between fees charged to capital and income.

After the bill was passed by this House, concern was expressed as to the impact of the bill on charitable trusts. After receiving representations from Philanthropy Australia, the Government agreed to amend the bill to exempt charitable trusts from the bill.

I commend the bill to the House.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [10.08 a.m.]: The Opposition does not oppose the legislation, even though during debate on the original bill in the lower House concern was expressed about the impact of previous changes on charitable organisations. Interested groups indicated that they had not been consulted on the original bill, although I note that the Trustee Companies Association was involved in extensive consultation at that time. I do not know whether the Government has had the opportunity to consult with trustee companies about their attitude to this bill. I learned only last night that the bill would come before this
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House today, and I have not had time to talk to the trustee companies, although I consulted with them about the concerns that charitable organisations had at the time that the previous legislation was before the House.

The object of the legislation is to reintroduce an element of control over the fees payable to a trustee company in respect of the administration of a charitable trust. Many charitable trusts have assets of great value. One organisation that approached me was administering a family trust of the order of $25 million. The trustee companies assured me that they have had considerable negotiations with charities about fees; that the trustee companies regard charitable trusts as charities; that charitable trusts are valuable clients; that there would not have been an increase in fees that was not commensurate with the value of the work being undertaken by the trustee companies; and that the charitable trusts would not be adversely affected by the original legislation.

It was for that reason that I did not take the view at that time that the charities would be seriously adversely affected, although there would be an effect, in that fees would be negotiated and would reflect the work that was being done. There is competition among trustees for this type of work, and the mechanisms contained in the legislation would have allowed a change of trustee administrator if the fees charged were unreasonable. I was satisfied from discussions I had with all the trustees that no trustee would want publicity about losing the work of a charity and, therefore, there would not be adverse fee increases. I note that the Government has decided that the fees charged to charitable trusts should be controlled, and the coalition will not oppose that decision.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [10.12 a.m.], in reply: I thank the Leader of the Opposition for his acquiescence to the bill. He has explained his attitude to the failure to differentiate charitable trusts when the bill passed through this House. I am generally in the same position. The Government did not have notice about the concerns of Philanthropy Australia prior to the introduction of the bill. However, it responded to those concerns as soon as it became aware of them. Exemption of charitable trusts from the amendment processes generally was, in a sense, a difficult policy choice, but, on balance, the Government came to the view that they should be exempted. That is reflected in the bill. I commend the bill to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [10.14 a.m.]: I move:

That this bill be now read a second time.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [10.14 a.m.]: The Opposition supports the legislation. It is clear that the Government intends to prorogue Parliament. If that occurs, this legislation will be necessary.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [10.15 a.m.], in reply: I assure the House that the Government has no intention of proroguing Parliament. This type of legislation is always introduced as a precaution.

Motion agreed to.

Bill read a second time and passed through remaining stages.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [10.17 a.m.]: I move:

That this bill be now read a second time.

This interesting and important bill deals with the leasing of land. Generally leases of land in the course of purchase, and land purchased from the Crown under Crown lands and irrigation legislation, cannot be transferred or otherwise dealt with without the Minister’s consent. The bill contains a number of amendments, and in particular an amendment that would delete the requirement for the Minister to take into account a spouse’s land when determining whether a proposed transfer of land would result in
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a person holding land substantially in excess of a home maintenance area.

The bill will amend the Crown Lands Continued Tenures Act 1989, the Hay Irrigation Act 1902 and the Wentworth Irrigation Act 1890 - ancient legislation that would be well known to honourable members, who, I am sure, have been assiduously studying the history of Crown lands and irrigation legislation. The topic holds a fascination for me, as I believe it does for the Hon. D. F. Moppett. I admire his knowledge of such esoteric matters and look forward to hearing his learned, considered and sensible contribution to the second reading debate.

The Hon. J. H. Jobling: Succinct.

The Hon. J. W. SHAW: I am not sure that I would use the word succinct. I suppose that hope springs eternal in the human breast. I seek leave to have the residue of my second reading speech incorporated in Hansard.

Leave granted.

The bill before the House will amend the Crown Lands (Continued Tenures) Act 1989, the Hay Irrigation Act 1902 and the Wentworth Irrigation Act 1890.

The bill has three objectives.

Firstly, this bill will provide a mechanism for removing restrictions on freehold land in irrigation areas.

Secondly, the bill will remove the statutory prohibition on corporations and trustees holding agricultural land in irrigation areas.

Thirdly, the bill will remove the statutory requirement that the land holdings of a spouse must be taken into account when determining whether to grant Minister’s consent to transfer.

The bill is another step in the Government’s program of reform and deregulation.

The amendments are supported by rural industry groups and will mean opportunities for rural investment and development will no longer be stifled in the irrigation areas by outmoded restrictions.

In particular the Government, through this bill, has sought to redress the inconsistencies that exist between rural landholders in irrigation areas and the holders of other rural lands elsewhere in the state.

These inconsistencies are in relation to their rights to apply to the Minister to remove the requirements for ministerial consent to transfer, which at present apply to their land.

The right to remove restrictions on transfer, which in respect of land outside irrigation areas has existed for over 25 years, has been denied to the holders of similar land situated in the irrigation areas of the state.

This bill will sweep away this anomaly, in that it will place holders of land in irrigation areas in the same position as holders of land in the eastern and central division of the State, with respect to their entitlement to remove restrictions on the transfer of their land.

To understand the nature of the reforms introduced by the bill, it is necessary to have a brief understanding of the present scheme which governs land dealings in irrigation areas.

Generally, all dealings in land within irrigation areas, with the exception of some derestricted freehold urban land and land that is situated in the Curlwaa and Hay areas, are subject to the provisions of the Crown Lands (Continued Tenures) Act 1989.

In respect of land in the Curlwaa and Hay areas, such land is vested in the lands administration ministerial corporation.

All dealings affecting land in the Curlwaa and Hay areas are governed by the Wentworth Irrigation Act 1890 and the Hay Irrigation Act 1902, which are virtually, in respect of the controls on the transfer of the land, mirror versions of the Crown Lands (Continued Tenures) Act.

All farming land in irrigation areas is subject to restrictions on dealings in that the land cannot be transferred, leased, subleased, assigned or otherwise dealt with without obtaining the Minister’s consent, or in respect of land in the Curlwaa and Hay areas, the consent of the lands administration ministerial corporation.

This restriction applies not only to leasehold land or land in the course of purchase from the crown or ministerial corporation, but also to freehold land.

In this speech, for ease of explanation, I will refer to both the Minister and the lands administration ministerial corporation as the Minister.

The current legislation requires that an application must be made to the Minister to obtain consent to a dealing with the land and the minister has a discretion to either grant or refuse consent.

Land which is subject to such restrictions is known as restricted title land.

However, the Minister may not grant consent to a dealing if in the Minister’s opinion the dealing will result in a person holding an area of land which is substantially in excess of a home maintenance area.

The home maintenance area principle was introduced in 1909 for the purpose of preventing undue aggregation of land and to maintain the concept of the "family farm" in the settlement of the rural production lands of the State.

Apart from being an important principle in the release of Crown lands during the land settlement era in the State’s history, it was the fundamental principle that determined farm sizes in the closer settlement and war service land settlement schemes between 1905 and the 1960's.

A home maintenance area is defined as -

"An area which, when used for the purpose for which it is reasonably fitted, would be sufficient for the maintenance in average seasons and circumstances of an average family."

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The principle applies both within and outside irrigation areas.

In irrigation areas the home maintenance area standard that has been applied for many years is 100 hectares for horticultural farms and 600 hectares for mixed farms.

At present a husband and wife cannot separately hold title to land within an irrigation area, or elsewhere in the eastern and central division, if the total area to be held would substantially exceed the home maintenance area standard.

A similar situation applies outside irrigation areas. The home maintenance area criteria for land outside irrigation areas is not fixed as a set policy standard, but is determined across the eastern and central division on a case-by-case assessment basis.

The assessment depends on the suitability and productive capacity of the land and the financial viability of the relevant rural industry, assessed in relation to the home maintenance area definition.

In 1971 legislation was enacted to allow for the derestriction of restricted title freehold land outside irrigation areas, whereby the holder of such land could pay a derestriction fee to the state, whereupon the freehold title would be derestricted.

At present that fee is prescribed as 3 per cent of land value.

This reform was introduced in recognition of the fact that the traditional objective of closer settlement had largely been accomplished and that the economic circumstances of the 1970s called for a legislative scheme which did not hinder appropriate farm buildup, in the interests of maintaining the viability of farm enterprises.

In introducing the legislation in 1971, the Minister at that time said irrigation areas were exempt from the de-restriction provisions, as the irrigation areas were under the control of another minister and he could not include them in the bill.

At that time, irrigation areas were administered by the former Water Conservation and Irrigation Commission, which was part of the former Department of Conservation, in the portfolio of that time of the Minister for Conservation.

There has been no evidence of any tendency for undue aggregation of lands outside irrigation areas in recent times.

This is in relation to the large area of unrestricted freehold land alienated prior to 1909, or the restricted title freehold lands on which the restrictions have been removed since 1971.

There has been an increasing tendency in land administration over the last 25 years to apply the home maintenance area principle in a very liberal manner and the withholding of consent to transfer is fairly rare.

It is also noted that 80% of the irrigated lands of the state are outside irrigation areas.

There has been no undue aggregation of these irrigated lands under the provisions which apply there and which are to be extended to cover irrigation areas when the bill is enacted.

The Crown Lands (Continued Tenures) Act contains specific provisions which prohibit corporations or trustees from holding farming land in irrigation areas, irrespective of whether that land is freehold, incomplete purchase or leasehold.

No statutory restrictions of this type apply elsewhere in the State, although as a matter of longstanding policy adopted by all governments since 1909, corporations or trustees are not permitted to hold restricted title freehold land, or land held under incomplete purchase or lease, if that land is farming land.

However, unlike the holders of freehold farming land in irrigation areas, the holders of freehold land outside such areas can derestrict their titles, in which case corporations and trustees may acquire these lands.

The purpose of this policy prohibition is to protect the home maintenance area principle.

If a corporation or trust were allowed to hold restricted title land, the restrictions on the aggregation of land could effectively be avoided by a dealing in the shares of the corporation, or by the appointment of beneficiaries by a trustee.

Neither of these dealings are subject to ministerial control.

The bill, by removing the statutory prohibition and providing for derestriction, will enable corporations to own land in irrigation areas.

A corporation may acquire such land if the land is, in the first instance, derestricted in accordance with the new amendments.

I turn now to the substantive provisions of the bill.

The bill provides, through its amendments to the Crown Lands (Continued Tenures) Act, the Hay Irrigation Act and the Wentworth Irrigation Act, that the holder of land in an irrigation area may apply to the Minister for the issue of a certificate that the land can be transferred or otherwise dealt with without the Minister’s consent; that is, the land may be derestricted.

The bill also removes the statutory requirement that the land holdings of a spouse must be taken into account when determining whether to grant Minister’s consent to transfer.

The fee for an application to derestrict the title to farming land will be an amount equivalent to 3 per cent of the land value, which is the fee that applies elsewhere.

However, if that land does not exceed two hectares or if the land is declared to be non-farming land and is suitable for residential, commercial, industrial or business purposes, holders of such land will be able to continue to apply to the Minister to derestrict their land, subject to the payment of a nominal application fee.

This is the position under the present law and no derestriction fee, calculated as a percentage of land value, is payable in these cases.

The removal of the potentially discriminatory provisions, which prohibit a spouse from separately holding land, if the total area held by both spouses substantially exceeds a home maintenance area, will be of benefit to families.

In conclusion, this bill will give farmers greater flexibility to adapt to changes in both farming practice and market conditions and will enable families to hold land without out-dated restrictions.

I commend the bill to the house.

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The Hon. D. F. MOPPETT [10.20 a.m.]: The parameters of my contribution to the debate have been set by the Minister’s second reading speech and by the interjections of my colleagues, and I will be constrained by their advice. The Opposition enthusiastically supports this measure, which deals with some anachronistic concepts of land management. The Attorney General, and Minister for Industrial Relations spoke about the development of the core measures of the bill. In this country and in other countries during the colonial era those responsible for the development of land management policies held the concepts of a yeoman class and closer settlement dear to their hearts. Central to those policies was the concept of home maintenance areas. Therefore, restrictions were placed on certain titles, including leasehold titles and freehold titles in irrigation areas.

Ministerial consent was required for the transfer of such titles to support the concept of closer settlement. Corporations and trustees were prohibited from holding land in irrigation areas, even if it was freehold land. The Opposition welcomes the removal of these restrictions - restrictions that reflect public policy no longer upheld by any political party and that is rejected by the farming community and those who work the land. The Government contemplated the removal of ministerial restrictions in the Western Division in a bill that passed through the lower House but that was discharged prior to debate in this Chamber. I look forward to ministerial consent being removed from all New South Wales statutes that relate to land usage.

The Hon. ELISABETH KIRKBY [10.23 a.m.]: The Australian Democrats support the Crown Lands and Irrigation Legislation Amendment (Transfer Restrictions) Bill, which is supported by all rural industry groups. The reform has been introduced in recognition of the fact that the traditional objective of closer settlement has largely been accomplished and that the economic circumstances of the 1970s called for a legislative scheme that did not hinder appropriate farming build-up in the interests of maintaining the viability of farm enterprises. In 1971 the then Minister said that irrigation areas were exempt from the derestriction provisions as they were under the control of another Minister and he could not include them in the bill. At that time irrigation areas were administered by the former Water Conservation and Irrigation Commission, which was part of the Department of Conservation in the portfolio of the then Minister for Conservation.

There has been no recent evidence of a tendency for undue aggregation of land outside irrigation areas and, therefore, the restrictions have been removed since 1971. Over the past 25 years there has been an increasing tendency for land administrators to apply the home maintenance area principles in a liberal manner, and the withholding of consent to a transfer is quite rare. The bill will bring the matter up to date. We need measures in place for the end of this century and for the next century, not for what was done at the turn of the century and in the early 1970s.

As a result of this bill and the amendments to the Crown Lands (Continued Tenures) Act, the Hay Irrigation Act and the Wentworth Irrigation Act, a landholder in an irrigation area may apply to the Minister for the issue of a certificate that the land can be transferred or otherwise dealt with without the Minister’s consent and that the land may be derestricted. The bill will also remove the statutory requirement that the land-holdings of a spouse must be taken into account when the Minister determines consent to transfer. The legislation must be updated as it contains many old-fashioned provisions, which I am sure met the needs of the time that it was introduced. The bill is supported across the board; there is no quibble about it. I am happy to support the bill.

Reverend the Hon. F. J. NILE [10.26 a.m.]: Call to Australia supports the Crown Lands and Irrigation Legislation Amendment (Transfer Restrictions) Bill, which is a simple bill to amend various Acts to allow transfer restrictions to be removed from large areas of irrigation land in the same way as they may be removed from large areas of non-irrigation area land, and to extend the provisions for the removal of transfer restrictions from some small areas of irrigation land - two hectares or less - on the payment of a nominal fee, to all small areas of irrigation area land. The bill contains a number of minor amendments, and Call to Australia is pleased to support it.

Motion agreed to.

Bill read a second time and passed through remaining stages.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations [10.28 a.m.]: I move:

That this bill be now read a second time.

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I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

Mr President, the purpose of this Bill is to amend the Drug Trafficking (Civil Proceedings) Act to make serious crime and indeed a life of crime a very unattractive option.

Mr President, this Government is determined to make the old adage "crime doesn’t pay" a reality.

We are determined to ensure that organised criminals do not profit from their crimes.

One of the best methods of doing this is by attacking the assets accumulated from illegal activity.

It is well known that criminals use the profits from crime to purchase apparently legitimate assets.

The Drug Trafficking (Civil Proceedings) Act which was introduced in 1990, with the wholehearted support of the then Labor opposition, is designed to allow the State to seize those assets.

The Act facilitates the attack on crime in two ways; criminals lose the money and assets gained through criminal activity and the State uses those proceeds to fund the fight against crime as well as other programs which address the impacts of crime on the community.

The Act was introduced in accord with the recommendations of a range of inquiries and Royal Commissions held during the 1980s.

These included the Costigan and Stewart Royal Commissions which recommended that the way to attack organised crime was to target the money and assets acquired through criminal activity.

This legislation, when introduced in NSW was and still is ground breaking legislation in the Australian context although it followed the successful use of similar provisions in North America.

Mr President, in the six financial years since the introduction of this Act, a total of nearly 200 confiscation orders have been made by the Supreme Court and the number of orders being made grows each year.

Increasingly the Crime Commission is able, with the assistance of police, to successfully identify and pursue persons involved in the drug trade and property derived from illegal activity.

Proceedings under the Act have targeted assets held by major crime figures including;

•key members of outlaw motorcycle gangs;

•organised crime syndicates in Sydney, the North Coast and other parts of New South Wales;

•large scale manufacturers and distributors of amphetamines, and;

•persons connected with one of the largest cannabis importation rings in Australia.

In the 1995/1996 financial year a total of 81 applications for confiscation made by the Commission were finalised either by way of Court hearing or negotiated settlement.

Orders were made that assets having an estimated value of approximately 3.6 million dollars be forfeited to the Crown.

As well as cash, assets seized included houses, boats, planes, motorcycles and racehorses.

In addition, Proceeds Assessment Orders were made requiring that a total of 4.8 million dollars be paid to the Crown.

Although not all of these funds will be recoverable it is expected that a total of approximately 5 million dollars will be recovered from orders made under this Act in 1995/96.

A further 22 million dollars in cash and property has been restrained awaiting the outcome of confiscation proceedings, including one estate estimated to be worth over 3 million dollars.

Mr President, as I have indicated, the growth in the number of cases pursued by the Crime Commission is exponential.

I anticipate that more and more matters will be pursued. The passage of this Bill will facilitate and contribute to that growth in many significant ways.

Mr President, it is the view of the Government that this legislation, which enables the assets acquired through criminal activity and the proceeds of crime to be recovered, will become an increasingly important tool in the fight against crime.

The Crime Commission will continue to pursue serious criminals and the links it has forged and continues to develop with other agencies such as the Police Service, the NCA and the Australian Federal Police will contribute not only to the apprehension of criminals but the stripping of their assets.

Mr President, the message to the drug pushers, the corrupt, the money launderers and other bag carriers for organised crime should be clear.

We will get you.

When we do we will set about depriving you of all you have gained from a life of crime, whether it be your house, your money, your car or any other property.

If you have supported yourself through a life of crime - we will impoverish you.

We are determined to ensure that in New South Wales crime will not pay.

Mr President, before turning to the substantive provisions of the Bill it is appropriate that I briefly outline the current operation of key provisions of the Act.

At present the Crime Commission or the Police Integrity Commission may apply to the Supreme Court for a Restraining Order where there is a reasonable suspicion that a person has engaged in drug related activity.

Essentially this is defined as participation in serious drug offences.

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If the Court makes a Restraining Order an application may then be made for a Forfeiture Order in relation to the restrained assets.

At present, if the Court is satisfied that the person has engaged in drug related activity it is required to make a Forfeiture Order in relation to the restrained assets unless it is shown that those assets were not acquired through illegal activity.

The Court may also, on the application of the Commission, make a Proceeds Assessment Order.

This is an order which requires that a person pay to the Treasurer an amount assessed as the proceeds derived by the person from drug related activity.

The Court may make such an order if it is satisfied that the person has engaged in and derived proceeds from drug related activity in the previous six years.

Mr President, I will now turn to the substantive provisions of the Bill and their effect on the operation of the Act.

The single most important change this Bill makes to the Act is to extend its operation to additional areas of criminal activity.

As I have outlined, at present the confiscation provisions of the Act can be brought into play where the Court is satisfied, on the balance of probabilities, that a person has been involved in drug related activity.

Drug related activity is defined by reference to specific drug offences involving the indictable quantity of drugs.

In addition, the confiscation provisions may currently be used in relation to a list of other offence types such as bribery, fraud and money laundering where these offences are connected with serious drug offences.

These offence types are listed in section 6(2)(d) of the Act.

Mr President, this Bill will enable the confiscation provisions of the Act to be used in relation to this group of offence types without requiring a connection with a drug offence.

However, the Act will only apply where the criminal activity of these types would constitute an offence which would carry a maximum penalty of five years imprisonment or more.

This will mean that persons who have engaged in serious criminal activity such as money laundering, bribery, corruption and a range of other types of offence will be liable to have the proceeds of their criminal lifestyle forfeited.

This will be the case even if they have not been involved directly in the drug trade.

Mr President, persons involved in serious or organised crime frequently engage in a range of types of offending.

It is not always possible to demonstrate to the Court the requisite link to drug activity.

This change will enable the provisions of this Act to be used where other, serious offending behaviour can be demonstrated.

There is one particular aspect of this change that I want to highlight.

The Police Integrity Commission when it was established by this Parliament last year was given the capacity to use the provisions of this Act in the same manner as the Crime Commission.

The addition of these types of offences to the Act will enable both the Police Integrity Commission and the Crime Commission to pursue persons who have engaged in serious criminal activity involving bribery, corruption and other serious offences.

The ill-gotten gains made by these persons will become liable to forfeiture.

Mr President, to reflect the broader application of the provisions of the Act the Bill will change the name of the Act to the Criminal Assets Recovery Act.

Another very important change made to the original Act by this Bill will be to enable action to be taken to recover property located interstate.

At present the Commission does not have a mandate to take action to recover property located beyond NSW.

Matters have been identified where persons who have committed serious drug related crimes in New South Wales were able to avoid the operation of the Act by holding hundreds of thousands of dollars worth of assets in another state.

This amendment will enable the Commission to seek to restrain and seize property wherever it is located.

It is of little value to have provisions such as the ones in this Act if criminals know that they can avoid the consequences of their crimes by locating assets interstate.

We will ensure that such tactics will not work.

Mr President, one of the key mechanisms available in this Act is the ability of the Court to make a Proceeds Assessment Order.

The Bill will change the basis on which a Court makes a Proceeds Assessment Order to make it more consistent with the process used with an Asset Forfeiture Order.

That is, where the Court has determined that a person has been engaged in serious criminal activity it will then be able to assess the proceeds that he or she has derived from illegal activity.

The Act already sets out a number of mechanisms the Court can use to ascertain the proceeds a person has derived.

To these will be added an expenditure test.

The reason for this is that experience has shown that major criminals often live a lavish and expensive lifestyle whilst their legitimate income is very low - often just unemployment benefits.

The expenditure test will allow the Court to take into account a person’s expenditure over the preceding six years.

That portion of it which cannot be demonstrated to be derived from lawful sources will be deemed to be proceeds of illegal activity.

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Mr President, the Bill will clarify the provisions relating to assessing the proceeds received by a person who purchases drugs from an undercover investigator in a "controlled buy".

A "controlled buy" is a monitored drug transaction engaged in by an undercover operative in order to penetrate or gather intelligence on a organised crime group.

A person selling drugs as part of such an operation will be held accountable for the full amount of moneys received regardless of claims that some or all of it was passed on to another party.

Mr President, the Act currently enables the Court to release from restrained property funds for reasonable legal expenses.

These may be used to defend an application for a forfeiture order under the Act or to defend related criminal charges.

There has been considerable litigation since the introduction of the Act as to what constitutes "reasonable legal expenses".

Of concern is the fact that where property has been restrained and is likely to be forfeited a person is less likely to exercise their usual caution about expenditure of funds on legal expenses.

There have been instances under similar legislation in other jurisdictions where more than a million dollars was expended from restrained property on legal expenses for a committal hearing.

This exhausted the restrained property and at the subsequent trial a plea of guilty was entered anyway.

Whilst it is important that a person has access to legal representation the Bill introduces to the Act some limitations on the release of restrained funds for legal expenses.

In part it does this by including some preconditions for the release of the restrained funds.

These include a requirement that unrestrained property is used for such expenses before restrained property is used and a requirement that a person provides a full statement of affairs before property is released.

In addition, a person will be required to take all reasonable steps to bring their property within the jurisdiction of the Court before restrained funds are released.

Mr President, these measures substantially reflect the common law position as it has developed in New South Wales.

In a recent decision of the Supreme Court, restrictions such as those proposed in this Bill were placed on the defendant’s access to funds.

Unable to dissipate the restrained property in drawn out litigation, the defendants quickly agreed to settle the confiscation proceedings.

Incorporating in the Act the preconditions included in the Bill makes them clear and accessible.

It must be remembered that when restrained property is released for legal expenses a person is gaining access to property which will otherwise probably become public property.

In this context these limitations are appropriate.

Mr President, further to these preconditions the Bill will also enable regulations to be made prescribing maximum allowable costs for legal services provided should that prove necessary.

Mr President, in addition to these more substantive changes a range of more minor matters are being addressed by the Bill.

The purpose of these is primarily to assist in overcoming ambiguities in the Act and operational difficulties associated with action taken under its provisions.

Amongst these more minor changes are amendments of an evidentiary nature including provisions which will enable the following:

•admission of analysts’ certificates with the same evidentiary status as they have in proceedings under the Drug Misuse and Trafficking Act:

•the admission into evidence in other proceedings under the Act of transcripts of an examination made under Section 12 of the Act:

•the admission into proceedings under the Act of a transcript from related criminal proceedings.

These changes will ensure that proceedings under the Act are conducted with greater efficiency and reduce the likelihood of the same evidence having to be given twice.

The Bill will also amend the offence provisions in the Act.

At present knowingly dealing with property subject to a restraining order is an offence.

The Bill will add to this attempting to deal with such property and dealing with property subject to a forfeiture order as well.

Mr President, the Bill will make minor amendments to refine provisions affecting the information gathering powers and procedures under the Act.

It will enable the Court to direct an owner of restrained property to provide a statement setting out details of the property and dealings with it.

The Bill will enable the Court to order the examination of the spouse or defacto spouse of a person whose property is subject to a restraining order.

Mr President, the Bill will alter the provisions which are to apply where the information gathering powers in the Act are used and legal professional privilege is claimed.

A claim of privilege will not be able to be used to prevent seizure of documents pursuant to a search warrant issued by the Supreme Court under Section 44 of the Act.

Similarly, legal professional privilege will not be a bar to a Production Order made by the Supreme Court under the Act or a requirement to answer a question or produce a document in an examination conducted pursuant to an order of the Court under the Act.

Whilst in all these situations the legal professional privilege will be limited there are balancing provisions that limit the use of information obtained in certain proceedings against the person who is entitled to claim the privilege.

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Mr President, in addition to these provisions of the Bill a few additional minor procedural amendments are included which will increase the effectiveness and efficiency of matters conducted under the Act.

Mr President, as I have already indicated the Government considers this to be important legislation in the ongoing fight against serious organised crime.

We are determined, as I have said, that in New South Wales crime will not pay.

The passage of this Bill will go a long way in ensuring that this message becomes a reality.

The Drug Trafficking (Civil Proceedings) Act has enabled the Supreme Court to deprive numerous serious drug offenders of the proceeds of their crimes and drug related activities.

By passing this Bill the Parliament will ensure that this good work can continue in an even more effective manner.

It will also ensure that other activities of organised criminals can be targeted as well.

Mr President, I commend the Bill to the House.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [10.28 a.m.]: The Opposition has received representations from a number of interest groups that have expressed concern about the breadth of the Drug Trafficking (Civil Proceedings) Amendment Bill. However, having taken into account representations that have been made, the coalition has determined that it should support this legislation and that it should be brought into effect as quickly as possible. Under the present law - a law introduced by the coalition - courts are able to order the confiscation of assets derived by criminals involved in drug-related activities and assets accumulated from income sourced by drug-related activities.

This legislation will extend the application of the confiscation laws. Assets identified as having been derived from offences not even associated with drug-related activities, such as bribery, fraud and money laundering, will be subject to confiscation. A number of other criminal activities, such as those associated with illegal gaming, will also attract the confiscation laws. Several years ago police raided an illegal gaming outlet and for the first time in the history of gaming raids were able to get hold of all the records of the prominent illegal gaming operator, and identified the totality of income derived by him over several years and where that income had been invested. However, none of that intelligence was able to be used because the State did not have confiscation of assets legislation.

Consequently, illegal gaming, SP bookmaking and the like have continued to flourish in New South Wales because legislation has not attacked the real purpose for people involved in illegal gaming: profit. This bill will provide a real impetus for police to pursue illegal gaming operators in this State. It is appropriate legislation and the coalition supports it. Offences that will trigger a criminal assets recovery program include fraud, obtaining financial benefit from the crime of another, money laundering, extortion, violence, bribery, corruption, harbouring criminals, blackmail, obtaining or offering secret commissions, perverting the course of justice, tax or revenue evasion, illegal gaming, forgery and homicide.

Proceedings under this type of legislation tend to play second fiddle to taxation recovery. The Federal tax man believes he is entitled to his cut first and that if anything is left, the State can pursue its recovery program. Consideration must be given at a later time to improving the interrelationship of activity between the two government agencies so that action can be triggered efficiently. When the effect of these changes is known, consideration should be given to more effective accounting mechanisms and perhaps a review that will place greater onus on the accused to prove that assets were obtained lawfully.

Consideration could perhaps be given at another time to whether recovery applications require separate legal proceedings. Perhaps a management mechanism might be considered to enable a court to determine whether a person acquitted, in a criminal case in which the Crown failed to prove guilt beyond reasonable doubt, had on the balance of probabilities engaged in the crime for purposes that would trigger the application of this legislation. Such a mechanism would reduce the proliferation of separate legal actions. The coalition will certainly give consideration to such a proposal. The coalition supports the legislation.

The Hon. ELISABETH KIRKBY [10.34 a.m.]: The Australian Democrats support the Drug Trafficking (Civil Proceedings) Amendment Bill. As the Leader of the Opposition said, representations were made to all crossbench members and Opposition members about this bill. In a letter dated 24 June the Law Society wrote to me seeking that the legislation be deferred until the next parliamentary session, and in that letter stated, "Your assistance in achieving this is sought." According to the letter, the Law Society does not feel there has been sufficient time for consultation. Obviously, the advisers to the Minister for Police were aware of this correspondence and provided the crossbenchers with a supplementary briefing note that addressed all the matters raised by the Law Society. I should like
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to place on record a couple of those concerns. The briefing note stated:

As the Society notes, the main purpose of the Bill is to extend the operation of the Act to additional forms of criminal activity. These are defined by broad offence categories with reference to a maximum penalty of imprisonment of five years or more. These broad offence categories are to enable the Court to determine whether a person has been engaged in serious criminal activity using the civil standard. A conviction is not required and, consequently, any reference to whether a person had been dealt with on indictment is irrelevant.

The Law Society was particularly concerned about that aspect. The note continued:

The purpose of the test in s.16A(1)(d) is to ensure that a person seeking access to restrained assets for legal expenses takes reasonable steps to ensure that their property is within the jurisdiction of the Court. It must be remembered that the funds a person is seeking are funds which will probably become public property. It is not reasonable for a defendant to expect access to property restrained by the Court when she or he may have substantial assets beyond the reach of the Court.

The steps that may be required to bring such assets within the jurisdiction of the Court may be very simple or may be complex depending on the nature of the property and its location. That is why [the bill] has a reasonableness test. It requires a person to take all reasonable steps to bring their interests in property within the jurisdiction of the court. Attempting to sell real property in an overseas jurisdiction prior to gaining access to restrained property may or may not be reasonable; that is a matter for the Court. Given the likely time delays it is probably unreasonable.

It would defeat the purposes of this Act if a person is able to dissipate on legal expenses restrained assets held in this jurisdiction whilst still holding substantial assets which are located beyond the reach of the Court. More and more criminals are seeking to defeat this type of legislation through money laundering. Simply locating property off-shore has been a well used and often effective method.

The Law Society noted proposed section 22 and stated that it was substantially based on the equivalent existing provisions of the Act. The only change is that which will result from proposed paragraph (d) of section 6(2). The Minister stated in the briefing note that his advice is that the provisions are not unconstitutional. The Minister stated:

If this advice is wrong an appropriate court will not hesitate to so rule.

That will be tested when the Act is applied. Section 38 of the Act enables a search warrant to be issued by an authorised judge, and this is consistent with provisions in other similar legislation. The Act specifically provides that a search warrant to search for property tracking documents - and this is covered by section 45 of the Act - may be issued only by the Supreme Court. Therefore, that would protect the interests of people who might be caught up in the net of this legislation and might be innocent. With those brief comments, the Australian Democrats support the bill.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [10.40 a.m.], in reply: I thank all honourable members for their support for the bill. As the Hon. Elisabeth Kirkby and the Leader of the Opposition said, it is true that the Law Society of New South Wales, in a letter written to honourable members and the Government, has expressed concern, and the Government takes those concerns seriously. My task is considerably alleviated by the fact that the Hon. Elisabeth Kirkby has expressed cogent answers to those concerns. Appropriate dialogue has gone on between the legal profession and the Government, in particular, the Minister for Police. The Hon. Elisabeth Kirkby has explained why those concerns are adequately met by the bill. I commend the bill to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [10.42 a.m.]: I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

I am pleased on behalf of the Government to introduce the Crimes Amendment (Assault of Police Officers) Bill 1997. The bill contains sensible and straightforward provisions to extend the extra protection from attack offered to police under the Crimes Act 1900.

The bill is predicated upon a belief that police officers are rightfully owed a measure of protection by the community. That is so for at least two reasons.

First, police officers place themselves in positions of risk on behalf of the community. Second, an attack on a law enforcement officer strikes at the core of our system of democratic government.

Those who seek to harm the persons responsible for the enforcement of laws passed by our Parliament should be subject to special punishment.

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That principle is already recognised in the Crimes Act. Section 58 of that Act imposes a higher maximum gaol penalty for the offence of common assault on a police officer than is imposed for the same offence against a civilian. Indeed, the relative maximum penalties are five years and two years respectively.

Surprisingly, and anomalously, the principle is not carried through by the Crimes Act to apply to more serious assaults that in fact inflict injury.

In some cases, while the principle I have described remains something that may be taken into account by judicial officers when considering sentence in individual cases, there is no legislative requirement that that be so.

It will be of assistance to honourable members if I refer at this point to the similarly named Crimes Amendment (Assaults on Officers) Bill 1997, which was introduced recently by the member for Eastwood in the other place. The Government does not support that bill because, with the greatest of respect to the honourable member, it misses the point that I have just made. That is, it seeks to further amend section 58, while completely ignoring the question of assaults that occasion injuries.

The Government now believes it is time to address the issue more comprehensively. In addition to a number of ugly recent episodes involving attacks on police, statistical evidence has been provided by the Bureau of Crime Statistics and Research that suggests that the frequency of assaults on police may be increasing.

In comparing the period April-December 1994 to the period April-December 1995, those figures show that the number of charges of assault on police, under section 58 of the Crimes Act, increased by 12.6%. The number of convictions for that offence also increased, by 13.6%.

The most recent statistics show that, over the period January 1995-December 1996, there has been an increase of 22.5% in the overall number of reported assaults. That figure would certainly suggest that the trend is continuing.

I am sure honourable members will agree that the time is ripe to demonstrate consistently by way of the Crimes Act that assaults on police officers will not be tolerated.

On that note, I turn to the major features of the bill.

The effect of the bill will be to insert a new section 60 in the Crimes Act that will cover a range of assaults on police officers. The existing section 58, which applies in relation to a range of persons, not just police officers, will continue to operate in relation to those persons. It will also continue to apply to offences involving resistance or obstruction of, as opposed to assaults on, police officers.

Section 60(1) will retain the existing maximum penalty of five years gaol for an assault on an officer that does not occasion actual bodily harm.

Section 60(2) will increase the existing maximum penalty of five years to seven years for an assault on an officer that does occasion actual bodily harm. This increase will rectify an anomaly that presently exists, whereby an assault on an officer that occasions actual bodily harm attracts no greater sanction than a common assault on such an officer. In both cases, under the system that is to be replaced, the existing maximum penalty is five years gaol.

Section 60(3) will increase, from seven to twelve years, the maximum penalty for any person who maliciously wounds or inflicts grievous bodily harm on a police officer.

In each case, the maximum monetary penalty is specified by section 440A of the Crimes Act to be a fine of $100,000.

It goes without saying that each of the new offences only applies where the offence relates to the lawful execution by the officer of his or her duty. That is only fair.

However, by section 60(4), the concept of the lawful execution of the officer’s duty will be extended in one very important way. That is, in some cases, an assault that occurs while an officer is off-duty will be deemed to have occurred while the officer is acting "in the lawful execution" of his or her duty.

The cases to which I refer are those where the assault is committed while the officer is off-duty as a consequence of, or in retaliation for, actions undertaken by the officer in the execution of the officer’s duty.

This is most important. Not only will it prevent revenge attacks, but it will also prevent offenders from attempting to circumvent the effect of the legislation by waiting till the officer is not in uniform.

I am sure members will agree that the amendments contained in the bill are both straightforward and constructive. It is the Government’s firm expectation that they will have an impact on the disturbing rate of assaults on those who are charged with our protection.

I commend the bill to the House.

The Hon. M. J. GALLACHER [10.43 a.m.]: It is with pleasure that I speak on the Crimes Amendment (Assault of Police Officers) Bill. I lead for the Opposition and I am more than happy to support this legislation because it is similar to a bill that was first introduced last year by the Opposition, through the shadow minister for police, the honourable member for Eastwood. I remind all honourable members, including Government members, that when the honourable member for Eastwood introduced his bill last year he was howled down by the Government and the bill was not allowed to proceed. Only recently the Government decided to change its position on this legislation. I believe that the Government, as a result of the continuing breakdown in dialogue between the Government, the New South Wales Police Service and the New South Wales Police Association, recognised that the legislation introduced last year was correct.

I congratulate the Government on finally recognising that this bill should be afforded the same priority as similar bills relating to the Police Service that have passed urgently through the Parliament. The legislation encapsulates other measures already in place in New South Wales under the Crimes Act dealing with acts of violence,
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namely, section 35 relating to malicious wounding or infliction of grievous bodily harm, section 59 relating to assault occasioning actual bodily harm, and section 61 relating to common assault. The legislation introduces a new section 60, which provides for the punishment of three categories of assault committed against police.

This bill includes, as did the model introduced by the honourable member for Eastwood, provisions similar to section 35, section 59 and section 61. It deals specifically with those who commit, against a police officer, malicious wounding, assault occasioning actual bodily harm, grievous bodily harm or common assault. The Opposition is disappointed with the time it has taken to gain the Government’s support and for the Government to finally recognise the difficult situation in which many police officers often find themselves, given the number of police who have been assaulted and the offenders who have got off leniently in the meantime. Had those offenders been convicted under this legislation, others may have been deterred.

Police in New South Wales and Australia are not punching bags for the drunken public. It is an unfortunate reality that most assaults inflicted on police are carried out by people who are affected by alcohol or drugs - predominantly by alcohol. I hope that with the passing of this bill the judiciary will consider this legislation and not deal leniently with offenders because they were affected by alcohol at the time of commission of the offence and therefore had a diminished responsibility. This legislation is designed to put pressure on the judiciary to ensure that reasonable sentences are given to those who assault members of the Police Service, who are entrusted with the responsibility of looking after everyone in the community.

Over many years I have been the victim of assaults and some of my workmates have been victims of serious assaults, and some of those assaults resulted in death. This bill is well and truly overdue. It is an indictment of all honourable members, this Government and successive governments that this measure was not introduced earlier. I am pleased that it will finally pass through the Parliament, will be given Royal assent, and will become law. A provision in the explanatory note which refers to off-duty police officers who are assaulted in the execution of their duty as officers clearly illustrates the hypocrisy of the Government.

In 1995 at Campbelltown an off-duty police officer, John Manton, was the victim of an assault. He identified himself as a police officer and was seriously injured. Several people witnessed the assault. Since that time he has been on light duties in the Police Service and is undergoing rehabilitation. It is interesting that the Police Service took the decision that John Manton was not on duty at the time of the assault and therefore was not entitled to workers compensation. That shows the hypocrisy in relation to the issue. John Manton identified himself as a police officer and was subsequently assaulted, yet the legislation provides that an off-duty police officer who is assaulted as a consequence of his position or identifying himself as a police officer, and returns to duty, will be covered by this legislation.

The Government is being hypocritical on the matter; it is having two bob each way. Many young police are concerned that their coverage under workers compensation legislation is uncertain. They are very concerned about being assaulted in the course of their work for fear that the legislation does not protect them. On behalf of the Opposition, I reiterate support for the legislation, which is well and truly overdue. I remind the Attorney General, who has had discussions with the Leader of the Opposition and me, that the Opposition will move amendments to the bill in Committee.

The Hon. ELISABETH KIRKBY [10.51 a.m.]: The Australian Democrats support the Crimes Amendment (Assault of Police Officers) Bill, although I must admit that when I first read the bill I was concerned about the new section 60(1) that it will insert in the Act. That new section reads:

A person who assaults a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned by the assault, is liable to penal servitude for 5 years.

That appeared to me a most severe penalty. The Hon. M. J. Gallacher may not like this remark, but many people, particularly in demonstrations, are arrested not only for obstructing police but for hindering them in the performance of their duties, for assaulting police or for resisting arrest, when they may have done no more than try to wriggle out of the grasp of the arresting officer. I am perfectly happy that there be a severe penalty for assaulting a member of the Police Service if bodily harm is occasioned, and that the penalty be very heavy if the bodily harm caused is very serious, just as it would be if a person seriously assaulted another person in the street.

I took this matter up with the Attorney General’s office, and learned to my amazement that there was nothing that the Attorney General could do about this because the penalty of five years penal servitude is a provision in the existing Crimes Act,
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and that provision has been in existence for many years. So the section 60 proposed to be inserted in the Act will not introduce a new or more severe penalty; it will only reiterate the present penalty. I still believe that it is a severe penalty to be committed to penal servitude for five years for an assault that has not caused actual bodily harm to a police officer. However, that is another matter, and not a matter I will be able to address today.

I am well aware of the background to this legislation. It is tied to the recent attack on the off-duty police officer Constable David Carty. Statistics released by the Bureau of Crime Statistics and Research highlight the problem of assaults on police officers. They show that from April-December 1994 to April-December 1995 there has been a 13.6 per cent increase in the number of convictions for assaults on police. Those statistics have to be taken seriously, and obviously that is the reason for this legislation being introduced. I do not think any reasonable person would dispute that police deserve special protection from assault because they place themselves in positions of risk on behalf of the community and because an attack on a law enforcement officer strikes at the core of our system of government.

At present, extra protection for police exists in respect of common assaults. The penalty for such an offence against a civilian is two years, whereas for common assault of a police officer it is five years. However, police have no extra protection under current laws if the attack has caused serious injury. As I said earlier, there is an anomaly in that there is no difference in the maximum penalty for an assault on a police officer whether or not the assault occasions actual bodily harm; in both instances the penalty is five years. That is why the Government sought to increase the penalty from five years to seven years for assaults occasioning actual bodily harm, and from seven years to 12 years for malicious wounding or malicious infliction of grievous bodily harm upon police officers. The bill must be supported.

I have only just been shown the amendments that are to be moved in Committee by the Opposition, and therefore have not had time to study them properly, but I find it rather odd that the same heavy penalty of five years penal servitude could be imposed for an offence of stalking, harassing, intimidating or threatening a police officer. I realise that the Government and the Opposition are pursuing political campaigns of getting tough on law and order; it cannot be denied that that is on the agenda of both the Government and the Opposition.

I do not know what position the Attorney General will take on that amendment, but quite frankly I could not support it because of its loose wording. What sort of intimidation does the Opposition suggest should attract a penalty of five years imprisonment? I am not suggesting that a person who gives a police officer a two-finger salute, or makes rude or abusive comment should not be penalised in some way, but five years imprisonment is a long time, particularly if the so-called intimidation or threat is by a young person. I will wait until I hear the Attorney General’s reply and deliberations in Committee before I make up my mind.

The Hon. Dr B. P. V. PEZZUTTI [10.58 a.m.]: I have listened to the debate very carefully. One justification for the bill could be that a more severe penalty is imposed by a court on a police officer who without justification assaults a member of the community than on any other person who commits an assault. A more severe penalty is imposed because police officers occupy a position of responsibility and trust. Has the Attorney General any evidence that police are dealt with more severely for that reason? If so, that could go a long way towards providing justification for the bill.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [11.00 a.m.], in reply: I thank honourable members for their support for the bill. In response to the Hon. Dr B. P. V. Pezzutti, it is generally the case that when a police officer goes before a court accused of a crime, the court takes account of that person’s office of trust and of obligation to the law and tends to treat that crime more seriously than one committed by somebody who had not taken an oath to observe and enforce the law.

The Hon. M. J. Gallacher supported the bill, and although his speech was littered with political points, one would expect that from a future leader of the Liberal Party in this House. He could not resist the temptation, and it is understandable that an aspiring politician would seek to score a few points here and there. The Hon. M. J. Gallacher made the point that governments of all political persuasions ought to have acted more quickly than they have on this measure. On reflection that is a point that could probably be made about most legislation that comes before the House. One could always ask, "Why didn’t somebody think of this earlier?" The fact is that all legislation has its time.

Some of the criticism of previous governments not enacting this legislation, and indeed of this
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Government not moving sooner, is met by the observation of the Hon. Elisabeth Kirkby. She said that for many years the Crimes Act has had a provision with respect to common assault on police, though not necessarily an assault that causes harm to the officer. Section 58 of the Crimes Act provides a maximum of five years gaol for assault on a police officer, whereas the maximum sentence for common assault on a civilian is only two years. So for many years the Parliament has signalled to the community that assaults on police officers are regarded as particularly serious. I commend the bill to the House.

Motion agreed to.

Bill read a second time.

Suspension of standing and sessional orders agreed to.

Bill introduced and read a first time.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [11.03 a.m.]: I move:

That this bill be now read a second time.

The coalition has been forced to introduce this legislation because of the failure of the Carr Government to undertake the essential water inquiry prior to commencing any corporatisation or privatisation of the Snowy hydro scheme. The New South Wales coalition is the strongest supporter of the corporatisation and privatisation of the Snowy scheme, but it will not tolerate legislation being passed in this Parliament when the full ramifications of that legislation are unknown.

The Opposition is fed up with this Government introducing legislation that is poorly prepared and which it expects the Opposition will support. The recent debacle over the Eastern Distributor legislation springs to mind. It is negligent of the Parliament to pass legislation in respect of which the full range of outcomes are unknown; and for the Treasurer to expect the Parliament to pass such legislation is to treat the Parliament with contempt. It should be stressed that in opposing the corporatisation legislation, the coalition had the full support of the environmental groups and the irrigators in the Murrumbidgee irrigation area.

The coalition’s only objection is to the water inquiry not being undertaken prior to the legislation being introduced into the Parliament. Neither in the debates nor in the answers to numerous questions to the Treasurer this week has the Government explained why the water inquiry has not been conducted previously. Work on the corporatisation of the Snowy scheme has been going on now for almost four years. This Government has had two years to undertake the necessary water inquiry. However, for reasons unbeknown to the Opposition, the vast number of concerned water users and the environmental groups, the Government has failed to undertake this inquiry. Perhaps the Treasurer may choose to explain the rationale for this failure.

In the previously mentioned corporatisation legislation the Carr Labor Government said, "Trust us." The Opposition, environmental groups and the irrigators do not trust this Government. The Opposition will not succumb to pressure from this Government, or from anywhere else, to pass legislation that allows the Treasurer to do deals behind closed doors in order to fulfil his own agenda. Over the last few days the Treasurer has cast some light on that agenda. The Opposition, along with the irrigators and environmental groups, suspects that the Treasurer is scared about the outcome of this inquiry. He is scared that its recommendations may detract from the market value of the Snowy scheme when and if he convinces his colleagues to allow him to sell this national icon.

The Opposition will not allow the Government or the Treasurer to do deals behind closed doors that can significantly affect the financial viability of the agricultural industries in the MIA or the environmental value of the Snowy, Murray and Murrumbidgee rivers systems. In addition, there were no assurances in the corporatisation legislation that the recommendations of the inquiry would be implemented, and no provision that its report would be made public or shown to the respective interest groups and parties.

The message from this debate is simple: we do not trust you. Interestingly, in a press release on Tuesday of this week the Treasurer announced that the Government would withdraw the corporatisation bill, that the corporatisation of the Snowy scheme was off, and that the Snowy River would not flow again. The press release was like the threat of a spoilt juvenile to take his bat and ball home; simply because the Government was not prepared to follow due process. The Treasurer knows full well that the Government must corporatise the Snowy scheme in order for it to be a participant in the national electricity market.

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It is absolute nonsense to say that the Opposition has scuttled the corporatisation process. The Snowy scheme will be corporatised, but only after the water inquiry has concluded. This Parliament will not be intimidated by the Treasurer’s antics, and the coalition can wait as long as it takes. The corporatisation of the Snowy scheme is of such significance to New South Wales and the nation that this Parliament must have the final say on the allocation of water from the Snowy.

Furthermore, this decision of the Parliament is of such significance that all available information relating to water flows must be publicly available so that there is informed debate in the community and in the Parliament on the allocation of this most valuable of all resources. That can only be done after an extensive public inquiry. Earlier this week the Treasurer withdrew his corporatisation legislation in an attempt to pressure the Opposition into backing down on its demand for a water inquiry prior to any corporatisation or privatisation. That measure has backfired. The ball is well and truly back in the Government’s court.

If the Carr Government fails to support this legislation it will be showing its true hand in relation to this debate. It will be saying, "We do not care about ensuring that the Snowy flows again. We do not care about the appropriate allocation of water to the Murrumbidgee Irrigation Area. We do not care about the increasing salinity problems in the Murray and Murrumbidgee systems. We care about only one thing, that is, the maximisation of the market value of the Snowy hydro-electric scheme at the expense of all other competing interests." That is not the approach taken by the Opposition. If the Treasurer fails to support this bill it will pose other questions about his motives. What discussions has he had with and what assurances has he given to prospective buyers of the Snowy scheme? What guarantees has he made in relation to water allocations to the hydro-electric scheme?

All that the Government has to do is undertake this water inquiry prior to any legislation being passed through the Parliament. The Opposition will ensure the passage of the Snowy corporatisation legislation when the water inquiry has concluded. The recommendations of that inquiry can then be considered in connection with the legislation. What is the Government scared of? All that it has to do is conduct this inquiry prior to the passage of the corporatisation legislation. This whole debate is about due process, or the lack of due process. Support for the water inquiry is the first logical step in the corporatisation of the Snowy.

Essentially, the Snowy Mountains Hydro-electric Scheme (Water Inquiry) Bill is part four of the Government’s Snowy Hydro Corporatisation Bill, which provided for the establishment of a water inquiry. There are some amendments to this part which provide for the tabling of the report and for the evidence to be heard in public. The Government, by supporting this legislation, has an opportunity to take the first appropriate step towards the inevitable corporatisation of the Snowy. If the Treasurer and Premier Bob Carr fail to support this legislation it will reveal their true motivations. I commend the bill to the House.

Debate adjourned on motion by the Hon. J. W. Shaw.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [11.13 a.m.]: I move:

That these bills be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

On 28 February 1973 the Parliament of New South Wales ordered the printing of a report of the New South Wales Law Reform Commission entitled ‘Report on the Right of Appeal from Administrative Tribunals and Officers’.

In the report the commission recommended that an ombudsman be appointed and that a public administration tribunal be constituted.

It has been a long time coming.

It is also salutary to reflect upon the principles which guided the commission to its recommendation.

In the opening to the report immediately following the terms of reference the commission stated its starting points as follows;

The growth of public administration is a characteristic of contemporary society.

The powers of public authorities to affect private rights have increased in recent decades and are increasing.

Problems of administrative justice cause concern in most parts of the world, including New South Wales.

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When objectives of government policy have been determined, those objectives must be attained without unreasonable delay and account must be taken of the needs of public authorities to run the day to day government of the State.

Any official action should have reasonable regard to the balance between the public interest which it promotes and the private interest which it disturbs, and be fair.

Any person adversely affected by an official action should be able to question the action simply, cheaply and quickly; and procedures should be available which are fair, impartial and wherever possible open.

I am sure that all honourable members will agree that those starting points, set back in 1973, are as relevant today as they were then.

The bill before the House today establishes the Administrative Decisions Tribunal and commences the process of conferring jurisdiction on the tribunal.

The tribunal will have two distinct areas of jurisdiction. The first is jurisdiction to review, on appeal, decisions made by public bodies or officials. The second is original decisions in which jurisdiction has been transferred to the ADT.

In conferring this jurisdiction a number of existing tribunals have been merged into the ADT and jurisdiction over some administrative decisions has been transferred from the courts. I will outline for honourable members the basis upon which tribunals are to be merged and jurisdiction to review administrative decisions is to be conferred.

Before outlining the jurisdiction and procedures of the tribunal I would also note that this legislation is the first in a staged implementation of establishing the tribunal. Over the next three sessions of Parliament the Attorney General will be bringing forward further bills to extend the jurisdiction of the tribunal.

Review of administrative decisions

The primary function of the ADT will be to review decisions of public administrators.

The ADT is integral to the Government’s commitment to ensuring open and accessible government for the people of New South Wales.

The Government’s commitment to administrative law reform stems from our belief in the need for open and accountable government.

The notion of good administration requires acceptance of the following matters:

public access to information on government;

lawfully made decisions;

reasons to be given for decisions;

available and accessible remedies and relief to correct wrong decisions; and

a decision and review process which adheres to the principles of natural justice.

New South Wales, through the Freedom of Information Act and the Ombudsman Act has already given effect to some of these principles.

The introduction of a right of review of the merits of administrative decision through an independent forum represents a further crucial aspect of good administration.

While at present judicial review of administrative decisions is available to determine the lawfulness of the conduct of the decision maker there is no clearly identifiable avenue for administrative appeals on the merits of decisions.

There is some limited merit review available in relation to certain specific decisions through specialist bodies but for the most part administrative decisions are only amenable to judicial review through the Supreme Court.

The limited scope and nature of judicial review makes the process uninviting to persons who are aggrieved with a decision which may affect them.

The cost and time delays associated with matters in the Supreme Court also tends to deter potential litigants.

Clearly there is a need to provide a mechanism for administrative appeals on the merits of a decision and for these appeals to be conducted in an open and accessible forum, guided by principles of natural justice.

The breadth of administrative decisions made in New South Wales is enormous and usually underestimated. It encompasses a wide range of discretions and decisions affecting all facets of business and personal rights.

Such decisions are made by Ministers, public officials or bodies, including semi-independent bodies and boards, specialist tribunals and courts.

As I have foreshadowed, over the next 18 months the Government will be reviewing all administrative decisions which are made or required to be made under State legislation to determine which decisions should be amenable to review.

The following categories provide a general indication of matters which may be within the jurisdiction of the ADT, subject to the matter arising from a statutory decision;

the granting or refusal to grant a licence, permit, registration, authority or approval for an activity or item.

suspension, termination, revocation or cancellation of a licence, permit or authority.

service of a notice directing or requiring the doing of an act or the ceasing to do of an act in order to comply with a legislative requirement.

determination of an entitlement or eligibility for a (financial or like) benefit or assistance.

satisfying of safety or other standards.

exclusion of persons from property, places or institutions.

determination of an entitlement to moneys.

remittance of penalties, interest, debts or fees.

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consenting to, or refusal of consent, and the imposition of conditions relating to lending, guarantees, or leasing.

the selection or appointment of receivers or administrators.

the acquisition, disposal or dealing with property.

certification or refusal to certify matters.

the protection of vulnerable persons these categories are indicative for the purpose of assisting in identifying decisions which may be amenable to inclusion in the jurisdiction of the ADT. This list is not exhaustive but neither is it prescriptive of matters to be included, which must be determined subject to general exclusions.

The procedures of the ADT

In reviewing administrative decisions the ADT will conduct proceedings with as little formality and technicality and with as much expedition as the requirements of the matter in question permit.

The range of the matters which may arise before the ADT, both in substance and degree of difficulty, requires that the tribunal have considerable flexibility in its composition and procedures.

The tribunal will have a discretion to adapt its procedures to the circumstances of the application before it.

It is important that the ADT be both accessible and flexible. The bill gives the tribunal a wide discretion to inform itself as it thinks fit and not be bound by the rules of evidence.

The tribunal has a range of options for resolving matters without the need for formal hearings. For example, through the use of preliminary conferences. Assessors, and, where appropriate, mediation.

I have taken account of the criticism which has been levelled against the commonwealth and victorian tribunals that despite legislative prescription for informality and flexibility the actual hearings have become formal and adversarial.

To overcome such problems the nsw ADT will have a rules committee which includes community and stakeholder representation to ensure that the procedures do not become stultified.

This is a unique proposal in the common law world and has the potential to be a significant model for future developments of tribunals so as to ensure that the tribunal meets the needs for which it is established.

The tribunal will operate in different divisions and it will be possible for the divisions to operate relatively autonomously, with different rules and procedures which are appropriate to the functions exercised by each division. Even within divisions, the rules and procedures may vary depending on the nature of the particular matter before the tribunal.

The issue of who will be eligible to apply for the review of an administrative decision will also be resolved flexibly, with standing provisions contained in the relevant enactments that confer jurisdiction on the ADT adapted to the nature of the subject matter.

Applicants will be entitled to be represented when appearing before the ADT. However the tribunal will be given a discretion to exclude representatives from making oral submissions at hearings, depending on such factors as the type of proceedings, the parties capacity to present their case without representation and the complexity of the matter.

Reviewable decisions

The procedures for dealing with the review of a reviewable decision are set out in chapter 5 of the bill. It involves a number of preliminary steps prior to a matter being put before the tribunal. The three most important of these are the creation of a statutory duty to give reasons for administrative decisions, the process of internal review, and the arrangement for cross referral of matters between the tribunal and the Ombudsman.

An essential element of good administration is the need to ensure that reasons are given for administrative decisions. The supply of reasons with decisions will give people dealing with government departments and agencies an assurance that decisions are made rationally, taking into account only the relevant considerations.

This will ensure that decisions can be seen to have been lawfully made and also reduce the likelihood of appeals on the merits of the decision.

The obligation to provide reasons for decisions reached in the exercise of public powers is essential to ensuring accountability. It is likely to cause a decision maker to consider carefully the grounds upon which a decision is made and ensure that proper process and policies are applied.

However, the most important result of requiring reasons to be given for decisions is that it allows an individual affected by a decision to understand the reasons for that decision and therefore arms the individual with the information necessary to seek review and remedies to ensure administrative justice.

The system of internal review will ensure that a government official or body which has made a decision is required to review such a decision when a person affected by the decision is dissatisfied with the outcome.

This will allow wrongly made decisions to be corrected simply and cheaply. The person conducting the review of the decision is intended to be independent of the original decision maker and will be able to consider further relevant material submitted by the applicant. The internal reviewer will be required to supply a statement of reasons for his or her decision.

Turning now to the provisions concerning the Ombudsman, I note that there is considerable potential overlap of jurisdiction between the ombudsman and the ADT in relation to the review jurisdiction of the ADT.

The bill provides that the Ombudsman and the ADT may enter into an administrative arrangement concerning the transfer of matters between the bodies.

In many respects the jurisdiction of the Ombudsman and the ADT is complementary. In its review jurisdiction the ADT will examine the merits of a particular decision, while the Ombudsman is more concerned with system issues arising from the decision making process. Clearly there is scope for a close working relationship between the offices.

A system that allows cross referral will ensure that a complaint is dealt with in the most appropriate manner and may thus avoid both multiple actions or matters "falling through the cracks".

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As part of the formal relationship between the Ombudsman and the ADT the bill provides that the ADT may provide an expert opinion to the Ombudsman in relation to any legal questions which might arise in the course of the Ombudsman carrying out the duties of office. In the future it is also intended to explore how the ADT and Ombudsman may co-operate in the investigation and mediation of complaints.

Government policy

Another important element of the review jurisdiction is that the bill specifically provides that the ADT is to give effect to government policy.

The experience in this area in the Commonwealth AAT demonstrates that there need not be any inherent conflict arising from an independent review body considering government policy.

It is accepted that the powers of the Commonwealth AAT extend not only to consideration of whether any government policy has been improperly applied but also to refusal to apply a policy in a particular case.

The Commonwealth AAT distinguishes between "core or political policies" and more general government policies and while it is required to make an independent assessment, it accepts the importance of consistency in administrative decision making, lending further weight to the application of an existing lawful policy.

The tribunal will need access to all relevant documentation in order to reach the correct or preferable decision about the matter before it. Evidence of government policies may be provided by ministerial certificate. However provision has been made for the protection of the confidentiality of Cabinet documents and other exempt documents under the Freedom of Information Act and for the application of those parts of the Evidence Act which relate to privilege.

Concurrent judicial review

One matter not included in this bill, but which will be introduced by future amendment will be to give the ADT concurrent jurisdiction with the common law forms of judicial review. The major benefits of this are;

it allows the tribunal in judicial review proceedings to focus on the substance of an applicant’s grievance free of technical issues as to the availability of common law remedies;

it provides for an array of flexible remedial powers; and

by prescribing the most important grounds of review in summary form and reasonably comprehensive language, it has educational and presentational advantages for administrators and citizens, as to the matters that would render an administrative decision contrary to the law.

A further additional benefit is that the jurisdiction of the tribunal can be guided by developments in common law.

The judiciary in Australia, and indeed throughout the common law world, has been active in recent years in expanding the scope of judicial review of administrative decisions and in setting principles of procedural fairness which govern the decision making process. It is essential to ensure that the jurisdiction of the ADT can be guided by such developments.

It will also permit an additional option to provide that for certain matters not considered suitable for merit review to nevertheless be reviewable in the ADT as a cheaper and quicker review mechanism than going to the Supreme Court.

Original jurisdiction of the ADT

The original jurisdiction of the ADT is established primarily through the merger of existing tribunals. The bills before the House today provide for the integration of 6 existing tribunals into the ADT. For example, the Community Services Appeals Tribunal exercises review jurisdiction and will form a specific separate division of the tribunal. The Legal Services Tribunal and the Equal Opportunity Tribunal exercise original jurisdiction.

I also note for the benefit of honourable members that consideration is being given to the integration of a further 21 tribunals into the ADT.

It is important that I place on record the reason why the Government believes that it is both necessary and appropriate to merge tribunals into the ADT.

The growth of tribunals has fragmented responsibility for determining legal rights, leading to a lack of consistency and in some case arbitrary decision making. It may also lead to poor resource allocation in relation to decision making.

The variations in tribunals as to functions, operation and constitution are enormous. The criticisms which are made of tribunals are therefore general and do not apply to all tribunals. However, it is appropriate for me to set out some of the Government’s concerns with the operation and proliferation of tribunals which justify the proposal to rationalise these bodies.

Of significant concern is the fact that tribunals often exist within government departments and agencies in circumstances where clear conflict of interests may arise. In some cases the department which administers a tribunal may also have a role in prosecuting or defending a matter in the tribunal.

This creates, at the very least, an impression of lack of independence which is some times all too real. It gives little confidence to an aggrieved person whose matter is being dealt with by the tribunal.

Tribunals often do not have a commitment to or capacity to apply principles of natural justice.

Indeed, it could be suggested that the extensive judicial attention to setting out rules of procedural fairness has been, at least in part, a response to the manner in which proceedings are often conducted in tribunals.

The corollary to this is that tribunals may become arbitrary in their approach. The difficulty and cost of obtaining judicial review and the fact that they are not bound by their own precedents does little to generate consistency and coherence in decision making.

It must also be questioned whether the resources currently allocated to tribunals is an efficient use of government funds. Each tribunal tends to have its own infrastructure and administrative support. This has resulted in duplication of hearing rooms which may often go unused for significant periods and duplication of facilities in the form of registries and research and executive support.

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The proliferation of tribunals is not only an inefficient application of resources. It may also be inequitable for litigants between one tribunal and another as a result of different application fees and time frames for dealing with matters depending on how well the tribunal is resourced.

I do not suggest that the ADT will replace all existing tribunals. Clearly a number of tribunals have jurisdiction in relation to matters which do not come within the definition of administrative decisions.

However, where there is a clear justification to retain a specialist tribunal it may be appropriate to provide that the ADT act as the appellate body. This again will ensure consistency in approach to administrative decisions and the application of the principles of procedural fairness to the decision making and review process.

When making original decisions the procedures of the ADT will be governed largely by the principal Act. This will permit, for example, proceedings before the legal services division to be governed by rules of evidence and for representative actions to be brought before the equal opportunity division.

As further professional disciplinary tribunals are merged with the ADT, it is proposed to develop generic procedures for professional disciplinary matters as a separate chapter of the ADT bill to maximise a consistency of approach to essentially similar matters.

Structure of the ADT

The ADT will operate through a number of divisions. Each division will represent a coherent area of sufficient size to warrant a separate division.

The ADT will be headed by a president, being a judge of the Supreme Court, or a court of equivalent status. There will be a deputy president for each division, being a person of the status of a district court judge.

In addition there will be judicial members, non-judicial members, and assessors.

Depending upon the type of matter it may be heard before a single member or a panel. I can assure honourable members that where an existing jurisdiction has been brought into the ADT which requires a community representative on the panel then that will continue to be the case.

The bill also permits the president of the tribunal by arrangement with the head of a court to make use of a judicial officer to hear a matter coming under the ADT’s jurisdiction when the president is satisfied that it will enable the ADT to more effectively exercise its functions.

Mr President, I do not intend to take the time of the House outlining all the provisions of the bill. The bill I believe sets out in clear and certain terms the arrangements and procedures for the tribunal.

I have taken some time today to set out the underlying policy imperatives which have guided the establishment of this tribunal.

This is an exciting development. I commend the bills to the House.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [11.14 a.m.]: The Opposition supports the Administrative Decisions Tribunal Bill and cognate bill. This package of legislation is not revolutionary, in the sense that it does not provide for the creation of an administrative review tribunal of the nature of the tribunal in Canberra. People in the community are critical of this legislation as it does not go far enough. In New South Wales we have approximately 100 different administrative review bodies. We need legislation to bring all those review tribunals under the one umbrella. I understand that the Administrative Decisions Tribunal Bill is just one of a series of bills that will be introduced over the next 18 months to enable all these bodies to be encompassed by the one tribunal. That is a desirable approach in New South Wales.

Let us compare the circumstances in New South Wales with the circumstances that prevail in Canberra. Canberra does not have the myriad review bodies that are to be found in New South Wales. It was much easier for Canberra to introduce legislation to establish such a body. The Government, in this piece of legislation, proposes to abolish a number of bodies, for example, the Boxing Appeals Tribunal, the Community Services Appeals Tribunal, the Equal Opportunity Tribunal, the Legal Services Tribunal, the Schools Appeals Tribunal and the Veterinary Surgeons Disciplinary Tribunal. The activities of all those tribunals will now be encompassed by the Administrative Decisions Tribunal.

This legislation is a first step towards reducing the large number of tribunals in New South Wales. I expect that, as a result of the introduction over the next 18 months of the package of legislation to which I referred earlier, many more tribunals will come under the umbrella of the Administrative Decisions Tribunal. The legislation refers also to a large number of other tribunals which refer matters to the Administrative Decisions Tribunal. The Local Court, the Supreme Court, the District Court and the Industrial Court will no longer make administrative review decisions. That task will now be performed by the Administrative Decisions Tribunal - a welcome step towards securing consistency in administrative reviews.

Decisions made by government agencies will be reviewed, but in conformity with the policies of the Government. Policies adopted by the Government will not be the subject of review. In Committee I will move certain amendments to clarify that matter. Honourable members who have had dealings with government agencies would have had departmental officials saying to them, "That is the policy of the Government." It is not the policy of the Government; it is the policy of the
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department. Departmental policies should be the subject of review. In Committee I will move a number of amendments aimed at enhancing the role of the tribunal. It has been argued that the people most suited to review administrative decisions, particularly in those cases where they might have an impact on the Government, are politicians. I do not believe that that is the view of the Government. The Opposition will move an amendment to ensure that the president of the tribunal will have been a judicial officer for a reasonable period. At present the legislation provides for a period of five years.

The Opposition will also move an amendment which will make it clear that, when the tribunal makes an order under proposed section 71(2), parties to the proceedings before it may not be represented by an agent of a particular class. That decision will be the subject of a review. The Opposition believes that this legislation should contain a sunset clause. It may well be argued that, if the legislation is not reviewed within a five-year period, the Act will lapse and, therefore, no administrative arrangement will be in place. The Opposition takes the view with such significant legislation that there should be a clear-cut review mechanism and not simply a requirement that there be a review after three or five years - which could mean that several years will pass before further legislation is introduced. This legislation will cease after five years unless further legislation is passed to provide for an efficient review process.

During their recent visit to California, a number of members of this Parliament learned various things about administration review; and this provision in the bill relates to one of those things. They discovered that in the Californian Parliament, and in the parliaments of other American States, the inclusion of a sunset clause in legislation is becoming more common; that parliaments are saying they will undertake to review laws and accept responsibility for deciding whether they should continue; and that it will not be left to the administrative whim of bureaucracies under review clauses. The Opposition is inclined to the view that that is a positive step forward, and the Opposition will more extensively examine the application of that model. Five years may not necessarily be the appropriate period, but the Opposition believes that the Parliament has to start taking much greater control of various areas of administrative action, and should decide whether legislation ought to continue. That is why the Opposition will move the amendment.

The other circulated amendment deals with the reappointment of tribunal members. There may be a perception that the president or other members will be appointed to the tribunal for life. That is not so. The legislation clearly provides that members will be appointed for a term, after which they may be reappointed. The Opposition will move to amend the legislation to provide for three-year appointments and no provision for reappointment. A three-year appointment would ensure the consistent review of the role and the decisions of administrative agencies, and would ensure that the tribunal does not become constrained in its thinking about the activities of government agencies. However, that does not mean that tribunal members will cease to be judges. They will return to the District Court or the Supreme Court, and will be replaced by other judges. The Opposition commends that approach to the House.

The Hon. I. COHEN [11.24 a.m.]: This legislation will establish the Administrative Decisions Tribunal, the ADT, and provides for its jurisdiction, structure, procedures and powers; and permits the review of administrative decisions and the rationalisation of current tribunals by merging them with the ADT. The legislation will have the effect of merging six existing tribunals into the ADT. The Greens are pleased to note that the Minister said in his second reading speech that ". . . consideration is being given to the integration of a further 21 tribunals into the ADT". The Greens generally applaud the Government’s initiative, but we do have some concerns about the legislation. First, at this stage it fails to provide extra coverage.

The jurisdiction of the ADT will be no more than a rearrangement of existing rights under the Act - that is, the rights to reasons and to external review. This falls far short of what was promised by the Australian Labor Party in 1995 and was recommended by the Law Reform Commission in 1973. There is a strong need to establish a right of review in other areas such as housing and tenancy, education, adult offenders, juvenile offenders, freedom of information, and environment and planning decisions. With regard to adult offenders the Greens consider that at least the following decisions should be considered for inclusion in the ADT’s jurisdiction: a review of decisions made by the Commissioner of Corrective Services about security classification, particularly refusals of C3 classification for an inmate; and a review of decisions made by the Offenders Review Board refusing parole.

With regard to environment and planning decisions, consideration should be given to expanding the rights of third parties to apply for merit review of planning and environment decisions by government agencies. There is no explicit
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provision to allow advocacy groups to apply to the tribunal for review of government decisions which are unfair or unlawful. In addition, there is no provision for representative actions, whether by organisations or groups of individuals. There is a limited definition of "interest" so that the tribunal will be restricted to only considering cases in which people’s economic or financial interests are affected by a government decision. The Greens will move an amendment in Committee to widen the definition of "interest". Clause 71 of the principal bill provides that the tribunal can only disallow legal representation for the purposes of oral submissions in certain circumstances.

This contrasts with the procedure in the Community Services Appeal Tribunal, which is dealt with under new section 45 of the Administrative Decisions Legislative Amendment Act, which will allow legal representation only with the leave of the tribunal. The Greens believe that in the interests of keeping the ADT informal, accessible and focused on merits review, tribunal members must be able to disallow legal representation altogether in certain circumstances. All public sector decision-makers should be required to provide an appropriately detailed statement of reasons for decisions which adversely affect people’s interests. That right should apply to people and organisations who have a genuine interest in the decision. Information about rights to appeal or complain should be provided with the statement of reasons. The Greens support the legislation, but will seek to move amendments to adjust some aspects of it.

The Hon. ELISABETH KIRKBY [11.27 a.m.]: The Australian Democrats support the Administrative Decisions Tribunal Bill 1997 and the Administrative Decisions Legislation Amendment Bill 1997. The establishment of an Administrative Decisions Tribunal, ADT, is long overdue; we should have had one many years ago. Since the Government made it known that it intended to introduce this legislation, certain concerns about the way in which the tribunal will operate have been brought to my attention. Shelter New South Wales Co-Op Ltd wrote to me on 2 June in the following terms:

The establishment of an Administrative Decisions Tribunal (ADT) would enhance the ability of people in NSW to appeal government decisions. The Bill, however, stops short of providing public housing tenants with the right of appeal to an ADT. This is an omission that should be redressed.

Currently, public housing tenants have access to a two-tiered appeals process. Tenants have the right of appeal to the Department of Housing . . . and an independent Housing Appeals Committee (HAC), which only has the power to advise the [department] on the decisions it makes. The Kent Report (1990), however, recommended that a three-tiered appeals process for State Housing Authorities be established, consisting of "management review of all disputed primary decisions; conjoint State Housing Authority/community review of disputed appeals from level one; and independent statutory arbitration of all unresolved disputes" . . .

The letter requested that I attempt to have the ADT jurisdiction expanded to cover the realm of public housing so that public housing tenants have access to a complete and fair appeals system. Shelter has requested that I support an extension of the operation of the Administrative Decisions Tribunal Bill. The Law Society of New South Wales also has a concern about legal representation. The society supports the legislation but wants to ensure that legal representation of applicants seeking relief is preserved. The society in a letter to me stated:

In particular, in those areas where appeals currently are allowed with legal representation to the various state Courts which are being brought under this legislation, the Society wished to be assured that such rights to representation would remain.

The Bill provides that a party before the Tribunal may be represented by an agent (s.71(1)) but that the Tribunal may order that the parties to the proceedings before it "may not be represented by an agent of a particular class for the purpose of the presentation of oral submissions to it . . . if the Tribunal considers it appropriate to do so" (s72(2)). The Society would be concerned if this section were to be applied to effectively exclude legal representation. In particular the Society believes that a decision by a Tribunal to exclude an agent of a particular class under s71(2)) should be an appealable decision under s112.

The most complex list of concerns was brought to my attention by the organisation People with Disabilities and the New South Wales Council for Intellectual Disability. I received the correspondence by facsimile only yesterday and regret that I have not had time to study it in detail because it is lengthy and complex. People with Disabilities has stated:

It would appear that the Government do not propose to proceed with legislation to amend the standing provision in the Community Services Complaints, Appeals and Monitoring Act 1997, but we believe it is critical that the Opposition and crossbench members remain alert to the possibility that the Government may seek to do this by stealth in the ADT and ADLA Bills. We urge you to oppose any such attempt.

The organisation seeks further consultation, but I have certainly had no time for that in the past 12 hours. The correspondence I received from the Council for Intellectual Disability includes a schedule of amendments to the bill. The amendments are detailed, and I should like the Attorney General to address them. I shall hand the correspondence over to the Minister’s advisers in order that he will have the opportunity to be fully aware of the amendments requested by the
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organisation before the House goes into Committee, which I am informed will happen later today. I intend to move an amendment to the principal bill to insert after line 2 on page 91 that an inquiry to report on the tribunal be held by a joint committee of the Legislative Council and the Legislative Assembly to be established for that purpose or by an existing joint committee to which the matter is referred by resolution of the Legislative Council and the Legislative Assembly.

This Parliament has many committees that oversight government bodies and statutory authorities, for example the Staysafe committee and committees that oversight the Health Care Complaints Commission and the Office of the Ombudsman. It would not be wrong for a parliamentary committee to oversight the operations of the Administrative Decisions Tribunal. In my opinion, that would be preferable to providing a sunset clause in the bill. The purpose of my amendment is to ensure that the Administrative Decisions Tribunal operates effectively and that any teething problems, which are almost bound to occur, can be identified early. The inquiry will effectively review the operations of the ADT, but not until it has had the opportunity to function for about 12 months and not until there has been opportunity for public input as to how effectively the tribunal is functioning. Public input should be encouraged.

With growing expectations by taxpayers to ensure that public money is being effectively spent on such departments, I am sure that a review of the operations of the ADT would assist the ADT to well serve the people of New South Wales. I hope that the Government will take my amendment on board. In view of the remarks made by the Leader of the Opposition, I am not convinced that the provision of a sunset clause will be a valuable amendment to the bill. It would appear to me that as soon as the public knows there is a sunset clause in the bill it will take the tribunal much less seriously, asking what is the point of the tribunal if it is to exist for only five years. In that regard, if a sunset clause were to provide for a period longer than five years, there would be no point in having a sunset clause.

If the tribunal comes into existence and works properly, everyone will want its work to continue. If there are problems with the tribunal, those problems could surely be addressed by way of amendment. I am sure that no government, of whatever political persuasion, would baulk at making necessary amendments in order that the tribunal might work more effectively. I support this legislation. I am delighted that the Government has seen fit to establish the Administrative Decisions Tribunal. As I have said, the tribunal is well overdue. I look forward to further discussion at the Committee stage.

Reverend the Hon. F. J. NILE [11.37 a.m.]: Call to Australia supports the Administrative Decisions Tribunal Bill and the Administrative Decisions Legislation Amendment Bill. The bills will establish an Administrative Decisions Tribunal and provide for its jurisdiction, structure, procedures and powers to permit the review of administrative decisions and rationalisations of current tribunals by merging them with the Administrative Decisions Tribunal. Call to Australia believes that it is time for rationalisation of the various tribunals and a simplification of the current system under which many tribunals operating in different areas have different ways of assessing matters and different procedures for ruling on those matters. This legislation will bring uniformity to administrative decisions.

The legislation is a positive move that will help open up government to the people. It is understood that the Government may still claim Cabinet confidentiality in relation to Cabinet papers and that matters of government policy debated in the political arena will not be brought before the Administrative Decisions Tribunal. Basically, administrative decisions made by public service bureaucrats will come within the purview of the tribunal. Through the years I have had concerns about decisions made by bureaucrats in government departments. People have complained that a perhaps over-zealous public servant has interpreted a regulation or law in a way that was never intended by the Parliament. Particularly in regard to community services some bureaucrats have interpreted the law in an officious, bombastic manner, not in recent months but down through the years and not only in New South Wales but in Australia generally.

In the past, unjustified action has been taken, and that has upset parents in particular. For example, I have heard about cases of alleged child abuse in schools. In those cases the child was taken from school, and the parents wondered where the child was because the child did not come home from school. One can imagine the distress that that caused the parents, who only found out later that the child was in the care of community services officers. Such actions can have a traumatic impact on the child, who also wonders what is happening. Strong action may be justified in some cases, but I believe it was not justified in some of the cases I have heard about. The matters could have been handled more sensitively. The parents should have been told what
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had happened and attended the school to discuss the matter. A conciliatory approach could have been adopted instead of a stand-over attitude.

So the Administrative Decisions Tribunal is needed. Some of the Federal tribunals have been abused or exploited by individuals who have an axe to grind and want to force the tribunal to spend an unnecessarily long period trying to satisfy their particular concern. For example, in a case of alleged discrimination the complainant may be supersensitive and there was no discrimination at all: the decision was simply based on the facts before the particular public servant, and there was no prejudice or bias. I know that has often happened in relation to immigration. People claim their visa applications have been rejected because of some objection based on discrimination, but usually that is shown not to be the case.

It is impossible to stop such cases from coming before tribunals. However, even taking those possible abuses into account, it is still better to have a tribunal than not to have a tribunal. The most important part of the legislation relates to the members of the tribunal. The Administrative Decisions Tribunal Bill provides that the Administrative Decisions Tribunal shall comprise a president, being a judge of the Supreme Court or other court of equivalent status; deputy presidents, being District Court judges or persons qualified for appointment as a District Court judge; and legally qualified members and non-judicial members, being persons with specified qualifications and experience or who possess special knowledge or skill in relation to any class of matters with which the ADT may deal.

The bill further provides that the tribunal may operate through specialist divisions with hearings conducted with varying degrees of formality. It establishes flexible procedures for the ADT to conduct proceedings with as little formality and technicality and with as much expedition as the requirements of the matter in question permit. The bill further provides that the ADT is to give effect to government policy. We have received correspondence from two main organisations. The Council of Social Services of New South Wales - NCOSS - has expressed some concerns. In a letter dated 23 May NCOSS stated:

The Bill will simply provide for the new Tribunal to take up rights of review which are currently available. There will be no new rights to review government decisions.

There is a strong need to establish a right of review in areas such as education and public housing. Although the government has indicated it may consider new areas for the ADT later in 1997, NCOSS is not optimistic that the creation of new rights of appeal will occur.

NCOSS also raised the role of lawyers. The letter further stated:

The new Tribunal is not a court. Its role in reviewing decisions by government officials is to rule on what the correct and preferable decision should have been in the circumstances.

The Tribunal should be inexpensive and informal.

I understand that that is basically how the tribunal will operate. We received also a submission dated 25 June from People with Disabilities (New South Wales) Incorporated. I met a deputation from that body, which represents a number of disability organisations. The deputation raised some concerns with me. Attached to the letter of 25 June is a detailed submission on the bills. The letter stated:

Although it would appear that the Government now do not propose to proceed with legislation to amend the "standing" provision in the Community Services (Complaints, Appeals and Monitoring) Act 1997, we believe it is critical that the Opposition and Cross-bench members remain alert to the possibility that the Government may seek to do this by stealth in the ADT/ADLA Bills. Again, we urge you to oppose any such attempt.

People with Disabilities thought that some restrictions may apply to what matters may be brought before the tribunal. The submission stated:

PWD and CID applaud in principle the establishment of an Administrative Decisions Tribunal at the State level. However, the Bills are disappointing in their scope. The proposed jurisdiction of the Administrative Decisions Tribunal is no more than a re-arrangement of existing rights of review.

That statement is probably correct because, as I said earlier, this legislation provides for the rationalisation and merging of a number of tribunals that deal with different issues. I understand that basically the new tribunal will cover the same areas of review as a number of other tribunals. I agree with the Government’s approach. It is better to establish new machinery before the range of matters to be dealt with by the tribunal is expanded, which then becomes another debating point and we lose sight of the simple process of establishing the Administrative Decisions Tribunal. I assume that the Government has received a copy of the submission from People with Disabilities (New South Wales) Incorporated dated 25 June, and I seek leave to table it.

Leave granted.

With those comments we support these bills.

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The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [11.47 a.m.], in reply: I thank honourable members for their considered support for these bills, which are an important development in the legal system of New South Wales. These bills are only a first step. We should be working to add to the jurisdiction of the proposed tribunal, to have more tribunals incorporated into it, and to generally expand its jurisdiction to undertake merit reviews of administrative decisions. It can be said that this reform is overdue. I recall writing a submission to the Government in about 1986 suggesting administrative law reform in New South Wales. It is now interesting and pleasing to have the opportunity to put legislation of this kind through the Parliament. I commend the bills to the House.

Motion agreed to.

Bills read a second time.

The TEMPORARY CHAIRMAN (The Hon. Jennifer Gardiner): The Committee will deal first with the Administrative Decisions Tribunal Bill.

Chapter 1

The Hon. A. G. CORBETT [11.50 a.m.]: I move amendment No. 1 circulated in my name:

No. 1 Page 2, clause 3. Insert after line 30:

(f) to foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs,

(g) to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales.

The legislation before the Committee establishes a cohesive system for the review of administrative decisions. The objects of the legislation will establish the tone of the tribunal’s functions and operations. A list of objectives establishes a framework which focuses on the procedural benefits of administrative review. The purpose of the additional objectives is to encourage the tribunal to perceive wider benefits arising from timely and effective administrative review, particularly encouraging administrative agencies to comply with the relevant legislation and to perceive review as a means of improving service delivery.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations [11.51 a.m.]: The Government does not oppose the proposed additional objects suggested by the amendment.

Amendment agreed to.

The Hon. I. COHEN [11.51 a.m.], by leave: I move Greens amendments Nos 1, 2 and 3 in globo:

No. 1 Page 3, clause 4(1), lines 20-23. Omit all words on those lines. Insert instead:

interested person - see section 10(1).

interests affected (or likely to be affected) - see section 10(2) and (3).

No. 2 Page 4, clause 4. Insert after line 32:

(4) Charts and other notes included in this Act are explanatory notes and do not form part of this Act.

No. 3 Page 7, lines 6-8. Omit all words on those lines. Insert instead:

10 When does a person have an interest in a decision?

(1) References to interested persons

An interested person is a person who is entitled under an enactment to make an application to the Tribunal for an original decision or a review of a reviewable decision (as the case may be).

(2) References to other persons whose interests are affected

In any reference in this Act to a person whose interests are affected (or likely to be affected) by a decision:

(a) a reference to interests is a reference to interests of any kind and is not limited to a reference to proprietary, economic or financial interests, and

(b) a reference to interests of a person includes a reference to interests of an organisation or association of persons (whether incorporated or not), and

(c) a reference to interests affected (or likely to be affected) by a decision includes a reference to interests affected (or likely to be affected) whether directly or indirectly, and whether or not the interests of any other person are also affected (or likely to be affected) by the same decision.

(3) When interests of organisation or association taken to be affected

For the purposes of subsection (2), an organisation or association of persons

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(whether incorporated or not) is taken to have interests that are affected (or likely to be affected) by a decision if:

(a) the decision relates to a matter included in the objects or purposes of the organisation or association, and

(b) the decision was made after the organisation or association was formed and after the objects or purposes of the organisation included the matter concerned.

The amendments expand the definition of "interested person", as it is currently considered by the Greens to be too narrow. Without these amendments, it is distinctly possible that the only additional persons who might be heard by the tribunal in relation to a decision are those persons able to show that their financial or ownership interests are or will be affected by the decision. The amendments ensure that persons whose wider interests - for example, health, environmental and social - are affected by the decision are able to apply to be heard. That is important, given the types of jurisdiction that the new tribunal is collecting under its umbrella, for example, community services appeals.

The amendments also ensure that, within limits, organisations and associations are able to be heard where their interests are affected. There are always mechanisms for the tribunal to limit such applications where appropriate. For example, a person or organisation may only be admitted if the tribunal exercises its discretion. One of the determinative factors is whether the decision relates to a matter included in the objects or purposes of the organisation or association. The decision should be made after the organisation is formed and after the matter concerned had been included in the objects or purposes of the organisation. That would prevent organisations that established themselves after a particular decision was made being granted standing to campaign in relation to the decision. Amendment No. 2 merely shifts the whole section into clause 4, thus enabling room for the "interested person" section.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [11.53 a.m.]: The Opposition does not support these amendments. The purpose of the legislation is to amalgamate, without significant policy change, the roles of a number of different agencies into the new Administrative Decisions Tribunal. The intention of the legislation, with the exception of the community services area, is to allow a right of review to an individual whose rights or entitlements have been the subject of a decision. In relation to appeals in the community services area, particularly those involving people with disabilities, it was intended that a broader avenue of review would be given to groups or organisations representing the interests of such people.

The reason for that is many disabled people do not have anyone to advocate their rights. It would be evident to those of us who have had the unfortunate experience of visiting the institutions where people with disabilities reside that they are almost abandoned. The legislation is structured to allow third parties such as the Council for Intellectual Disability to advocate the review of decisions on behalf of the disabled. The Opposition supports community services matters being dealt with in that way. We do not believe that the bill should be extended to include a broader range of people to advocate the rights of individuals.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations [11.55 a.m.]: Similarly, the Government cannot accept these amendments. The amendments would expand the definition of the phrase, "any other person whose interests are affected by the reviewable decision (or are likely to be affected by the original decision", which is used in clause 67(4) to identify persons who may apply to be made a party to other proceedings for a review of the decision instituted by an interested person. The amendments would permit organisations who claim to represent the public interest to intervene in a review that has been initiated by an interested person. Standing provisions for the ADT have been developed in keeping with the philosophy of the tribunal keeping procedures flexible with a range of procedural options capable of being adapted to the variety of matters that will come before it. The issue of who will be eligible to apply for a review of administrative action, including the availability of representative actions, will be resolved flexibly with standing provisions contained in the relevant enactments that confer jurisdiction on the ADT adapted to the nature of the subject matter. Under the bill as it stands, persons other than the applicant whose interests are affected by the reviewable decision may also apply to the tribunal to be made parties to the proceedings.

Amendments negatived.

Chapter as amended agreed to.

Chapter 2

The Hon. J. P. HANNAFORD (Leader of the Opposition) [11.58 a.m.]: I move Opposition amendment No. 1 as circulated:

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No. 1 Page 12, clause 17, lines 15-27. Omit all words on those lines. Insert instead:

(1) The President
A person is eligible to be appointed as the President only if the person holds any of the following offices and has held the office for a period of at least 5 years:

(a) a Judge of the District Court,

(b) a Judicial Member of the Industrial Relations Commission,

(c) a Judge of the Land and Environment Court,

(d) a Judge of the Supreme Court.

(2) Deputy Presidents
A person is eligible to be appointed as a Deputy President only if the person holds (or has held) office as a judicial officer or a non-presidential judicial member and has held (or held) that office for a period of at least 5 years.

(3) Non-presidential judicial members
A person is eligible to be appointed as a non-presidential judicial member only if the person:

(a) holds (or has held) office as a judicial officer, or

(b) is a legal practitioner of at least 7 years standing.

The purpose of the amendment is to ensure that persons who are eligible to be appointed as presidents or deputy presidents should have at least a five-year period of experience as judicial officers and that a person who is a non-presidential judicial member should only be entitled to be appointed if they hold offices as judicial officers or are legal practitioners of at least seven years standing. As I said in my contribution to the second reading debate, the amendment is intended to ensure that the status of tribunal is enhanced and that abuse of appointments to it is minimised. I cite as an example the president of the Tribunal. The amendment states that the person appointed as president must have held a judicial office for at least five years. A government can appoint as Chief Justice of Australia or as Chief Justice of the State a person who has not held any judicial office at all. Indeed, the present Chief Justice of New South Wales was appointed directly from the bar.

To say that to be considered for appointment as the president of this tribunal a person needs to have been a judge for five years unduly restricts the candidature. The amendment is without any rational basis and restricts the process of appointment, and it is rejected by the Government. I undertake that, so far as I am involved in the appointment process, I will recommend people on merit irrespective of their background. I have an obvious interest to see this tribunal work well and efficiently and also to ensure that it is seen as credible and legitimate. Honourable members should not have any fears or apprehensions about this appointment. Therefore, there is no reason to single out this appointment process from the appointment of judges and magistrates generally.

Amendment negatived.

Chapter agreed to.

Pursuant to sessional orders progress reported and leave granted to sit again.

The Hon. VIRGINIA CHADWICK: I ask the Attorney General a question without notice. Yesterday in question time did the Attorney confirm that 166 students had been absent from a certain public high school on the previous day? Did the Attorney further state, "that level of absenteeism is normal and not unusual"? Is the Attorney aware that this figure represents an absentee rate of 17 per cent? Is this "normal" rate a direct result of the Government’s cutback on home school liaison officers, a cutback to 96 from 106 so far in the term of this Government?

The Hon. J. W. SHAW: I did say in question time that my information was that 166 children had been absent from a particular school on a particular day. I indicated, on advice from the Department of School Education, that that was regarded as normal. I defer to the honourable member’s expertise on normal rates of absenteeism in secondary schools in New South Wales, but I have given the House the information that I received from the department. As to whether that is acceptable or unacceptable I could not proffer a view.

The Hon. B. H. VAUGHAN: Does the Attorney recall answering a question from the Hon. Dr Meredith Burgmann last week in relation to the Street report into the conciliation of disputed workers compensation claims? In view of the Attorney’s answer relating to the conciliation model recommended by Sir Laurence Street, will the Attorney consider establishing a similar conciliation
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model in respect of disputed compulsory third-party insurance claims?

The Hon. J. W. SHAW: I thank the Hon. B. H. Vaughan for his interesting and constructive suggestion. It is worthwhile considering the application of a conciliation model to motor traffic negligence claims. My information is that that model of conciliation is working well in the area of workers compensation. I give appropriate credit to Sir Laurence Street for working up the model and giving us the benefit of his expertise about mediation techniques in that area.

I do not have any concluded or firm view about whether that is an appropriate model to apply to compulsory third-party insurance claims. However, concern has been expressed in the community and articulated by Mr Steve Mark about rising legal costs in the area of motor vehicle accident litigation. If those suggestions have a basis in fact, alternative dispute resolutions should be seriously considered. In response to the question, I undertake to have the Motor Accidents Authority explore whether there ought to be less formal and less expensive alternatives to litigation of third-party motor accident claims.

The Hon. M. J. GALLACHER: My question without notice is directed to the Minister for Community Services. Can the Minister explain why the Central Coast Joint Investigative Team, formed to combat the alarmingly high incidence of child abuse, is to be closed? Why does the Government refuse to accept and recognise the central coast as a separate region outside Sydney and Newcastle?

The Hon. R. D. DYER: The honourable member’s information is totally wrong.

The Hon. ANN SYMONDS: Can the Attorney inform the House about the Indigenous Deaths in Custody Summit which he is to attend next week?

The Hon. J. W. SHAW: I thank the Hon. Ann Symonds for her question about the summit, which has been organised by the Commonwealth Government and is scheduled to meet in Canberra on 4 July 1997. The New South Wales Government will participate in that national summit, which is to be hosted by the Commonwealth Attorney-General, Mr Daryl Williams, and the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs, Senator John Herron. The purpose of the summit is for the Commonwealth, State and Territory governments to recommit to the implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody. In the morning session of the summit indigenous representatives will outline a series of recommendations about indigenous deaths in custody. These will be formally responded to by the Commonwealth and each State and Territory.

The New South Wales response is to be coordinated by the Cabinet Office. In the afternoon there will be three sessions dealing with broad issues of great importance to the question of indigenous deaths in custody. They are: one, underlying issues; two, overrepresentation; and three, custodial care. On behalf of New South Wales I will deliver the lead paper on the session on overrepresentation of indigenous people in custody. My paper will cover juvenile justice, policing and diversionary strategies - including youth conferencing, courts, crime prevention and legal representation. Legal representation for indigenous people is an issue of particular concern for the New South Wales Government.

It is an issue upon which the Government will continue to lobby the Commonwealth Government to make a genuine commitment to addressing this issue. No doubt I will report to the House in due course. The submissions will relate to the overrepresentation of Aboriginal people in our justice system and in relation to legal representation for indigenous people, which is a critical issue in the light of extreme difficulties experienced in recent times by the Aboriginal Legal Service based at Redfern. The Commonwealth Government, through its agencies such as ATSIC, and the State Government are actively discussing what can be done positively to make sure that Aboriginal people are competently represented in the courts.

The Hon. Dr B. P. V. PEZZUTTI: My question is directed to the Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council. Is the Treasurer aware that Twin Towns Services Club has had to shelve a $40 million international hotel development at Tweed Heads? Is the Treasurer aware that because of the Government’s increased poker machine tax the Macquarie Bank has decided not to proceed with its assistance for the
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development? Does the Treasurer still believe that the increased poker machine tax is appropriate? Does the Treasurer have any advice for Twin Towns Services Club and other clubs on how they should deal with investors who now view them as a major risk? Is the Treasurer aware of the repercussions of this decision for Tweed Heads and, no doubt, for the rest of the State? Does the Treasurer agree that this setback for Twin Towns Services Club augurs ill for the club as well as for the future of other clubs?

The Hon. M. R. EGAN: The simple answer is yes, I do believe that the increased poker machine tax is appropriate, as apparently do the people of New South Wales, if opinion poll results are any indication, although I admit that I am usually not a believer in opinion poll results; I always prefer them when they are on the way up rather than on the way down. The Twin Towns Services Club has to make its own commercial decisions. There are quite a number of clubs in Tweed Heads. Indeed, I think the dollars invested in clubs in that part of the State would be greater than in any other part of New South Wales. That is because of historical reasons - the fact that until very recently there were no poker machines in Queensland, which led to a huge development of licensed clubs just south of the New South Wales-Queensland border.

The Hon. Dr B. P. V. Pezzutti: That change has been around for three years.

The Hon. M. R. EGAN: Yes, but it obviously has an impact on the ability of clubs in Tweed Heads to invest in new facilities. I should have thought it was obvious that the type of investment Tweed Heads clubs put into new facilities prior to Queensland introducing poker machines could not be sustainable in the long term. The Tweed Heads clubs once had a population catchment area that ranged from Tweed Heads to as far as Brisbane. They no longer have that catchment area and a rationalisation will occur as a result. All of those clubs have to make their own commercial decisions. I can say that the Tweed Heads clubs will be able to compete with their Queensland competitors with the benefit of a lower rate of poker machine tax than applies in Queensland.

Reverend the Hon. F. J. NILE: I ask the Attorney General a question without notice. Is it a fact that the High Court has agreed to hear an appeal lodged by Mr Bob Katter, a member of the House of Representatives, concerning a defamation case brought against him by Mr Peter Laurance? Is it a fact that Mr Katter is basing his appeal on the claim of parliamentary privilege - that an answer he gave outside Parliament House in reply to media questions about the truth of a statement he made in Parliament was covered by parliamentary privilege? What bearing will this unique case have on parliamentary privilege rights in New South Wales if a member repeats outside Parliament House a statement previously put on the parliamentary record? Will the New South Wales Government be an observer to or a participant in this case to protect our parliamentary privilege?

The Hon. J. W. SHAW: I am not familiar with that particular piece of High Court litigation to which Reverend the Hon. F. J. Nile refers. Because it is of interest to members of Parliament generally and may have application to New South Wales, I will undertake to obtain a briefing on the case and report back to Parliament if it has any implications for the legal position of members of Parliament who might be so incautious as to repeat material outside the House that they have put on the parliamentary record.

The Hon. JANELLE SAFFIN: I address my question without notice to the Minister for Community Services, Minister for Aged Services, and Minister for Disability Services. Will the Minister provide the House with details of the continued success of the New South Wales Seniors Card?

The Hon. R. D. DYER: Next Tuesday, 1 July, the New South Wales Seniors Card will be five years old. This is a significant achievement. The New South Wales Seniors Card now has the largest membership in Australia with more than 850,000 members. About 60,000 new cards are issued each year to eligible seniors, that is, those who are aged 60 and over and not in full-time employment. The continued success of the Seniors Card allows its members to receive discounts on a wide range of goods and services from more than 4,000 businesses. Seniors Card holders can now receive discounts on airline tickets, restaurant meals, insurance, sporting goods, clothing, jewellery, home furnishings, car parts, and accommodation. The introduction of regional Seniors Card directories last year has proved to be a great success. As a result of a business recruitment drive, more than 1,900 new businesses have joined the scheme.

The Hon. Virginia Chadwick: That is amazing.

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The Hon. R. D. DYER: The Hon. Virginia Chadwick said that is amazing. It is an indication of how assiduously the Government is promoting the Seniors Card scheme. To give just one example, 161 businesses now give Seniors Card discounts in the Illawarra. Seniors are an important and fast-growing consumer market and the Seniors Card rewards that buying power. The Government provides the majority of the running costs of the Seniors Card and also contributes significantly with transport concessions, which continue to be the most generous in Australia. To mark the occasion of five years of the Seniors Card, a birthday celebration will be held next Tuesday at the National Maritime Museum at Darling Harbour.

The birthday bash will be broadcast live from the maritime museum by Bob Rogers. Some honourable members opposite will remember Bob Rogers from his earlier days on radio. The 2CH crew and GIO Australia will provide free morning and afternoon teas for card holders. Last year GIO Australia joined up as the scheme’s major sponsor. I am pleased to advise the House that GIO will continue its sponsorship for a second year. A number of special guests will attend throughout the day and I look forward to joining in those celebrations. I extend an invitation to my colleagues in this House to come along on Tuesday and see for themselves the outstanding success that is the New South Wales Seniors Card.

The Hon. Dr MARLENE GOLDSMITH: I ask the Treasurer, representing the Minister for the Olympics, and Minister for Roads: is the Treasurer aware that the Minister for Roads has promised to buy houses above the M2 motorway tunnel at their value before the tunnel was proposed? Is the Minister aware that in the intervening period property values in Sydney have increased substantially and that the owners of these houses, if they accept the Minister’s offer, will endure a considerable loss when compared with the value of their homes if the tunnel was not constructed?

The Hon. M. R. EGAN: I will refer the honourable member’s question to the Minister for Roads. I note that some honourable members have asked me questions in my capacity as Minister representing the Minister for the Olympics, and Minister for Roads. Those portfolios are now administered by two different Ministers.

The Hon. Dr MEREDITH BURGMANN: Will the Attorney General inform the House of the support given by the Government to the funding of the New South Wales Working Women’s Centre?

The Hon. J. W. SHAW: The Government will provide some funding to the New South Wales Working Women’s Centre in the new financial year to enable it to conduct two projects targeted at women workers from non-English speaking backgrounds, and Aboriginal and Torres Strait Islander backgrounds, as well as women in rural areas. The centre is presently core funded by the Federal Government. However, that funding is under threat. The centre provides information, advice and direct support to women in relation to all work-related matters. It encourages women to be active in their unions and in their workplace to achieve their rights at work. It further aims to increase the knowledge and industrial bargaining power of women, who are often vulnerable in the New South Wales work force, and work towards ensuring, that unions, employers, government and non-government agencies effectively address the concerns of women.

The Hon. Helen Sham-Ho: Do they have bilingual workers?

The Hon. J. W. SHAW: I am not sure, but I will make that inquiry. The Government has attempted and, I think, succeeded in making women’s industrial relations issues a priority. That has involved a commitment to ensure the development of innovative projects that enable the development of policies in the interests of women in New South Wales. The proper resourcing and expansion of the Women’s Equity Bureau in the New South Wales Department of Industrial Relations has enabled it to undertake research and provide policy advice of a very high standard to the Government. The funding of the Working Women’s Centre will enhance the work already being done by the department, particularly in relation to the provision of industrial information, advice and advocacy for women in the groups I have already specified.

The project funding that the Government will provide to the centre will increase awareness among women employees of their rights and entitlements under the legislation, including industrial and anti-discrimination legislation. This includes promoting participation in industrial relations by employees and employers as defined in the objects of the New South Wales Industrial Relations Act 1996. It is expected that the projects will provide New South Wales working women with a better understanding of their rights and obligations under the law and, therefore, enhance the implementation of the equity framework established by the Industrial Relations Act 1996. The Working Women’s Centre, the Women’s Equity Bureau and the DIR will work
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closely to enhance and advance women’s paid employment equity in New South Wales.

The Hon. HELEN SHAM-HO: I ask the Attorney General, the following question without notice. Is it a fact that the sister State relationship between New South Wales and Guangdong, China, is continuing? In view of the rapid economic growth of Guangdong, will the Minister advise the House what kind of initiatives or projects have been undertaken by the Department of State and Regional Development to take advantage of the economic growth of Guangdong to benefit New South Wales? Does the Minister understand that "Guan Xi", meaning "personal relationship", is one of the most important ingredients in doing business with Chinese people? As I am the only member of Parliament of Chinese descent in this State, and the only member with bilingual skills, knowledge, experience and network in this area, why is the Minister excluding me from meeting with delegations from Guangdong, or China? Will the Minister rectify this biased approach?

The Hon. M. R. EGAN: I am absolutely staggered to hear the claim of the Hon. Helen Sham-Ho. The New South Wales Government takes very seriously its sister State relationship with Guangdong province. I remember meeting the Governor of that province in 1979 when he visited New South Wales to establish the sister State relationship. I would be most keen to take advantage of the opportunities provided by the presence of the Hon. Helen Sham-Ho at any function -

The Hon. Helen Sham-Ho: You said that before.

The Hon. M. R. EGAN: Yes, and I can assure the Hon. Helen Sham-Ho that I have not excluded her from anything.

The Hon. Helen Sham-Ho: Not once have I attended any delegations or meetings.

The Hon. M. R. EGAN: Representatives from Guangdong come to Australia only once every two years.

The Hon. Helen Sham-Ho: No, that is not true. Many delegations come from China.

The Hon. M. R. EGAN: I am sure, but the official Guangdong delegation under the sister State relationship make a biennial visit. Every second year New South Wales sends a delegation to Guangdong province. I do not know whether the honourable member has been a member of any of those delegations.

The Hon. Helen Sham-Ho: Before.

The Hon. M. R. EGAN: She has already been. I can assure the honourable member that there is no intention on my part to exclude her.

The Hon. JAN BURNSWOODS: Will the Attorney General, and Minister for Industrial Relations give the House some details of the progress made in the pilot program for disputed workers compensation claims being conducted within the Department of Industrial Relations?

The Hon. J. W. SHAW: Earlier, in answer to another question, I adverted to the operation of the conciliation service in the workers compensation context, and I would like to give one or two details as to how the service has performed, bearing in mind it is very early days. I am advised that as at 20 June a total of 188 applications had been lodged with the workers compensation resolution service, 120 of which were lodged in the past three weeks. The acceleration in applications is consistent with the workload of the pilot scheme. As honourable members would know, the workers compensation resolution service was established within the Department of Industrial Relations and has engaged six experienced conciliators for the pilot scheme. They have had extensive training with the Australian Commercial Disputes Centre. I am advised that as at 20 June some 43 matters had been completely finalised - that is, the claim has been accepted by the insurer, the application has been withdrawn by the worker, or the matter has been unresolved after a conciliation conference.

I am sure that honourable members will be pleased to know that of those 43 matters, 33 - or 76 per cent - have been satisfactorily resolved, with only 10 of the matters needing to go to the court for resolution. The effect of this is that disputes which, in the main, relate to weekly benefits and medical expenses, have been resolved within 21 days of lodgement with the service, rather than having to wait a considerable period of time to come before the court. They are impressive statistics, but I have to add the caveat that it is very early days for this project, and it would be wrong to draw dogmatic conclusions from the data so far. However, I am pleased that disputes are resolved more quickly and
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less expensively than was previously the case, and that they are resolved without the need for court process in the workers compensation area.

The Hon. JENNIFER GARDINER: Does the Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council recall that twice I have asked for details to be provided to the House in respect of the Deutsche Morgan Grenfell consultancy work allocated to the Hogg committee, adding the request for an undertaking that any further consultancy work to do with the electricity privatisation process be put out to tender? Why has it taken so long to obtain an answer to this simple question? Will the Minister try to obtain an answer before the House rises for the conclusion of this session?

The Hon. M. R. EGAN: I am not sure that I can get an answer today, but my understanding is that the procedure is that answers can be tabled out of session. We often do that. Sometimes I do not know what happens to answers after I have signed them off. I assume they appear on a piece of paper that hits people’s desks. The honourable member should not have too much longer to wait. She can look forward to some good reading during the parliamentary recess.

The Hon P. T. PRIMROSE: Is the Attorney General, and Minister for Industrial Relations aware of a court case involving a Wingham tanning factory and shocking injuries sustained by a 19-year-old employee?

The Hon. J. W. SHAW: Yes. My understanding is that a decision of the Industrial Relations Commission was handed down by Justice Fisher. The matter was dealt with under the Occupational Health and Safety Act. Australian Veg-Tanners Pty Limited are the manufacturers of mainly leather products. In November 1995 a 19-year-old employee, engaged as a casual drum assistant, sustained crush injuries to his left hand when it was caught in an unguarded machine known as a setter.

As a result of those injuries the 19-year-old lost his thumb, middle finger and index finger on his left hand; the bone between his index finger and wrist had to be taken out resulting in him having no wrist; a piece of bone from his pelvis was used to place in there as a possible foundation for the transfer of a toe; three plates were used to hold his hand to his arm in the place of a wrist. The 19-year-old had skin grafts from both legs, a groin flap from the left side and a vein graft from the right leg. In short, he suffered very serious injuries.

The Hon. D. F. Moppett: Have you any more details?

The Hon. J. W. SHAW: It is a serious case. A timber guard had been missing from the machine for five days, according to evidence given before the Industrial Relations Commission. One has to ask: what would management be doing allowing a timber guard to be absent from this kind of machine for five days? It is unacceptable. It is understandable, therefore, that the Industrial Relations Commission found that, on the evidence, no adequate training or instruction had been given to employees about how to operate the machine, or set the machine which was clearly dangerous. The President of the Industrial Relations Commission found that this was a case where the employee, without fault on his part and working as directed, had, in the ordinary course of employment, been exposed to a clearly avoidable risk of injury, undergone pain and suffering and acquired disabilities of a significant kind that he will carry through the rest of his life. It is a tragic case. His Honour stated:

It is not short of disgraceful that major neglect of obvious well known and straightforward precautions against essentially avoidable risks of injury should be permitted to continue.

Hence, a fine of $35,000 was imposed on the employer company. It is staggering that in 1997 employers permit machinery that is clearly dangerous to remain unguarded. There is an object lesson here for management.

The Hon. ELISABETH KIRKBY: My question without notice is directed to the Minister representing the Premier. Is it a fact that the litigation between the Commonwealth Government and ANI Codock concerning Cockatoo Island has now concluded? Does this mean that the Commonwealth can now offer Cockatoo Island for sale at any time? Will the Premier negotiate with the Commonwealth Government to ensure that Cockatoo Island is handed back to New South Wales so that its remarkable heritage qualities can be preserved and it can form part of the Sydney Harbour Park, and to prevent it from falling into the hands of developers?

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The Hon. M. R. EGAN: I was not aware of the information that the Hon. Elisabeth Kirkby has drawn to the attention of the House but I thank her for bringing it to my attention. I am sure the Premier will be most interested in it and in the proposal put forward by the Hon. Elisabeth Kirkby.

The Hon. Dr MARLENE GOLDSMITH: My question without notice is addressed to the Attorney General, and Minister for Industrial Relations. Given the Minister’s concern about safety in the workplace, will he give serious consideration to the visual hazard to members of the Opposition in this House caused by the glare from the tie he is currently wearing? Will the Minister advise the Opposition in future when he intends to wear this extremely orange item so that we might take the precaution of bringing sunglasses to the Chamber?

The Hon. J. W. SHAW: I am pleased that we are getting near the end of the session because facetiousness seems to be prevailing.

The PRESIDENT: Order! The question does not relate to the public affairs of New South Wales.

The Hon. VIRGINIA CHADWICK: My question without notice is directed to the Treasurer, and Leader of the House. Has he had the opportunity to study the Audit Office report on corporate governance? Does the report suggest that current governance models tend to create confusion and tension in the roles, responsibilities and decision-making powers of the boards, the Minister and the chief executive officer? Now that these weaknesses have been identified, will the Government systematically review and reform all boards, councils and committees?

The Hon. M. R. EGAN: No, I have not read the Auditor-General’s report. It is part of my parliamentary recess reading. Certainly the question of governance arrangements in relation to government-owned authorities, and particularly commercial authorities, is a very important one. There is not sufficient understanding, not only within the community but also, regrettably, not even within the intelligent media - and very often not even within Parliament - about what the appropriate governance arrangements should be. That is apparent from, for example, the number of questions I am asked about commercial decisions of State-owned corporations of which I happen to be a shareholder. The questions indicate that those members who ask them do not understand the role of the shareholding Minister. I will be looking forward to reading the Auditor-General’s comments and views and I suggest that other members might do likewise. It might alert them to some of the changes that have been taking place, and generally to the issue of appropriate governance arrangements.

The Hon. VIRGINIA CHADWICK: I ask a supplementary question. In view of the Treasurer’s response - with which I agree, I might add - is he aware that the report states that 66 per cent of surveyed boards had no performance agreement with the relevant Minister; 67 per cent had not met with their Minister in the past 12 months; and that only 43 per cent of the chairpersons had met with the Minister over the same period? With a view to educating all members of the community, will the Leader of the House take this into consideration in terms of reviewing the operation of and relationship between these bodies and their Minister, and the government of the day?

The Hon. M. R. EGAN: I look forward to reading that when I read the Auditor-General’s report.

The Hon. I. COHEN: I ask the Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council a question. Did he receive information regarding Ross Mining’s Timbarra goldmine development to the effect that the amended development proposal may not meet the requirements of State environmental planning policy 34? If so, why did the Minister not act on the information and require that the mining company follow the procedure set out in part 4 of the Environmental Planning and Assessment Act and ensure an independent appraisal of this significant and potentially environmentally devastating proposal in north-eastern New South Wales?

The Hon. M. R. EGAN: I will refer the honourable member’s question to the appropriate Minister.

The Hon. J. M. SAMIOS: I ask the Treasurer, Minister for Energy, Minister for State
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and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council a question. Will he bring on the debate of the coalition’s Snowy Mountains water inquiry legislation at his earliest convenience? If not, why not?

The Hon. M. R. EGAN: The conduct of the business of the House is a matter for the Government and I would not want to signal my intentions.

The Hon. JENNIFER GARDINER: My question without notice is directed to the Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, Vice-President of the Executive Council, and Leader of the House. When does he propose to issue a media release expressing his Government’s delight at the passage of the prevention of cruelty to animals legislation, complete with the sensational amendments inserted into it by the Hon. R. S. L. Jones with the Government’s enthusiastic support? Will the Treasurer now be supporting the unleashing of the animal liberation vigilantes of the Hon. R. S. L. Jones onto this State’s valuable intensive agricultural industries? Is he looking forward to his next encounter with the horseracing industry? Is the Treasurer prepared to say what deal his Government has apparently done with the Hon. R. S. L. Jones in respect of this long-awaited - and much feared, so far as rural people are concerned - legislation? If so, how will the bill’s passage enhance the Government’s planning in rural New South Wales?

The Hon. M. R. EGAN: I have not issued a media release in this regard, nor would it be appropriate for me to do so. The Minister for Agriculture has issued a media release on behalf of the Government.

The Hon. R. S. L. JONES: Will the Treasurer confirm whether Victorian privatised electricity generators have been promised compensation if stronger action is required on greenhouse gas and pollution reductions? Will he assure the House that he will not insert compensation clauses in contracts if such privatisations take place in New South Wales?

The Hon. M. R. EGAN: I am not aware of any compensation clauses in Victoria.

The Hon. D. J. Gay: You had better check the deal.

The Hon. M. R. EGAN: Check whose deal?

The Hon. D. J. Gay: Check the fine print of the deal you did with the Hon. R. S. L. Jones.

The Hon. M. R. EGAN: It would not be a deal that one would do with the Hon. R. S. L. Jones. We all know that he is an astute investor, but I do not think he has the financial wherewithal to snap up a big generator or distributor. He may be able to buy the Crookwell wind farm, but in a few years it will be so big that he will not be able to buy it either. I do not know what deals the Victorian Government has done in relation to the privatisation of its electricity industry. I would have thought that any provisions such as those referred to by the Hon. R. S. L. Jones should be public knowledge.

The Hon. D. F. MOPPETT: My question without notice is directed to the Attorney General. Is the Attorney General aware of a recent shooting in the Bourke district, in which a resident suffered gunshot wounds as a result of police action? In view of reported tensions in that community, how will he respond to the call of Lyall Munro, a well-known advocate for the Aboriginal community, for an independent inquiry into the incident?

The Hon. J. W. SHAW: I have read newspaper reports of the incident and I was disturbed to learn that tensions are greater than normal in Bourke. I do not purport to have a vast knowledge of the town or its internal relationships, but I have some knowledge of the situation. I know that there is a sensitivity in terms of relationships between different groups in the community. It is unlikely to fall within my province to call for an independent inquiry into the incident. However, I will liaise with the Minister for Police to see whether such an inquiry would be useful in the interests of justice. Obviously, we would need to take into account the feelings in the town. I will give the matter proper consideration.

The Hon. PATRICIA FORSYTHE: My question without notice is directed to the Minister for Community Services, Minister for Aged Services, and Minister for Disability Services. I refer to the Royal Place allegations. Is it a fact that a resident fell from a window, leaving him paralysed, and the police were not called? Is it also a fact that
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a serious sexual assault occurred and the police were not called for at least a week? What guidelines are in place for the staff of group homes in handling and reporting critical incidents? Is it a routine policy of the department not to involve the police in incidents which, in any other setting, would require such investigation? Will the Minister call for an inquiry into these specific incidents?

The Hon. R. D. DYER: I received the consultant’s report on Royal Place after 9 a.m. today and I have had an opportunity to peruse the 48 recommendations contained in the report. However, because of my commitments so far today, I have not had an opportunity to absorb the detail of the report. I advise honourable members that because of complaints raised concerning Royal Place the Department of Community Services commissioned an independent inquiry by Miss Houlihan. Mr Roger West, the Community Services Commissioner, will be furnished with a copy of the report. Yesterday I announced that the Ageing and Disability Department will establish a specialised unit to train staff to monitor and manage all incidents of assault, in collaboration with existing service providers. I anticipate that that will commence within the next few weeks, using staff who are highly experienced in that area.

It is necessary to take a proactive approach to aim to prevent assault. No-one in the State is above the criminal law. A former Master of the Rolls in Great Britain, Lord Denning, is famous for saying, "Be you ever so high the law is above you." That statement applies to employees of the Department of Community Services. I was briefed by the department this morning, with an indication that an implementation plan is being prepared regarding the recommendations of Ms Houlihan’s report. That will be provided to me as soon as it is completed. At this stage it would be premature of me to comment in detail on the matters referred to in the question until I have had an opportunity to absorb the report and receive further advice from my officers.

The Hon. D. F. MOPPETT: My question without notice is directed to the Treasurer, representing the Minister for Transport. Is the Minister aware of the proposal for a rail transport corridor from Melbourne to Darwin, via Dubbo, Toowoomba and Mt Isa, as advocated by Mr Everald Compton, the Chairman of the Australian Transport and Energy Corridor Company? Will the Minister undertake to do a feasibility study on the necessary rail connection north from Coonamble to Moree? If such a feasibility study indicates that the project is viable, will the Government be prepared to make the necessary funds available to construct that track connection?

The Hon. M. R. EGAN: I will refer the question to my colleague the Minister for Transport.

The Hon. PATRICIA FORSYTHE: My question without notice is directed to the Minister for Community Services, Minister for Aged Services, and Minister for Disability Services. Did the Audit Office report into large residential centres for people with a disability find that there are no formal arrangements between the Ageing and Disability Department and the Department of Community Services for the delivery of government services and the monitoring of service delivery? As the Ageing and Disability Department is a creature of this Government, will the Minister explain why two years after its creation no such arrangements are in place? As this was also a criticism in the report of the Council on the Cost of Government, what has the Minister done since February to get the relationship between his departments functioning at a level that could be judged, even remotely, as satisfactory? Has he given any clear directions on this?

The Hon. R. D. DYER: Yes, I have. The Ageing and Disability Department and the Department of Community Services will shortly complete a formal agreement that will define the roles and responsibilities of each organisation. Under the new arrangements the relationship between the departments will be defined as to expected outcomes and there will be a stronger focus on the performance of both organisations. The new arrangements will provide the base for a more targeted process of monitoring the outputs and outcomes of both organisations. The monitoring process will result in enhanced transparency in the performance of all direct services provided by the Department of Community Services and funded by the Ageing and Disability Department. Those arrangements will require performance indicators to be developed for each service provided by the Department of Community Services along the same lines as the requirements for non-government providers funded by the Ageing and Disability Department.

The Hon. R. S. L. JONES: Can the Treasurer tell the House explicitly, precisely and unequivocally exactly how he intends to protect Pacific Solar if Pacific Power is privatised?

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The Hon. M. R. EGAN: The actions the Government will take to protect Pacific Solar and the great advantage it will give this State will depend on what other arrangements are put in place for the electricity industry generally. At present Pacific Solar will stay with Pacific Power. However, as the honourable member knows, I have released a discussion paper and if the situation changes regarding Pacific Power, obviously the Government will have to look at arrangements for Pacific Solar to ensure the future of that organisation and that its almost assured success benefits the people of New South Wales.

The Hon. D. J. GAY: My question without notice is directed to the Treasurer, and Minister for Energy. Will the Minister confirm whether the remarks of the honourable member for Newcastle, Mr Bryce Gaudry, linking the privatisation of public enterprises to increasing utility prices for household consumers, as reported on the front page of today’s Newcastle Herald, represent the Government’s position on the electricity sector?

The Hon. M. R. EGAN: I assure the Hon. D. J. Gay that Mr Gaudry does not speak for the Government.

The Hon. PATRICIA FORSYTHE: My question without notice is directed to the Minister for Community Services, Minister for Aged Services, and Minister for Disability Services. Does the Audit Office report confirm that community visitors have no authority to ensure that the department implements the recommendations and that recommendations are not automatically referred either to the Minister or to directors of his departments? What steps will the Minister immediately introduce to ensure he is made aware of deficiencies in the system? Given that the Minister has always described the increase in community visitor numbers as one of his achievements, would he agree it is a hollow achievement unless the authority of the visitors is enhanced?

The Hon. R. D. DYER: I adhere to all my previous statements claiming credit for the Government in appointing additional community visitors. Five times more community visitors are now in the field than there were under the previous Government. Regardless of what the Hon. Patricia Forsythe might say, if there were only seven community visitors under the previous Government, no matter what systems were in place, those community visitors could do very little. Community visitors do an excellent job. If it were not for community visitors, the problems at the Hall for Children would not have been drawn to my attention. That facility existed under the previous Government; the abuses existed under the previous Government.

Community visitors play an active and important role in drawing matters to the attention of the Government. I have previously described them as my eyes and ears. They report to me via the Community Services Commission. I am sure Mr West regards community visitors as a valuable resource. Any recommendations contained in the report of the Audit Office and designed to improve the performance of community visitors will be seriously considered by the Government and, wherever appropriate, will be implemented. Clearly, it would be appropriate to improve the performance of community visitors, wherever possible. The Opposition should be aware that the community visitors scheme is working well, but if it can be made to work better the Government will do that.

The Hon. PATRICIA FORSYTHE: I ask a supplementary question. In view of the fact that neither the Minister nor the department responded to the Audit Office report in the time frame requested, will the Minister now write to the Audit Office to explain that it got it wrong and that the community visitors scheme is apparently working well?

The Hon. R. D. DYER: I will not be verballed or have words put into my mouth. I have not said that the Audit Office got it wrong. I am saying that the recommendations will be considered in a careful way.

The Hon. Virginia Chadwick: That is not what you just said.

The Hon. R. D. DYER: It is what I just said.

The Hon. Patricia Forsythe: You said it was working well.

The Hon. R. D. DYER: Even a system that works well can work even better. If the Audit Office report has recommendations to make the system work better, they will be implemented.

The Hon. PATRICIA FORSYTHE: My question without notice is directed to the Minister for Community Services, Minister for Aged Services, and Minister for Disability Services. Will a boarding house at Summer Hill close next week
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because of its licensee’s inability to meet the staffing level set by the Ageing and Disability Department? Where will its residents be located? Can the Minister guarantee that they will not be placed in a departmental institution? Can the Minister guarantee also that his department is working with other government departments or non-government agencies to develop a strategy for the appropriate housing of these people?

The Hon. R. D. DYER: The Ageing and Disability Department is the regulator of boarding houses. Its obligation is to maintain reasonable and decent standards within those facilities, which are licensed by the department. Unlike the previous Government, the department’s licensing team does a conscientious job monitoring the services. If I were not to adequately monitor those services and, for example, a fire broke out, the first to complain would be the Hon. Patricia Forsythe.

The Hon. Dr B. P. V. Pezzutti: One did break out and what did you do about it?

The Hon. R. D. DYER: One did break out at Dungog when the Hon. Jim Longley was Minister and 12 people lost their lives. The Opposition ought to be ashamed of that fact.

The Hon. Dr B. P. V. Pezzutti: What have you done about it?

The Hon. R. D. DYER: What I have done about it is to enforce the licensing standards.

[Interruption]

The PRESIDENT: Order! Members will cease interjecting so that the Minister may answer the question.

The Hon. R. D. DYER: Whenever a boarding house closes, procedures have been in place for consultation to occur between the relevant departments - the Department of Health, the Ageing and Disability Department, the Department of Community Services and the Department of Housing. In every case people have been placed in suitable alternative accommodation.

The Hon. R. S. L. JONES: I ask the Attorney General, representing the Minister for the Environment, a question without notice. Is the Minister aware that there have been reports about more shootings at the Sunnybrook Fish Farm, which is near Grafton, run by Australian Native Fish Pty Ltd, even though it has been denied a licence by the National Parks and Wildlife Service? In view of the appalling record of this company with regard to the illegal killing of cormorants and other birds, will the Minister ask the National Parks and Wildlife Service to monitor this notorious fish farm and take whatever action is necessary to protect our native birds?

The Hon. J. W. SHAW: I shall refer the honourable member’s question to the Minister for the Environment for a reply.

The Hon. M. R. EGAN: Might I suggest that if honourable members have further questions, they wait until the House resumes in September.

The Hon. R. D. DYER: On 29 May the Hon. M. R. Kersten asked a question concerning Discovery 2000. The Minister for Mineral Resources has provided the following answer:

1. The reduction in the overall Discovery 2000 budget has been reduced from $40 million to $35 million, not from $45 million to $35 million, as stated in the question.

2. This reduction was made in the context of the Government’s fiscal management strategy to ensure a balanced budget, as endorsed by the Parliament through the passage of the Fiscal Responsibility Act, 1996.

3. The Government’s commitment to the Discovery 2000 program has been endorsed in recent weeks by public statements from the Premier, Treasurer, and the Minister for Mineral Resources confirming that overall funding for the program will remain at $35 million.

The Hon. R. D. DYER: On 18 June the Hon. Patricia Forsythe asked me a question concerning ageing and disability funding. I provide the following answer:

I am advised that the community services grants program includes a sub-program relating to community care projects for older people. The sub-program was formerly administered by the Department of Community Services, however with the transfer of responsibility between the two departments, the responsibility for the administration of this sub-program became the responsibility of the Ageing and Disability Department.

An administrative extension to the period of the existing agreements between the Ageing and Disability Department and these organisations has been provided to 30 September 1997. This extension has been granted to all organisations funded under the grants program administered by the Ageing and Disability Department.

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All organisations funded under the community care sub-program were advised in early May of the extended period for current funding agreements.

Agreements for the 1997/98 financial year will be issued to organisations in mid-July 1997 which will give more than sufficient time for their implementation by 30 September. Funding to organisations will continue unimpeded during this period of extension.

The Hon. R. D. DYER: On 19 June the Hon. D. F. Moppett asked me a question concerning the Keith Logan Centre supported accommodation places. I provide the following answer:

I am advised there are currently two consumers residing at the Keith Logan Centre, Dubbo and the following arrangements for their future care are currently being pursued.

One consumer’s case is currently before the Department of Community Services’ Orana Far West Area Placement Committee for consideration of placement.

The other consumer’s placement is being negotiated with a local funded service.

Dubbo community services staff are actively working with both consumers and all relevant agencies, in negotiating both placements.

The Hon. R. D. DYER: On 20 June the Hon. Patricia Forsythe asked me a question concerning the Parkes office of the Department of Community Services. I provide the following answer:

I was asked a question in the House by the Hon. Patricia Forsythe on 20 June 1997, in relation to the closure of the Department of Community Services’ Parkes Community Services Centre on Wednesday, 18 June 1997.

I am advised that the office door was in fact shut and that a notice indicated this was due to illness.

A telephone contact number was provided and the office had ensured it was able to cope with any emergency matters.

All telephone contact with the office was conducted as per normal by the senior staff working inside, including the assistance manager.

The Minister has directed the deputy director general (operations) to ensure that situation does not recur as he does not consider it a satisfactory way of conducting business.

The Hon. R. D. DYER: On 24 June the Hon. A. G. Corbett asked me a question concerning the interagency school community centres pilot. I provide the following answer:

I would like to advise the honourable member that funding for the interagency school community centres pilot project will be continued through to the end of 1997.

This will enable the relevant departments to consider the final evaluation report in detail. As the honourable member has already been advised the original funding allocation included $20,000 for a final evaluation of the pilot project.

Meetings have been scheduled between relevant directors and chief executive officers from the departments of school education, health and community services over the next two months.

These meetings will evaluate both the efficacy of the project and future funding options.

The Hon. J. W. SHAW: Yesterday the Leader of the Opposition asked me a question without notice about alleged delays in the sentencing of Mr Daryl Lewis. My department has provided me with advice on this matter and the situation is considerably more complex than was suggested in the question asked yesterday. The question indicated that Daryl Lewis had been held in custody for six months awaiting sentence on two charges of solicit to murder. However, as my department advises, between 27 November 1996 and 2 May 1997 Mr Lewis was also awaiting sentence on more than 30 other extremely serious charges. For various reasons I am unable to reveal the nature of those charges to the House, although I emphasise that they are extremely serious. I will provide the details of those charges to the Leader of the Opposition in confidence if he so desires.

On 2 May Mr Lewis changed his plea in relation to those serious charges to a plea of not guilty. He had been refused bail on those serious charges, which must be dealt with after the solicit to murder charges because of the late change of plea. Mr Lewis would therefore have been in custody all this time regardless of his plea to the solicit to murder charges because of the serious nature of the other charges and various admissions that he made. In relation to any failure to provide the police or prosecution with information, my department advises that Mr Lewis’s barrister requested information from police about an undercover operation in respect of the charges of solicit to murder, but only after 2 May, when Mr Lewis had already been in custody for five months.

Delays have also been caused by Mr Lewis’s decision to dismiss his solicitors twice. My
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department further advises me that when the matters returned to court on 1 June Mr Lewis’s barrister sought a further adjournment so that psychiatric reports could be prepared. Obviously, the case could have been expedited if those reports had been sought at an earlier date. I advise the House that Mr Lewis is due to be sentenced on 24 July 1997. The adjournment leading to the fixing of that date was at Mr Lewis’s own request and I am advised that it is now impracticable to have that date brought forward.

The Hon. J. W. SHAW: On 14 May the Hon. J. F. Ryan asked me a question regarding attempts by Mr John Whittaker to have a management order from the Guardianship Board revoked. I provide the following answer:

I can advise the Honourable member that I have recently received representations on behalf of Mr John Whittaker from Mr Chris Downy, MP, Member for Sutherland.

The Order in relation to Mr Whittaker can only be reviewed by the Guardianship Board. The administration of the Board falls within the portfolio of my colleague, the Hon. R Dyer, MLC, in his capacity as Minister for Disability Services, and the representations have been referred to Mr Dyer for his attention.

The Hon. J. W. SHAW: On 17 April Reverend the Hon. F. J. Nile asked me a question concerning Colin Fisk. I provide the following answer:

I am, of course, unable to say in response to the question whether Mr Fisk was seen departing from Tullamarine Airport for Thailand earlier this year.

I have been advised by the Senior Counsel Assisting the Royal Commission into the NSW Police Service that the Commission "ceased providing any form of financial assistance to Fisk in August 1996. No further financial assistance of any description has been supplied to Fisk since that time."

Questions without notice concluded.

Consideration resumed from an earlier hour.

Chapter 4

The Hon. A. G. CORBETT [1.06 p.m.], by leave: I move amendments 2 and 4 circulated in my name in globo:

No. 2 Page 28, clause 43. Insert after line 19:

(3) This section does not apply to an application made under the Anti-Discrimination Act 1977 for an original decision.

No. 4 Page 40, clause 56. Insert after line 18:

(3) This section does not apply to an application made under the Community Services (Complaints, Reviews and Monitoring) Act 1993 for a review of a reviewable decision made under community welfare legislation within the meaning of that Act.

These amendments are to explicitly ensure that no fee is required for the lodging of applications to the Administrative Decisions Tribunal - ADT - for either an original application under the Anti-Discrimination Act or for applications made to the tribunal for a review of a reviewable decision under the community welfare provisions of the Community Services (Complaints, Appeals and Monitoring) Act. Presently no fees are required for these applications and it may well be that the Government has no intention of introducing such fees. However, the legislation leaves it open for such fees to be required. The amendments will guarantee continuation of the present situation and any change will require reconsideration by the Parliament.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [1.07 p.m.]: The Government does not oppose the amendments. At present no costs are payable to bring an application in either the Equal Opportunities Tribunal or the Community Services Appeals Tribunal. The Government does not intend to introduce such fees as a result of the merger of those tribunals into the ADT. Therefore, I am happy to support the amendments.

Amendments agreed to.

The Hon. A. G. CORBETT [1.08 p.m.], by leave: I move amendments 3 and 5 circulated in my name in globo:

No. 3 Page 28, clause 44(1), lines 24 and 25. Omit "there are special circumstances that justify it in doing so". Insert instead "the person has provided a reasonable explanation for the delay in making the application".

No. 5 Page 40, clause 57(1), lines 23 and 24. Omit "there are special circumstances that justify it in doing so".

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Insert instead "the person has provided a reasonable explanation for the delay in making the application".

The legislation currently requires that the tribunal may only consider late applications if "there are special circumstances justified in doing so". Presently the Community Services Appeals Tribunal, under section 44 of the Community Services (Complaints, Appeals and Monitoring) Act, requires appeals to be made within 28 days of receipt of notice of the decision appealed against or within such further period as the tribunal allows. Though the Anti-Discrimination Act allows the President of the Anti-Discrimination Board to consider a complaint made out of time "on good cause being shown", an appeal made on the decision of the President of the Anti-Discrimination Board was considered last year which, in part, found that good cause should include consideration of any reasonable explanation of the delay. This is a satisfactory test for consideration of out-of-time applications and is preferred to the most stringent test of special circumstances. I commend the amendments to the Committee.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [1.09 p.m.]: The Government does not oppose the amendments.

Amendments agreed to.

Chapter as amended agreed to.

Chapter 5

The Hon. I. COHEN [1.10 p.m.], by leave: I move Greens amendments 4, 5 and 6 in globo:

No. 4 Page 33, clause 49, lines 7-9. Omit all words on those lines. Insert instead:

(1) If an administrator makes a reviewable decision, any of the following persons may apply to the administrator for a statement of reasons for the decision:

(a) any interested person,

(b) any other person whose interests are affected (or likely to be affected) by the decision.

Note. Section 67(4) enables a person whose interests are affected (or likely to be affected) by a decision to apply to be made a party to proceedings for a review of the decision instituted by an interested person.

No. 5 Page 35, clause 52(1), line 8. Omit " an interested person". Insert instead "a person".

No. 6 Page 35, clause 52(2), line 14. Omit "an interested person". Insert instead "a person".

Amendment 4 will allow any other person whose interests are affected by a reviewable decision to obtain reasons for the decision. This amendment is consistent with amendments Nos 1 and 3. If persons or organisations whose interests are affected by a decision are to be given standing, they should be permitted to obtain reasons for the decision in question. Amendments 5 and 6 are consequential amendments.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [1.11 p.m.]: These amendments are related to some earlier amendments which did not find favour with the Committee. It would seem, as a matter of logic, that these amendments also should be opposed. The Government indeed opposes them. The amendments would permit public interest organisations to request reasons for a decision but, for the reasons given previously in relation to Greens amendments Nos 1 to 3, the Government does not support provisions that would give a general right to public interest organisations to intervene in the review of an administrative decision initiated by an interested person.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [1.12 p.m.]: For the reasons outlined by the Attorney General, the Opposition also will not support these amendments.

Amendments negatived.

The Hon. I. COHEN [1.13 p.m.], by leave: I move Greens amendments 7 and 9 in globo:

No. 7 Page 45, clause 64(1), line 26. Insert "in force at the time the reviewable decision was made" after "Government policy".

No. 9 Page 45, clause 64(2), line 29. Omit "is or".

Because of the way the bill is currently drafted the Government can actually implement a policy that has the effect of nullifying or influencing a case that the tribunal is in the process of hearing. The Greens consider this unfair. The only policy that the tribunal should take into consideration is the policy in force at the time the reviewable decision was made. I commend the amendments.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [1.14 p.m.]: The Government will accept the amendments.

Amendments agreed to.

The Hon. I. COHEN [1.14 p.m.]: I move Greens amendment 8:

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No. 8 Page 45, clause 64(1), line 27. Insert "or the policy produces an unjust decision in the circumstances of the case" after "law".

Clause 63 provides that in reviewing decisions of government officials, the tribunal must decide what the correct and preferable decision is having regard to relevant and factual material before it. However, in accordance with clause 64(1) the tribunal must give effect to Government policy except to the extent that the policy is contrary to law. Evidence that a policy is government policy for those purposes is a certificate from the Premier or any other Minister, in accordance with subclauses (2) and (3) of clause 64. The Greens believe that those provisions prevent the tribunal from reviewing unjust policies and would allow a policy made at any level of government to be unreviewable. They also have the potential to be in conflict with the requirement that the tribunal reach the correct and preferable decision in the circumstances of the individual case. Clause 64 as currently drafted would enable policy to be redrafted to address a forthcoming case. I commend the amendment.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [1.16 p.m.]: The arguments put forward by the Hon. I. Cohen in relation to the amendment are supported by the coalition. It is appropriate that unjust decisions ought to be able to be reviewed. The amendment is not inconsistent with the principle pursued in the bill. The Opposition’s position is consistent with the approach it took in respect of amendment 7.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [1.17 p.m.]: In formulating the bill the Government took the view that the form of words suggested in the amendment gave too broad a discretion to the tribunal and was inappropriate. Accordingly, the Government will not accept the amendment.

Amendment agreed to.

The Hon. I. COHEN [1.18 p.m.]: I move Greens amendment 10:

No. 10 Page 46, clause 64(4), line 5. Insert "or the policy produces an unjust decision in the circumstances of the case" after "law".

My previous comments explain the amendment.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [1.19 p.m.]: The Opposition supports this amendment; it is consistent with policy that the Opposition is pursuing to allow the tribunal to deal with unjust decisions.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [1.20 p.m.]: In light of the Committee’s decision with respect to Greens amendment 8, this amendment is supported on the grounds of consistency.

Amendment agreed to.

The Hon. I. COHEN [1.21 p.m.]: I move Greens amendment 11:

No. 11 Page 46, clause 64. Insert after line 5:

(5) In this section:

Government policy means a policy adopted by:

(a) the Cabinet, or

(b) the Premier or any other Minister, that is to be applied in the exercise of discretionary powers by administrators.

The amendment simply defines the term "Government policy". In the way that the bill is currently drafted "policy" could mean virtually anything.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [1.22 p.m.]: The Opposition supports this amendment. Departments that adopt departmental policy will now be required to have those policies approved as ministerial policies if they do not want those policies to be the subject of review. That is an administratively appropriate and worthwhile development. From time to time Ministers are not aware of departmental policy.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [1.22 p.m.]: Likewise, I see the force of this amendment, which the Government does not oppose.

Amendment agreed to.

Chapter as amended agreed to.

Chapter 6

The Hon. I. COHEN [1.23 p.m.]: I move Greens amendment 12:

No. 12 Page 50, clause 71(2), lines 20 and 21. Omit "for the purpose of the presentation of oral submissions to it".

The Labor Party stated in its 1995 law and order policy summary it would establish a tribunal that would "make it simpler for people to appeal against public service decisions". It stated that it was necessary to "contain costs and avoid a tendency
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towards excessive litigation and legalism". The Minister for Police referred in his second reading speech on the bill in the other place to the report of the New South Wales Law Reform Commission entitled "Report on the Right of Appeal from an Administrative Tribunal and Officers", which stated:

Any person adversely affected by an official action should be able to question the action simply, cheaply and quickly.

It is important that the tribunal remain as affordable, accessible and informed as possible. Whilst the Greens agree that clients should be able to be represented when necessary, they are also of the opinion that the tribunal should have a discretion not to allow representation when appropriate. For instance, one party might be unable to afford representation while the other party may have a string of barristers and solicitors representing it. In these circumstances the tribunal may consider it appropriate to disallow representation so that the sides are evenly balanced and so that justice can be done.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [1.24 p.m.]: The Opposition does not support this amendment. In some instances agents may well be appointed by a concerned party and that agent should be permitted to articulate arguments. This would be relevant for people of non-English speaking background, people with disabilities and the like. I cannot believe that it would be the intention of the Hon. I. Cohen, with regard to matters that interest the environment movement, that an affected person could not appoint someone from an environment group to represent him or her without being able to articulate argument on his or her behalf. The Opposition therefore does not support the amendment.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [1.25 p.m.]: Clause 71 as presently drafted provides a discretion to the tribunal to order that parties to proceedings before it may not be represented by an agent for the purpose of the presentation of oral submissions. The deletion of words as proposed in the amendment would seem to lead to an inflexible situation that the tribunal could order that a party not be represented at all. The Government thinks it is appropriate for tribunals to consult either an agent, a lawyer or some other adviser either within or outside the tribunal relating to the preparation and presentation of a party’s case.

Generally the question of representation before this tribunal has been a vexed issue to which the Government has given a lot of thought. The Government has not acceded to all of the arguments of the legal profession to provide a general right of representation in all cases. The Government has tried to strike a balance between providing an informal flexible tribunal - which very often would not need the assistance of lawyers or, indeed, other advocates - and protecting the rights of people to be represented when appropriate. The bill strikes a reasonable balance between those competing considerations and the Government is of the opinion that the amendment would unduly interfere with that balance.

Amendment negatived.

The Hon. A. G. CORBETT [1.26 p.m.]: I move amendment 6 as circulated in my name:

No. 6 Page 69, clause 104, lines 19-23. Omit all words on those lines. Insert instead:

(1) The costs of mediation or neutral evaluation (including the costs payable to the mediator or neutral evaluator) are to be apportioned between the parties and the Tribunal in the manner prescribed by the regulations.

(2) The Tribunal is to bear all of the costs of a mediation or neutral evaluation in any proceedings concerning:

(a) an application made under the Anti-Discrimination Act 1977 for an original decision, or

(b) an application made under the Community Services (Complaints, Reviews and Monitoring) Act 1993 for a review of a reviewable decision made under community welfare legislation within the meaning of that Act.

Clause 104 provides that the costs of mediation or neutral evaluation are to be borne by the parties to the proceedings. I have received representations from a number of community organisations to the effect that an applicant for administrative review under community welfare legislation or anti-discrimination legislation should not be required to bear the costs of the mediation or neutral evaluation. Their concern is that while mediation may be a preferred option and should be encouraged, it is unfair to require an apportionment of costs to the applicant when the applicant can have a decision made by the tribunal without charge.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [1.27 p.m.]: The Government does not accept the amendment, which would remove from the tribunal the discretion to order the payment of the costs of mediation by the parties and instead require the regulation to
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establish the manner in which the costs of mediation are to be met. The Government believes that the costs of mediation must be determined by the tribunal having regard to the circumstances of the case and the conduct of the parties in matters before it.

In the Government’s view it would not be appropriate to apply a regulatory proscription, for example, in circumstances in which the tribunal is of the view that an agency has been at fault in dealing with an application but also believes that mediation is a proper way to deal with the matter. In such circumstances the tribunal may determine that it is appropriate for the agency to meet the full costs of the mediation.

The second part of the amendment to provide for no costs for mediation in matters involving applications under the Anti-Discrimination Act or Community Services (Complaints, Review and Monitoring) Act is also opposed. The proposal misunderstands the role of the Administrative Decisions Tribunal in such matters. In both cases mediation is a method used by the Anti-Discrimination Board and the Community Services Commission prior to matters going to the tribunal. It will not, as I understand it, be used in these matters once it has reached the tribunal.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [1.30 p.m.]: I do not necessarily like clause 104 of the Administrative Decisions Tribunal Bill, but I like it more than I do the amendment moved by the Hon. A. G. Corbett. Effectively, the Government is attempting to implement a mechanism to deal with costs which, in this area, is new. We would have to give it a trial period. Costs for mutual evaluations will now be resolved as part of the mediation process. With the experience I have of mediation I do not believe that that is the way to go. I would have preferred it if matters such as this were agreed upon before embarking upon mediation or evaluation. However, one of the things that I have learned about this area of the law is that it is always evolving. We have to be prepared to suck it and see, and I have a feeling that this one might be a little bitter. I place on record my concerns about this matter. The Government wants to implement a mechanism to deal with costs before embarking upon mediation so that parties involved in a dispute might try to resolve the matter or seek an outcome. I do not oppose the Government’s proposal.

Amendment negatived.

Chapter agreed to.

Chapter 7

The Hon. J. P. HANNAFORD (Leader of the Opposition) [1.32 p.m.]: I move Opposition amendment 2:

No. 2 Page 73, clause 112(2). Insert after line 17:

(b) an order of the Tribunal under section 71(2) that the parties to proceedings before it may not be represented by an agent of a particular class, or

The purpose of this amendment is to provide a mechanism so that parties who feel that they have been disadvantaged by a decision which precludes their agent from being present at an appeal can have the matter reviewed.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [1.33 p.m.]: Clause 112(1) of the Administrative Decisions Tribunal Bill, which sets out which decisions are appealable to the appeal panel of the Administrative Decisions Tribunal, already includes parties to proceedings before the tribunal who are not represented by an agent. The Government took the view that that would be a decision made by the tribunal at its proceedings. The amendment sets out the matter more explicitly. The Government does not oppose the amendment.

Amendment agreed to.

Chapter as amended agreed to.

Chapter 8

The Hon. ELISABETH KIRKBY [1.34 p.m.]: I move the Australian Democrats amendment as circulated:

Page 91. Insert after line 2:

146 Parliamentary inquiry to report on Tribunal

(1) A Parliamentary inquiry is to be held into the jurisdiction and operation of the Tribunal:

(a) by a joint committee of the Legislative Council and Legislative Assembly to be established for the purpose, or

(b) by an existing such joint committee to which the matter is referred by resolution of the Legislative Council and Legislative Assembly.

(2) A report by the joint committee of the results of the inquiry is to be tabled in the Legislative Council and Legislative Assembly as soon as is

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practicable after the end of the period of 18 months from the establishment of the Tribunal.

As I said in debate on the second reading,it is proper for the Administrative Decisions Tribunal to be oversighted by a parliamentary committee in the same way as a parliamentary committee oversights the Health Care Complaints Commission, the Ombudsman and the Police Integrity Commission.

The CHAIRMAN: Order! It is unacceptable for members to use mobile phones. I ask the member who is doing so to desist and remind honourable members of previous rulings regarding the use of mobile phones in the Chamber.

The Hon. ELISABETH KIRKBY: This amendment, which I believe is proper, has a precedent. If there are anomalies in the Act and the tribunal is not operating in the way in which both the Government and the Opposition hoped that it would, a parliamentary committee can oversight the operations of the tribunal and look after any teething problems that it might have. I ask honourable members to support my amendment.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [1.36 p.m.]: The Government accepts the amendment moved by the Australian Democrats. It seems to us to be preferable to the sunset clause proposed by the Opposition, which I think would place a question mark over the tribunal and its future life and would lead to a lack of confidence in the tribunal or a lack of legitimacy. It is preferable for the Parliament to establish the tribunal and to set up a parliamentary inquiry, which is what the honourable member is suggesting, rather than have the cut-off date put forward in the alternative proposition.

Amendment agreed to.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [1.37 p.m.]: I move Opposition amendment 3:

No. 3 Page 91, clause 146, lines 3-11. Omit all words on those lines. Insert instead:

146 Act ceases to be in force after 5 years

This Act ceases to be in force at the end of 5 years after the date of assent to this Act.

This amendment, which is self-explanatory, provides for the inclusion in the legislation of a sunset clause. I outlined the reasons for this amendment in debate on the second reading. I do not believe that I need to repeat my arguments.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [1.38 p.m.]: The Government opposes this amendment for the reasons already given.

Amendment negatived.

Chapter as amended agreed to.

Schedule 2

The Hon. A. G. CORBETT [1.39 p.m.], by leave: I move A Better Future for our Children amendments 7, 8, 9 and 10 in globo:

No. 7 Page 93, Schedule 2, Part 1, clause 1(2), lines 12-16. Omit all words on those lines. Insert instead:

(2) A member is not to be assigned to the Division (or appointed as Divisional Head) unless the Minister has recommended the member’s assignment to the Division (or appointment as Divisional Head) to the President (or Governor).

No. 8 Page 93, Schedule 2, Part 1, clause 1(3), line 17. Omit "relevant".

No. 9 Page 93, Schedule 2, Part 1, clause 1(3), line 18. Omit "relevant".

No. 10 Page 93, Schedule 2, Part 1, clause 1(4), line 27. Omit all words on that line.

These amendments provide that, in appointing tribunal members, the Minister responsible for the appointments - who in all likelihood will be the Attorney General - is not required to act on the recommendation of the relevant Minister. It is unsatisfactory that a Minister whose substantive decisions may be subject to review by the Administrative Decisions Tribunal is responsible for recommending the members of the very same tribunal. These amendments will remove references to the requirement for the Minister to consider the recommendation of the relevant Minister and all other references in these provisions to the relevant Minister. The independence of the tribunal, which must be established from the outset, must be maintained and defended. These amendments will assist in establishing and safeguarding that independence.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [1.40 p.m.]: The Government does not accept these amendments. The effect of them would be to remove the role of the Minister for Community Services in the appointment of members to the community services division of the tribunal. The Government takes the view that the merger of existing tribunals into the
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Administrative Decisions Tribunal is intended to achieve a number of benefits, which I have already mentioned. However, in bringing other tribunals into the ADT, and in continuing the requirement that expert and community members be appointed as members of the tribunal, the Government believes that it is both necessary and proper that the Minister who has responsibility for the legislation under which applications to the tribunal are brought continues to have a role in the appointment of those expert and community members. The Opposition has taken the view that the Minister for Community Services has the closest contact with people who are affected by decisions of agencies and who may be applicants to the tribunal. The Minister for Community Services is in a position to ensure that community members who are nominated to be appointed to the tribunal for these purposes have the required skills and experience.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [1.41 p.m.]: For the reasons outlined by the Attorney General, and Minister for Industrial Relations the Opposition does not support these amendments.

Amendments negatived.

Schedule agreed to.

Schedule 3

The Hon. J. P. HANNAFORD (Leader of the Opposition) [1.41 p.m.], by leave: I move Opposition amendments 4, 5, 6 and 7 in globo:

No. 4 Page 102, Schedule 3, clause 2, lines 19-20. Omit the words "for such period as is specified in the instrument of appointment". Insert instead "for a period of 3 years".

No. 5 Page 103, Schedule 3, clause 3, line 3. Omit ", and".

No. 6 Page 103, Schedule 3, clause 3, lines 4 and 5. Omit all words on those lines.

No. 7 Page 104, Schedule 3, clause 7, lines 21 and 22. Omit all words on those lines. Insert instead:

(c) completes a term of office and is not re-appointed, or

The purpose of the amendments is to make it clear that the term of appointment of a tribunal member will not be such period as may be specified in the instrument, as specified in clause 2 of schedule 3, but will be a period not exceeding three years. I make it clear that Opposition amendment 4 as circulated should read:

No. 4 Page 102, Schedule 3, clause 2, lines 19-20. Omit the words "for such period as is specified in the instrument of appointment". Insert instead the words "for a period not exceeding three years".

Effectively, the amendment would ensure that there be an instrument of appointment but that the instrument of appointment would provide for an appointment period of up to three years. Therefore, the amendment would provide that when the member completes his term of office there would not be a further appointment. For the reasons outlined in the second reading speech, the Opposition believes that this is a desirable direction in which to go.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [1.43 p.m.]: When drafting the bill the Government took the view that more flexibility on the issue of appointment than is contemplated by Opposition amendment 4 is desirable. However, given the clarification of the amendment to the effect that appointees could hold office for a period of less than three years, the Government does not oppose the amendments.

Amendments agreed to.

Schedule as amended agreed to.

The CHAIRMAN: The Committee will now consider the Administrative Decisions Legislation Amendment bill.

Schedule 1

The Hon. A. G. CORBETT [1.45 p.m.], by leave: I move amendments Nos 1 and 2 standing in my name in globo:

No. 1 Page 15, Schedule 1.6[7], line 1. Omit "in relation to". Insert instead "directly or significantly affecting".

No. 2 Page 15, Schedule 1.6[7], line 4. Omit "in relation to". Insert instead "directly or significantly affecting".

I have received representations that the appointment of a guardian ad litem or the order of separate representation should be made for persons who are directly or significantly affected by the administrative decision before the tribunal. This would replace the current test, which provides that an appointment or order can only be made if the proceedings are in relation to the affected person. I believe that the broader test is more desirable, and I have moved these amendments to give effect to that test.

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The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [1.47 p.m.]: The Government does not oppose the amendments.

Amendments agreed to.

Schedule as amended agreed to.

Bills reported from Committee with amendments and passed through remaining stages.

The Hon. R. D. DYER (Minister for Community Services, Minister for Aged Services, and Minister for Disability Services) [1.52 p.m.]: I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

Mr President, the Registered Clubs and Liquor Legislation Amendment Bill 1997 provides for important reforms for the conduct of elections for directors of registered clubs, and also for several general matters of a statute law nature under the Registered Clubs Act and the Liquor Act.

The electoral reforms contained in this bill will represent significant enhancements to the club election process and accordingly provide considerable benefit to clubs and, most importantly, their membership.

The three key elements of the election-related reforms provide for new provisions introducing:

•biennial club elections;

•proxy voting where a registered club is also a registered racing club; and

•provision for closer controls over club election procedures.

I will deal with each of these matters in turn.

Biennial club elections

Mr President, item [1] of schedule 1 of this bill provides for a new option for a registered club to conduct elections for the directors of the club biennially, thereby permitting club directors to be elected for two year terms.

However, I should emphasise that this will only apply if the members of the club specifically adopt such a rule in their articles of association.

The biennial elections option will be available to clubs in addition to the existing options of annual elections - where directors hold terms of office for twelve months - and elections conducted under the "triennial rule" - which involves one-third of club directors facing election each year with individual directors holding office for three year terms.

Mr President, the new biennial elections option contained in this bill will provide clubs and their membership with the ability to ensure a greater degree of stability on clubs’ boards of management.

If adopted by the membership of individual clubs, it will enable longer term club objectives to be pursued without the additional costs and time associated with the conduct of elections each and every year. This is important to assist in the development of registered clubs as they seek to better secure their futures and their place in their communities.

Mr President, this reform - which was an initiative of the club industry advisory council - heralds a new era for the internal governance of clubs in this State.

I offer my congratulations to the club industry advisory council, the club industry’s premier consultative council, for bringing forward this very worthwhile improvement to the legislation.

Proxy voting

Item [2] of schedule 1 of this bill provides for proxy voting in elections conducted by registered clubs which are also registered racing clubs.

A registered racing club is one which a controlling body for a code of racing - for instance, the A.J.C. Principal club, or Harness Racing New South Wales, or the Greyhound Racing Authority - has registered for that purpose.

Such clubs have a longstanding practice, under the Corporations Law, of using proxy voting in their elections for their governing bodies.

However, registered racing clubs which subsequently obtain registration under the Registered Clubs Act 1976 are prohibited under that Act from using proxy voting.

A case in point is the Harness Racing Club of New South Wales which recently obtained registration as a registered club. By doing so, it inadvertently became ineligible to continue its practice of using proxy voting at its elections, and thereby ensure that its governing body was best placed to be fully representative of its geographically dispersed membership.

This alteration to the Registered Clubs Act in the case of registered clubs which are also racing clubs will overcome that anomaly.

I should make it clear, however, that it is not intended to amend the legislation beyond this narrow exception to extend proxy voting to conventional registered clubs.

Thus, the bill amends the law only in respect of registered clubs which are also registered racing clubs. This limited arrangement is supported by the club industry.

Club election procedures

The third election-related limb of this bill - that is, item [3] of schedule 1 - deals with club election matters by including a

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power in the Registered Clubs Act enabling regulations to be made with respect to the conduct of elections of directors of registered clubs.

It is envisaged that the regulations to be made under this provision will put in place a standard and common core of procedures for the conduct of elections within registered clubs.

Mr President, this regulation-making power recognises that election procedures need to ensure that the wishes of the membership of registered clubs are translated into the election of a representative governing body.

At present the legislation offers no real guidance on these matters. This has led to - sometimes inadvertent and sometimes wilful - electoral abuses. The general indications are that a small, but moderately increasing, number of complaints are being made about aspects of the conduct of club elections.

The regulation-making power will enable the making of regulations concerning procedural and other matters relevant to club elections such as the conduct of the ballot and the counting of votes.

I can assure the Parliament that this Government will not be rushing into the development of controls over these matters. Any such regulations which are ultimately put in place will only occur following full consultation with the club industry and the Electoral Commissioner. In this regard, I would like to acknowledge the assistance of State Electoral Commissioner and his staff in providing general advice on these matters.

Miscellaneous matters

Mr President, the bill also provides for a number of miscellaneous amendments - primarily of a clarifying nature - to both the liquor and registered clubs Acts. They are largely intended to address past anomalies and to ensure the smoother operation of the regulatory framework.

The amendments provide for:

•specially authorised persons, such as gaming machine technicians, to reseal sensitive parts of gaming machines when such seals have broken;

•technicians, in a limited range of circumstances, to temporarily remove compliance plates from gaming machines;

•the removal of doubt about the capacity of clubs and hotels to offer otherwise lawful gaming and wagering activities;

•the removal of doubt about the gaming machine duty payment liability of hoteliers in the event of a transfer of a licence shortly after the conclusion of an instalment period;

•a minor amendment to technician licensing terminology in the Liquor Act;

•the clarification of gaming room requirements where hoteliers are authorised to install more than 10 gaming machines;

•removal of anomalies in provisions in the Liquor Act relating to the trading capabilities of nightclub licensees on New Year’s Eve; and

•recasting of the defence provisions for secretaries of registered clubs in limited circumstances.

Conclusion

Mr President, I am pleased to have been able to advance the cause of the club movement of this State by bringing these important reforms regarding club elections before the Parliament.

Not only do I believe these reforms to be essential and to reduce costs to clubs, they also mark the responsibility, maturity and willingness of clubs to strive for standards of excellence.

By coupling best practice electoral procedures with sound management practices, the members of registered clubs can look forward to a strong and healthy club movement for many years to come.

Lastly, I wish to reiterate my appreciation of the Club Industry Advisory Council, and the Electoral Commissioner, for the sound advice they have provided in the formulation of these proposals.

I commend this bill to the House.

The Hon. R. T. M. BULL (Deputy Leader of the Opposition) [1.52 p.m.]: The Opposition supports this bill, which provides for biennial elections in addition to annual and triennial elections for directors of registered clubs. This will be a cost saving for clubs. It will add stability to club boards and enable them to pursue longer-term objectives without disruptions. This bill further provides for proxy voting when a registered club is also a registered racing club. Honourable members may be aware that there is a problem with the New South Wales Harness Racing Club at Harold Park. This bill introduces a regulation-making power for the conduct of elections by registered clubs. I will not detail the other minor amendments because the Opposition fully supports this bill.

Reverend the Hon. F. J. NILE [1.54 p.m.]: Call to Australia supports this bill, which provides for certain administrative changes to the Registered Clubs Act 1976 and the Liquor Act 1982 to enable members of the governing bodies of registered clubs, that is, the directors, to be elected for two-year terms as an alternative to the current rules, which provide for annual or triennial elections. This bill further provides for proxy voting and deals with a number of other administrative matters. Persons will be authorised to gain access to sensitive areas, for example, the computer cabinet of a gambling machine to replace any seal that is broken while gaining such access. Undoubtedly, poker machines and other gambling machines in clubs must be strictly supervised to prevent any manipulation of them. In the past it has been possible - and this has occurred - for people with mechanical skills to fix a
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poker machine so that it pays out a large amount of money before the club has realised that the machine has been manipulated to ensure that the jackpot is paid out. People working in the club industry are tempted to change the operation of a machine so that a third party playing the machine will win the jackpot. As this bill does not extend gambling in any way - it is a machinery bill - Call to Australia supports it.

The Hon. R. D. DYER (Minister for Community Services, Minister for Aged Services, and Minister for Disability Services) [1.56 p.m.], in reply: I thank honourable members for their contributions to debate and for their support of the bill. I commend this measure to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages.

Consideration of the Legislative Assembly’s amendments.

No. 1 Page 3, Schedule 1[1] (proposed section 31(3)(a)), lines 23–27. Omit all words on those lines. Insert instead:

(a) The Minister is to make arrangements for inspectors to set up places at or near the border of New South Wales and Queensland at which machines may be produced for inspection (being places set up on a regular basis or by special arrangement with a person bringing a machine into New South Wales). The machine is to be brought into New South Wales at that place and produced to an inspector without delay.

No. 2 Page 4, Schedule 1[1] (proposed section 31(3)(c) and (d)), lines 1–11. Omit all words on those lines. Insert instead:

(c) An inspector at that place must inspect the machine.

(d) Following that inspection, the inspector is to sign a copy of the declaration and return it to the person in charge of the machine, unless the inspector is not satisfied that the machine has been cleaned as required by the regulations.

(e) If the inspector is not satisfied that the machine has been cleaned as required by the regulations, the machine is not to be moved anywhere in New South Wales, without the approval of an inspector, until the inspector is so satisfied and has signed a copy of a declaration (referred to in paragraph (b)) lodged with the inspector. Until the inspector is so satisfied, the inspector may only approve of the movement of the machine to an appropriate place to be cleaned or for its return to Queensland.

No. 3 Page 4, Schedule 1[1] (proposed section 31(6)(a)), lines 28–30. Omit all words on those lines.

The Hon. R. D. DYER (Minister for Community Services, Minister for Aged Services, and Minister for Disability Services) [1.58 p.m.]: I move:

That the Committee does not insist on its amendments Nos 1 to 7 disagreed to by the Legislative Assembly and agrees to the Legislative Assembly’s amendments Nos 1 to 3.

The Hon. R. T. M. BULL (Deputy Leader of the Opposition) [1.59 p.m.]: The Opposition supports these amendments. Headers must be brought into New South Wales for inspection as the inspection stations are located in New South Wales. That was a problem with the previous amendments agreed to by the Legislative Council. The Opposition supports these amendments, which will facilitate the inspection of machines for noxious weeds.

The Hon. ELISABETH KIRKBY [2.00 p.m.]: The Australian Democrats also support the amendments. I am delighted that the Minister for Agriculture saw fit to consider the problems of bringing agricultural machinery, particularly from Queensland, into New South Wales and establishing the inspection stations. I just wish he had gone one step further and provided that the Government look after noxious weeds on Crown land. One sees along State Rail sidings any number of noxious weeds - lantana, blackberry, camphor laurel, crofton weed - growing vigorously and spreading from State Rail land. The weeds are spread further afield by birds and by the wind, undermining the countless hours and millions of dollars spent by bush regenerators, Greening Australia and local citizens. In supporting this bill I ask the Government to clean up weeds on State Rail land. Possibly some of the young unemployed could be trained as professional bush regenerators, creating more jobs. It is pointless for land-holders to be prosecuted for noxious weeds growing on private property when the Government allows noxious weeds to grow on Crown land.

The Hon. R. S. L. JONES [2.01 p.m.]: The amendment proposed to the amendment I moved is satisfactory. It ensures that grain headers will still be examined. Previously in the debate I mentioned that it was possible that parthenium weed had medicinal
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purposes. Someone who was in the gallery when I made my contribution subsequently faxed me information obtained from the Internet showing that parthenium weed boosts the immune system. Following my own search on the Internet I found that someone in Canada supplies parthenium weed as a herb and I sent for an order. I now take parthenium daily as an immune booster.

The Hon. Dr B. P. V. Pezzutti: Is it good?

The Hon. R. S. L. JONES: I have not had a cold or the ‘flu since. The Hon. Elisabeth Kirkby spoke of camphor laurel as being a noxious weed. It is not a noxious weed; it is a valuable tree up our way, where it provides habitat for several species and is also used by timber workers. It is to be hoped that camphor laurel never is a noxious weed. Camphor laurel is, nevertheless, removed when it is in competition with native rainforest trees. In our region we are grateful that camphor laurel was planted many years ago, because it has provided shelter and habitat for several species which would otherwise be more endangered than they are.

Motion agreed to.

Legislative Assembly amendments agreed to.

Resolution reported from Committee and report adopted.

Message forwarded to the Legislative Assembly advising it of the resolution.

The Hon. R. D. DYER (Minister for Community Services, Minister for Aged Services, and Minister for Disability Services) [2.05 p.m.]: I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

I am pleased to introduce a Bill for an Act to amend the New South Wales Cancer Council Act of 1995.

The Cancer Council was established over 40 years ago with the passage of the then New South Wales State Cancer Council Act 1955. That Act was amended by the New South Wales Cancer Council Act 1995, which had as one of its principal objects, the reconstitution of the Board of the Cancer Council to reflect the Cancer Council’s community base.

I would like to remind the House that the proposal to vary the composition of the Board was initiated by the Cancer Council itself and adopted by the previous Government. The 1995 Act was passed with bipartisan support.

However not long after the commencement of the 1995 Act, problems arose in implementing its objects. This Government has sought to expedite the resolution of these problems through the amendments before the House.

The Bill before you retains the principle of representing on the Board, the constituents of the Cancer Council, namely patients and carers, health care professionals and scientists. The proposed composition of the Board also provides for the involvement of persons drawn from the spectrum of expertise to be found in business, finance and the law, which expertise is needed for the effective administration of an important community organisation. The expertise and special knowledge of Cancer Council staff is recognised through the inclusion on the Board of an elected staff member.

The proposed amendments were developed in consultation with a wide range of community and professional groups and individuals, including cancer patient carers and the staff of the Cancer Council. The perspectives of both groups are represented in the composition of the Board.

In considering this Bill, I would like you to take account of the very important role of the Cancer Council in New South Wales. The Cancer Council provides information to the public and supports education for health professionals who care for cancer patients. It supports the work of outstanding clinicians and researchers. It also provides direct support for cancer patients and their families, by ensuring, for example, that patients in country areas have personal transport from their homes to treatment facilities.

To achieve its objectives, the Cancer Council works in partnership with professional societies, research groups, universities, and patient support groups. It also works through harnessing the goodwill and generosity of the people of New South Wales. The strength of the Cancer Council is enhanced by its affiliated community-based Cancer Action Groups and Special Interest Groups. Volunteers in these groups give time, money and expertise to amplify the efforts of the Cancer Council - and the whole health system - in cancer related education, health promotion, information distribution, and fundraising.

The major part of the Cancer Council’s funding comes from donations large and small, given generously by the people of New South Wales. These donations attest to the importance of the Cancer Council and its activities for everyone in this State.

The New South Wales Cancer Council is truly a unique and vital organisation in the society of this State. It is a resource of the people of New South Wales, and must be managed with a collective wisdom, arising from the participation on its Board of experts in cancer and other fields and community representatives.

The Board described in the Bill is a relatively large one, comprising 14 part-time members and the chief executive officer of the Council. However its size is a strength, because it embraces a broad range of expertise and community interest. The Bill signals a greater involvement of the health care and scientific communities in the directions of the Cancer Council.

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The timely passage of this Bill will ensure that the work of the Cancer Council can proceed without impediment. The new Board will help to ensure that the Cancer Council has a bright future, meets the needs and wishes of the people of New South Wales, and has their full confidence. I commend the Bill to the House.

The Hon. Dr B. P. V. PEZZUTTI [2.05 p.m.]: I strongly support the changes made to the New South Wales Cancer Council Act by this bill. It is worth the House taking a little time to consider the history of the bill.

Reverend the Hon. F. J. Nile: There isn’t a lot of time.

The Hon. Dr B. P. V. PEZZUTTI: I understand that perfectly well, but, especially given that honourable members were able to spend 1½ hours in Committee on the previous legislation, I consider that we should be able to spend at least 10 minutes on this bill. I go back to the second reading speech made by the Minister in 1995 for the legislation that is now being amended. At that time the Minister said that the Cancer Council was an independent statutory corporation run as a non-profit charitable institution. He came unstuck, however, when he said that until 1995 the Act had retained a medico-scientific bias in both its objectives and its management structure until it had become anachronistic to the point of hindering the proper operation and current purposes of the organisation. He said that he was rectifying the situation by repealing the previous Act.

Surely there must be a word such as "derectification" or "rerectification", because this move by the Minister makes me belong to the anti-disrectification committee, and I will fight the Minister all the way on a number of other issues. The Minister said that it was anachronistic to have a medico-scientific organisation, but that is what the people wanted - that is what they put their money into. In 1995 the Minister for Health became the person responsible for recommendations and acceptance of appointments. The Minister said that the main aim of the amended New South Wales Cancer Council Act, which the Parliament is now changing, was to allow the Cancer Council to manage some projects. That is perfectly true; that is something the previous Government was planning to do.

As the Minister said in 1995, the previous Government would have amended the New South Wales Cancer Council Act had it won the most recent election. However, there is a vast difference in what the present Government and the previous Government had in mind for the Cancer Council board. The coalition considered that there would be bipartisan support for legislation governing an important organisation in this State. The coalition had a bill on the books in 1995, but it was subsumed and the Parliament enacted the legislation of the present Minister for Health, which he is now amending. The previous Government had planned to appoint a committee made up of a vice-chancellor, the New South Wales Bar Association, the New South Wales Division of the Australian Institute of Company Directors, the President of the Clinical Oncological Society of Australia, the President of the New South Wales Chamber of Commerce and others.

That committee was to nominate to the Governor people who should be appointed to the Cancer Council. Appointments to this organisation, which is for the people of New South Wales, would be at arm’s length from the Minister for Health. The Parliament is now coming back to that proposal. The previous Government was concerned that the best people available serve on the board. The experts in their field should judge whether a person is suitable for appointment to the board. That was the proposal of the previous Government, but the present Minister for Health made the change to the awful situation that the Parliament now has to amend. The Hon. Elisabeth Kirkby made four important points during her speech on the old bill. She said:

. . . certain members of the medical profession may be concerned about the proposed change to the council, particularly as the emphasis now appears to be away from medical research.

How right they were, which is why we are now dealing with this legislation. The Hon. Elisabeth Kirkby was concerned that only one doctor was to be appointed to the board of the Cancer Council. How right she was, but nine members of the medical profession will be appointed to the new board. She also said:

I am certain that the public will want proper representation from the medical profession on the board of the New South Wales Cancer Council. I am advised that the current New South Wales Cancer Council supports this bill . . .

And they did. What else could they do? The honourable member made another important statement. She said:

Substantial donations of money have been made by the public on the basis of real or perceived medical-scientific bias within the council, and in the belief that a donation was a contribution to cancer research in the broad sense of that term.

She was concerned about that issue. She also said:

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For many years I have been supporting the New South Wales Cancer Council by a yearly donation. Quite frankly, I thought all of that money was going into cancer research. I will not continue my donation if I discover that the money is not going into cancer research but into an administrative organisation which will employ a fund-raiser to raise money for the New South Wales Cancer Council.

The honourable member noted that she was part of a parliamentary team that was raising money for cancer research. I was proud to be the token male on that committee, which met again today.

The Hon. B. H. Vaughan: Were you there?

The Hon. Dr B. P. V. PEZZUTTI: No, I was not able to attend. The Hon. Jennifer Gardiner and Beryl Evans, a former member of the Legislative Council, today donated $10,000 to the Westmead breast screening program. The Hon. Elaine Nile made an important point in her contribution. She assumed that women would be appointed on merit, but she was very concerned about that. She said:

The consumer representative should be chosen by the Cancer Council because it is aware of the most appropriate people for appointment. The board should not be politicised.

The honourable member quoted the Minister on that issue and said that he was going to rectify the failings of the old board. In his rectification he almost killed it. The Minister in fact politicised the board, and it is perfectly clear how he did it: he simply called up his mates and asked if they wanted to be appointed to the board. In an important, major article headed "Sickening politics of cancer" in the Australian, journalist Miranda Devine pointed out that Professor Saltman was a friend of the Minister, that many members of the board were from the Australian Labor Party, including Wayne Burns, who is the press secretary of former Federal Labor Minister Dawkins, the future ALP candidate of the inner Sydney electorate of Bligh, and the convener of the first gay and lesbian credit union.

Janelle Saffin, a left-wing Labor MLC, was also a member, and I thought she probably did a good job representing country women. Ian Robertson, Secretary of the Environmental Health and Building Surveyors Association, was another Refshauge appointee. The board’s first decision was to cancel the advisory committee on medical research. Professor Saltman wrote an article at the time headed "There is no free lunch in research. Investigation is built on conflicting needs and interests". On the basis of that article I wrote a letter to the publishers in the following terms:

Prof Saltman’s diatribe on research funding and accountability is a thinly veiled public explanation of her extraordinary behaviour as Chairman of the NSW Cancer Council Board.

Her brazen assault on cancer research grant allocation by that body has resulted in the resignation of the advisory committee and a member of the board.

Without warning she and the majority of the newly appointed board did not allocate grants this year and called for a review, in spite of that body having ‘clear, relevant and disseminated policies’ on grant allocation.

She just wanted to change the policies without any consultation or personal expertise in the area.

It is a little rich for Prof Saltman to describe empirical researchers as learning more and more about less and less.

Empirical research is derided, laboratory-based research is expensive, applied researchers are misquoted and we are encouraged to look at newer ways of thinking: where politics, class issues, gender and the environment are to be satisfied before we even look at the scientific value of a project.

That is what I wrote at the time and that is what I believe now. As a result of that and the brouhaha that followed, the newspapers and television stations went wild. Cancer experts from some 35 affiliate organisations in the State bashed up the Cancer Council comprehensively, so much so that funding to the Cancer Council on a yearly basis dropped. The Cancer Council was wounded terribly, and Professor Peter Baume was appointed by the board to try to work out what could be done. His first recommendation was:

Effective immediately, the Research Advisory Committee should be confirmed as the main source of research policy advice for the Cancer Council.

He said it should be reformed. His second recommendation was:

Those persons who have assisted the research activities of the Cancer Council over several years be thanked for the help they gave.

Professor Saltman and the board sacked them and did not even thank them for the work they had done. The Minister did not thank the previous board, which had worked for nothing. The third recommendation was:

All those who contributed to this Review be thanked by the Cancer Council.

The fourth recommendation was:

By Feb 28th 1997 all research Committees of the Cancer Council should be reconstituted with an attempt to continue the membership of many of the distinguished former committee members.

Professor Baume, the independent arbiter, said that the process had to be reinstituted with the same quality people - which must have rung alarm bells for Professor Saltman and her motley crew. But they
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were going to tough it out; they were not going to let those whingeing people get the better of them. Then something awful happened. The Minister ordered a review into environmental smoking and its impact on people’s health. About 30 different New South Wales bodies recommended that there should be no smoking in restaurants or where food and beverages are served. The Minister said, "No way Jose," and the Heart Foundation and many other health bodies came out screaming on 4 or 5 April and condemned the Minister.

Where was Elaine Henry of the Cancer Council, who was always pushing the Opposition when it was in office? Wayne Burns issued a statement to the effect that the board had not seen the report yet but they would make some judgment about it. He sent a brief to Ms Henry asking her to please prepare statements supportive of the direction recommended by the committee but consistent with the policy of the Minister. So here was an independent body having its policy directed by the Minister. But the representative of the board had to come unstuck, because they were wrong. The whole process was short of being corrupt. It was hurting this body that people looked to in New South Wales, which Elaine Henry built from almost nothing to a substantial organisation running a vast number of programs and raising huge amounts of money - because that is what drives research.

The sacking of this remarkable woman, Elaine Henry, has outraged not only the cancer research community but the community in general. Following the media reports, the Minister realised that he had fallen into the biggest black hole of his career. He instantly dumped the board, including Professor Saltman, and told the members that they were not to meet again. The Minister then agreed to reconstitute a new board of 14 part-time members, not 10. The members are mainly to be appointed by the Minister on the nomination of various relevant bodies.

The appointed part-time members of the board are to comprise: one person who has expertise and experience in conducting medical research with relevance to cancer, nominated by the Australian Society for Medical Research - the group made up of 35 Australian big research groups; two persons who have expertise and experience in the care of cancer patients, one nominated by the Clinical Oncological Society of Australia and the other nominated by the Australian Medical Association; one person who has expertise and experience in disease prevention, health promotion or public education, nominated by the Public Health Association of Australia; three persons who have expertise and experience in training undergraduates, nominated by the vice-chancellors of the universities of Newcastle, Sydney and New South Wales; two persons who have knowledge of the needs of cancer patients or other users of health services, at least one of whom has a knowledge of those needs in the rural community, nominated by the Australian Consumers Association or the Consumer’s Health Forum, or both; one person who is a legal practitioner, nominated by the Law Society of New South Wales or the New South Wales Bar Association, or both.

Other part-time members will be a person who is prominent in the business community and a person who has expertise and experience in the practice of accountancy. For the appointment of those two members the Minister may seek nominations from any relevant person or body, including, in the case of the business person, the State Chamber of Commerce - New South Wales - the Australian Institute of Company Directors or the Business Council of Australia; and, in the case of the accountant, the Institute of Chartered Accountants in Australia or the Australian Society of Certified Practising Accountants.

One part-time member is to be an elected staff member - and I am sure that the staff will not elect Dr Refshauge again. The Minister does not get much say in the appointments. He can nominate only one person for appointment as a part-time member, and it is that one person that the Opposition and the Hon. Elisabeth Kirkby are concerned about. To a board that has a heavy reliance on experts in research, treatment, the care of people, consumer interests, a legal practitioner, a business expert and an accountant, the Minister can appoint only one person. The Opposition is concerned that the new board, as distinct from the old board, will not include a person of Aboriginal descent.

The Opposition will not move an amendment on this matter, but I raise that concern. It is important, but difficult, to gain access to Aboriginal communities to encourage them to seek treatment, including the early treatment of cancer. The early detection and treatment of cancer is important, and in that respect the Minister has the opportunity to nominate an Aboriginal person to the board. A further concern is the representation on the board of the vast array of older, non-English speaking people. To accommodate their concerns I ask the Minister to consult with a relevant person from the Australian Consumers Association or the Consumer’s Health Forum who may have a non-English speaking background.

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The Opposition was aware of what was happening to the Cancer Council, but did not interfere; although on one occasion in the Parliament the Opposition asked about the waste of money, and about money not being expended on the research team. At the end of the day, the Opposition is concerned to see the Cancer Council make a fresh start with the support of all members of this Parliament, so that it can get on with the business of re-establishing the community’s trust. Once that trust is re-established the Hon. Elisabeth Kirkby and the Hon. Elaine Nile and other honourable members, together with the broader community, will approve the funding that the council deserves. Most importantly the Cancer Council will then receive corporate donations.

With those few words, I commend the bill to the House. I ask honourable members to carefully consider the value of an Aboriginal person being chosen as the Minister’s one nominee on the board. I ask the Minister to request the consumer groups to be sensitive to the advantage of having a person of non-English speaking background, particularly a woman, as one of their nominations to the Minister. Of course, they cannot be forced to do that, which is good, but I hope that the consumer groups will be sensitive to that suggestion.

The Hon. ELISABETH KIRKBY [2.26 p.m.]: The Australian Democrats support the New South Wales Cancer Council Amendment Bill, and support the views of the Hon. Dr B. P. V. Pezzutti. I have read in the media the problems that the Cancer Council encountered and I re-read the speech I made to the House on 11 October 1995. At that time I placed too much faith in the Government’s assurance that the reorganisation of the Cancer Council 1995 was for the better, not for the worse. Of course, I have been proved wrong. At that time I said:

Certainly I would be very concerned if I thought the council was to become merely a fundraising charity. I am assured, however, that the range of persons, who would possess commonsense and specialist expertise, able to be nominated to serve on both a committee and to select board members and the board itself, will ensure that that does not eventuate.

Unfortunately, I was wrong. Concern had been expressed in certain quarters of the medical profession that section 6 of the Act required only one member of the board to be a medical practitioner. That has proved to be a disaster. If the Cancer Council is to improve incidence of cancer in society, it is quite obvious that the majority of its members must be medical practitioners. One medical practitioner member would represent only token representation from that profession. The Hon. Dr B. P. V. Pezzutti detailed the 14 part-time members of the new board. At least six must have medical qualifications, and three must have expertise and experience in the training of undergraduate and postgraduate experience in cancer control.

The whole focus of the new council has been moved from purely fundraising to the knowledge of medicine, medical research, medical training. The Hon. Dr B. P. V. Pezzutti placed on record concerns that have also been brought to my attention about the omission of the previous Aboriginal community representative. That was one of the important provisions in the Act. I am at a loss to understand why the Government has changed that. As the bill provides for a person to be nominated by the Minister, I seek an assurance that the responsible Minister, who is also the Minister for Aboriginal Affairs, will allow an Aboriginal representative to be included. I do not have to repeat in this House that the health of the Aboriginal population in New South Wales is the worst of any section of the community. Aboriginals also suffer severely from many forms of cancer, particularly breast, colon and liver cancer. Their concerns need to be addressed more directly than those of any other group in the community.

The previous Aboriginal representative on the board represented the needs and desires of her people, and that representation should not be allowed to die merely because the composition of the Cancer Council has been changed. I hope that the Government will take on board the concern I have, a concern that has been brought to the attention of other women members on both the Government and Opposition benches. The Cancer Council undertakes continuing active mainstream research into cervical, colon, breast, and liver cancer and, most particularly in Australia, skin cancer. I believe it must now also undertake more detailed research into cancers caused by the use of chemicals in agriculture, particularly those that are used widely in cotton-growing areas of New South Wales.

In recent weeks I have received a great deal of correspondence from people living in the Gunnedah area. Apparently the records of the Cancer Council show that since cotton was introduced to the Gunnedah area in 1983 there has been an increase in prostate cancer in that part of New South Wales. When the newly formed Cancer Council starts its work, it is important that it undertake a special project into the influence of agricultural chemicals, particularly in areas where cotton is the main crop. In those areas the chemicals are being spread through the air in exactly the same way that Agent Orange was spread during the Vietnam war. The chemicals can spread by wind drift for many
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kilometres. Bearing in mind the amount of research that has been done and continues to be done on a variety of other cancers, the council should now undertake as a priority research into cancers caused by the use of chemicals in agriculture.

The DEPUTY-PRESIDENT (The Hon. Helen Sham-Ho): Order! I remind members of previous rulings concerning the use of mobile phones in the Chamber.

The Hon. ELISABETH KIRKBY: With those remarks, I am happy to support the bill. I hope to receive the assurance about an Aboriginal representative when the Minister speaks in reply.

Reverend the Hon. F. J. NILE [2.34 p.m.]: Call to Australia supports the New South Wales Cancer Council Amendment Bill. The object of the bill is to reconstitute the board of the New South Wales Cancer Council and expand its membership, which now is 10 part-time members, to 14 part-time members appointed by the Governor on the nomination of various relevant bodies or with appropriate experience and expertise, including a staff-elected member. As other speakers have said, the bill will hopefully bring to a close a sorry stage in the history of the Cancer Council that I am sure everyone regrets.

The way in which the former Executive Director of the Cancer Council, Mrs Elaine Henry, was sacked was certainly controversial and led to a great deal of community concern about the attitude of the Government to the council and its treatment of her. Apparently Mrs Henry’s dismissal, which she was not advised of officially, became a type of backdoor resignation. She found out about her dismissal from a press release to the media. That is not the way to treat the person who spent 12 years building up the council into an efficient and effective organisation that is respected both in Australia and internationally. As honourable members know, Mrs Henry received a great deal of community support.

The Hon. Dr B. P. V. Pezzutti: And from Call to Australia too.

Reverend the Hon. F. J. NILE: Yes, we certainly supported her in the same way as many other groups. The underlying suggestion is that part of the tension between Mrs Henry and the Government developed over the effects of passive smoking and the Smoking Regulation Bill that I introduced into this House. The bill finally received the support of this House and has now passed through both Houses. The details may be hard to prove but there is a strong suspicion that the Cancer Council was told that it was not to be regarded as strongly supporting the bill because that would have been in opposition to the position taken by the Minister for Health at that time. That may have led to the breakdown of the relationship and finally to Mrs Henry being sacked from her position. The bill now provides for the reconstitution of the New South Wales Cancer Council.

The Hon. Dr B. P. V. Pezzutti: I hope she comes back again.

Reverend the Hon. F. J. NILE: That is my desire. I have made a note that the Government should apologise for its treatment of Mrs Elaine Henry and reappoint her as the chief executive officer of the council board, or at least issue the invitation. If she declines, she probably has good reason, having regard to the way she was treated. I do not know whether she would take up the position. If an apology were made and an invitation issued to return to the board, that may undo some of the wrongs of the past. Call to Australia supports the bill.

The Hon. R. D. DYER (Minister for Community Services, Minister for Aged Services, and Minister for Disability Services) [2.38 p.m.], in reply: I thank honourable members who have spoken during this debate for their support for the provisions of the bill. Some concern was expressed by both the Hon. Dr B. P. V. Pezzutti and the Hon. Elisabeth Kirkby about Aboriginal representation on the board. I have some advice in that regard from the Minister for Health that I would like to place on the record. The composition of the board was proposed following extensive discussions in a working group comprising a wide spectrum of interests and expertise. The working group considered and discussed Aboriginal and Torres Strait Islander representation on the board. On the basis of that discussion, members of the working group recommended that the board should not contain representation from any specific subgroup of the population. That recommendation was made after considering not only the interests of Aboriginal and Torres Strait Islander peoples but also the interests people from non-English speaking backgrounds and, indeed, specific representation of women’s and men’s health interests.

The reasons for that were twofold. First, board members should be encouraged to take a comprehensive approach to the cancer control needs of the people of New South Wales, including the needs of such population subgroups. Of course, a case could be made for numerous population
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subgroups to be represented on the board, and that would lead to fragmentation rather than appropriate policy. Second, while the Aboriginal and Torres Strait Islander community has many serious health problems, cancer is not as prominent among that community as it is in the community as a whole. The Cancer Council has several programs which address the needs of the Aboriginal and Torres Strait Islander community. For the types of cancers that are more prominent in the Aboriginal community, such as cancer of the cervix, the Cancer Council has specific mechanisms to target the Aboriginal community and has Aboriginal representation in its working parties. I commend the bill to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [2.42 p.m.]: I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The provision of public transport services in large urban and regional centres to provide a realistic alternative to the car has been a fundamental challenge for successive governments.

Bus services and other flexible public transport services such as taxis will become even more important in the future to respond to increasingly dispersed trip-making patterns

.

A key focus of the bill before the House is to foster higher performance standards and accountability in the bus and taxi industry.

The principal amendment being put forward in this bill with respect to bus services is to provide for the establishment of a performance assessment and contestability regime for commercial service contract holders to replace the system of automatic contract renewal rights currently contained in the Act.

Under the current section 23 of the Passenger Transport Act there is little, if any, opportunity for the Government to periodically "test the market" for the exclusive right to provide regular passenger services in an area or on a route.

The effect of the proposed amendment to section 23 of the Act would be to enable a phasing in of a contestability regime for commercial service contracts.

This will provide the most reasonable means of meeting potential national competition policy requirements, without unduly jeopardising the commercial viability and stability of employment in the NSW bus industry.

Under the proposed amendment to section 23 of the Act, all commercial service contracts that are on foot immediately before the commencement of the amending legislation (and that have not already been renewed) will be renewed once in line with existing legislative and contractual entitlements. Thereafter the basis for obtaining any further renewals would be as follows:

•a contract would be renewed for another 5 year term if under the new performance assessment regime a series of best practice benchmarks have been met for a specified period in the previous contract; or

•if the contract holder has not met the objectives and standards prescribed by the performance assessment regime, then the contract would be put to competitive tender.

The case for the introduction of the performance assessment and contestability regime is that:

•best-practice benchmarking can be an effective proxy for outcomes which might otherwise be achieved by competitive tender;

•the introduction of best practice benchmarking and competitive tendering is supported by the industry as a preferable alternative to automatic competitive tendering for all commercial contracts; and

•both best practice benchmarking and competitive tendering provide opportunities for significantly improved services to the public and for potential savings to government.

The best-practice objectives and standards prescribed by the performance assessment regime will relate to:

•service levels;

•the costs to government (if any) of the service;

•fares and ticketing; and

•any aspect of service quality.

For best practice benchmarking to be effective, the framework must have input from both consumers and the industry. It is the intention of the Government that the public transport authority, the public transport advisory council, unions and representatives of commercial regular passenger service operators should be closely involved in shaping the details of the benchmarking framework.

Response to consumer requirements will be a significant indicator of operators’ performance, and in that regard, consumer consultation will be very important.

The proposed change to the definition of "Tourist service" would allow pre-booked services operating according to a publicly available tour itinerary, to travel to multiple destinations. It would also allow services operating without

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pre-booking or without a publicly available tour itinerary, to travel to either a common destination (as is currently provided for), or to multiple destinations if all passenger journeys have a common origin point.

The new legislative definition will accord much better with the requirements of the tourism market.

It is also proposed to insert a definition of "charter service" into the Act. The proposed definition of "charter service" has been designed to accurately reflect the generic characteristics of such services, while maintaining an effective demarcation with a "regular passenger service", that is, a "charter service" does not include a service conducted according to a regular route or timetable.

Consistent with the current Government’s policy, it is now proposed to broaden the Act’s objectives to include:

•encouraging public passenger services that meet the reasonable expectations of the community for safe, efficient, and reliable passenger transport services; and

•encouraging co-ordination of public transport services.

These simple amendments recognise the community interest in public passenger services and will remedy the existing situation where the only interests being safeguarded by the objectives of the Act are those of traditional service operators.

In the New South Wales taxi industry there are thousands of individually licensed vehicles, roughly half of them operated by lessees, engaging many more thousands of individual drivers.

It is considered that further improvements to service levels are best approached via the networks. This involves redefining what constitutes a network and introducing a performance based system and new accountability mechanisms at a network level.

The bill provides that a taxi-cab used to provide a public passenger service must be connected to an authorised ‘taxi-cab network’ and have arrangements in place to receive messages from the network centre. This amendment also recognises the increasing use of mobile phones and satellite communications in the taxi industry.

The bill goes on to provide that the taxi-cab network authority is subject to conditions prescribed by the regulations or imposed by the director-general. The prescribed conditions would include requiring the network to:

•meet specified service levels at given times of the day;

•ensure maximum taxi utilisation rates;

•ensure standards of customer service including provision of child restraints to passengers on request;

•provide for the safety of passengers and drivers;

•meet certain vehicle maintenance and presentation standards;

•train taxi drivers; and

•establish quality assurance systems.

A performance-based system will provide better accountability for the quality of services co-ordinated and delivered via taxi-cab network. Breaches of conditions by the taxi-cab network will attract monetary penalties with the ultimate sanction being the revocation of a network authority.

There are a number of other deficiencies and anomalies in the Passenger Transport Act that require remedying in order to ensure the continuing improvement of taxi services.

It is proposed that provision be made for both accreditation and authorities to be periodically renewed.

In addition, the bill provides that accreditation and authorisation may contain conditions requiring the operator or driver to satisfy certain performance standards on an ongoing basis.

At the moment, the only sanction against recalcitrant operators and drivers is the threat of cancellation of the accreditation or authorisation. It is proposed to provide for monetary penalties for breaches of accreditation and authorisation conditions to allow for more effective and even-handed enforcement.

At present, it is estimated that around half of the vehicles in the Sydney taxi fleet are operated by lessees and sublessees. Accordingly, it is proposed that section 29 be amended to recognise this. A consequential amendment is also required to section 40 which currently allows only a licence-holder to operate another vehicle in place of a taxi.

The Act provides that the Director-General of the Department of Transport "may" issue licences "unless" certain conditions are established. The wording of this section has been found to be unclear. It is proposed to amend section 31 to establish very clearly that the director-general has absolute discretion in the issuing of licences, and to remove the current cumbersome "provisos".

The issuing of short term, non-transferable, non-renewable licences is restricted to 1 year terms only. This restriction on the term of the licence provides no flexibility to operators interested in short term licences. It is proposed to amend the section to permit the issuing of short term licences for any term up to six years (which is the regulated maximum age of a taxi) to better meet the needs of operators.

The director-general determines fares and approves other arrangements for remuneration in connection with taxi-cab or private hire vehicle services. The proposed amendments provide for the fares determined by the director-general to be published in the "Government Gazette" for all to see.

Although the fee for a short-term licence for taxis is required to be determined by the director-general, such an amount is supposed to reflect what such a licence would be worth on the open market if it were transferable. In practice, compliance with this requirement has not been found to be feasible because such licences cannot be traded on the open market. Therefore, it is recommended that this unrealistic fetter on the director-general’s discretion to determine licence fees be omitted from the section.

To enable effective enforcement to be undertaken, it is proposed to amend the Act to allow authorised enforcement officers powers of entry to inspect vehicles, premises and records at any reasonable time. The bill also includes a range of public safeguards will apply in that dwellings cannot be entered, identification must be produced, and any damage must be paid for.

Page 11319

It is proposed to amend section 52 to make it clear that the only persons who have rights of appeal against a decision of the director-general in licensing matters are the licensee or licence applicant (not other licensees) and to make it clear that the quantum of licence fees due to the crown is not an appealable matter.

Each of the proposed amendments to the Passenger Transport Act that outlined today is aimed at promoting and enforcing higher performance standards and accountability in the bus and taxi industry.

I commend the bill to the House.

The Hon. J. H. JOBLING [2.42 p.m.]: The object of the bill is to provide for the expiry and renewal of the accreditation of operators of public passenger services, a matter that needs to be considered from time to time. The authority under which persons may be engaged as drivers for the purpose of the service is undoubtedly important to members of the public. The bill also makes provision with respect to the performance assessment of the operators of commercial regular passenger services and the renewal of their service contracts. Indeed, the matter of buses in this country being driven by visitors who may or may not be licensed or accredited to drive them was raised in the newspapers today. The renewal of service contracts is of great importance to the security and safety of passengers travelling on regulation vehicles. The bill varies the basis on which the discretion of the Director-General of the Department of Transport to issue taxicab licences is exercisable. It also varies the term for which short-term taxicab licences may be issued. The Opposition will support the bill.

The Hon. Dr MARLENE GOLDSMITH [2.43 p.m.]: I am delighted to speak to the Passenger Transport Amendment Bill and to report that the Opposition will support it. As honourable members are aware, the purpose of the bill is to foster higher performance standards in the bus and taxi industry by the introduction of a performance assessment and contestability regime for the renewal of commercial service contracts for buses, and also the introduction of a new performance-based system for the accountability for taxicab networks, with significant monetary penalties for inadequate performance. The proposed amendment to section 23 of the Act will enable the phasing in of a contestability regime for commercial service contracts in the bus industry. That will provide the means for meeting potential national competition policy requirements without jeopardising the commercial viability and stability of employment in the bus industry.

Best practice benchmarking and competitive tendering for the New South Wales bus industry may also provide opportunities for improved service levels and for potential savings to the Government. Changes to the Act will require taxi networks to meet specific service levels at any given time of the day; to ensure maximum taxi utilisation rates; to ensure standards of customer service, including the provision of child restraints on request; to provide for the safety of drivers and passengers; to meet vehicle maintenance and presentation standards; to provide for the training of taxidrivers; and to establish quality assurance systems. If drivers and operators do not meet standards set by the Department of Transport, they will face increased fines. The periodic accreditation of taxidrivers will deliver better service levels for passengers. Given that the legislation seeks to achieve those objectives, I am delighted to report that the Opposition will support the bill.

The Hon. ELISABETH KIRKBY [2.46 p.m.]: On behalf of the Australian Democrats I am also happy to support the Passenger Transport Amendment Bill. I should like to place on the record that research into the legislation was done for me by Tom Chisholm, who worked for me in a part-time capacity as a research officer in the preparation of the Australian Democrats integrated transport strategy. I am indebted to him for what I believe are important comments on the bill. As has been pointed out by previous speakers, the most important reforms in the bill relate to the private bus industry. The first of those reforms relates to exclusive rights and competition policy. It is obvious that these reforms are justified both to improve services to the public and to comply with national competition guidelines.

It has been stated that the present system of effective automatic renewal may well be in breach of the new Trade Practices Act. It is argued that the new system will be acceptable as the provision of exclusive rights and service contracts is not necessarily a problem in itself, provided that the basis for obtaining those rights is periodically contestable. Those are the views of the Minister in another place. However, it is not entirely clear that under the new system the basis for obtaining the exclusive rights are periodically contestable; they are only contestable by competitive tender if the best practice benchmarks are not met. If those benchmarks are met, it seems that the contract is renewed automatically. It may be interesting to ask the Government to produce legal advice to show that the amendments are legally acceptable and that they comply with the requirements of the new Trade Practices Act. The Minister also stated:

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The "exclusive service franchise model" continues to have the Government’s support and the absolute support of the bus industry as a demonstrably better policy framework . . . than, for example, the British deregulation model.

The system that has been entrenched in the bill seems to depart from the old system to the minimum extent necessary to comply with the national competition laws. It represents a rejection of alternative policies, such as, on the one hand, gradually replacing private bus services with public ones and, on the other hand, adopting a fully competitive tendering process on the expiry of each five-year contract. The key difference between the old and new systems of contract renewal is the distinction between the old minimum standards and the new best practice benchmarks. I do not know how those best practice benchmarks can be enforced, even if they are to be enshrined in the legislation.

It seems at the moment as if they are to be left to the discretion of the Department of Transport, in which case it may be possible that they could be significantly watered down to suit the commercial interests of the well-connected private bus industry. In the future the Government might consider amendments that require best practice standards to be written into legislation, at least to the extent that that is possible. The success or failure of the reforms in the bill will obviously depend on the adequacy of the best practice standards and, as I have just said, the extent to which they are enforced. It would seem that the taxicab reforms are very good but, once again, their success will no doubt depend on the adequacy and enforcement of the practice standards.

I hope those who travel across Sydney will have greater opportunities to use private or public buses and to use bus, rail and light rail links. At the moment there are problems. Obviously Sydney Harbour is a problem. Those living on the north shore and in the Chatswood and Epping areas also experience problems. Those living on the peninsula have a bus service that is not really adequate. Those who live on the central coast and make their way to work in the west of Sydney by car are making the roads overcrowded and, in many cases, dangerous. Even using the existing ringroads the public transport service from north of Hornsby to the west of Sydney is not adequate. Those issues need to be examined. Whether the aim is to get more people to use public or private transport, unless the timetables meet their employment needs they will not use either public or private transport: they will use private motor vehicles. That is causing numerous air pollution problems. With those remarks I am happy to support the bill.

Reverend the Hon. F. J. NILE [2.52 p.m.]: Call to Australia is pleased to support the Passenger Transport Amendment Bill. This important legislation contains provisions that will upgrade the operations of bus networks in New South Wales. At present bus operators with commercial contracts have an automatic right of renewal for a further five years if they meet the terms of the contract. In effect, that gives bus operators perpetual rights of operation without allowing other operators an opportunity of better contract performance. The State Transit Authority and a number of private bus operators have performed well by building up service levels, responding to new travel patterns, and introducing new cross-regional services.

A number of bus operators have not performed well, and have been content to provide the bare minimum levels of service. The bill introduces a new competitive tendering and benchmarking regime for all commercial service contracts in 2001 after all original contracts have been renewed. Call to Australia has been advised that the legislation has resulted from consultation with the Public Transport Advisory Council, the Public Transport Authority, the Environment Liaison Office, the Bus and Coach Association and the Taxi Council. The bill has received the support of those bodies as well as the support of various unions and operators. For that reason Call to Australia supports the bill.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [2.54 p.m.], in reply: I thank honourable members for their contributions to the debate and I commend the bill to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [2.55 p.m.]: I move:

That this bill be now read a second time.

I seek leave to have my second reading speech incorporated in Hansard.

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Leave granted.

Mr President,

The purpose of this Bill is to introduce a comprehensive package of measures to address Road Rage.

Road Rage is a new phenomenon both overseas and in Australia. It is, as Honourable Members will be aware, a matter of serious public concern.

Road Rage is a term which encompasses many forms of frightening, intimidatory and aggressive behaviour by drivers.

Recently, responsible and law abiding members of the general community have begun to fear what should be an everyday routine event - driving on a public road.

The package of measures includes serious offences to deter and deal with Road Rage. The legislation before the House aims to improve the safety and protection of NSW drivers from those unable to control their emotional responses arising out of a traffic incident.

The Government has moved swiftly to send the strongest message - that Road Rage will not be tolerated on NSW roads. Those drivers who through deliberate, reckless or irresponsible driving frighten responsible and law-abiding motorists will be severely dealt with.

The Bill provides for two menacing driving offences in the Traffic Act.

Firstly, "menacing driving" -

Where the driver ought to have known that another person might be menaced.

This offence has been created as the offence of menacing driving with intent, which I refer to shortly does not cover situations on the road where, although intent may not be established, any reasonable person would have known that their actions might menace another driver.

"Menacing driving" will apply where a person drives in a manner which menaces another and where the driver ought to have known that the other person might be menaced.

This new provision is designed to protect drivers from being subjected to frightening and intimidatory driving.

An example of this behaviour is where a vehicle is being driven very close to the vehicle in front, perhaps accelerating hard and then braking suddenly. A reasonable driver would refrain from this behaviour because of the potential to frighten the driver in front.

Such behaviour, commonly referred to as "tailgating" is both frightening and dangerous. No reasonable driver would be unaware of the effect of this behaviour.

Of course, this new offence will require a person to be actually menaced.

The Bill proposes a penalty for a first offence of $2,000 and/or 12 months gaol and $3,000 and/or 18 months gaol for a subsequent offence.

Secondly, "menacing driving with intent" -

There is a similar existing offence under the Traffic Act of "menacing driving". This offence is one by which the person drives a motor vehicle in a manner that menaces another person and the person intended to menace that other person.

Existing penalties under the current Act for a first offence of $1,500 and/or 9 months gaol are clearly inadequate and do not reflect community concern about this behaviour.

Accordingly the Bill provides for a doubling of these penalties to $3,000 and/or 18 months gaol.

The penalty for a subsequent offence are also substantially increased to $5,000 and/or 2 years gaol.

To deal with the most serious incidents of Road Rage, a new offence of "predatory driving" has been created.

The predatory driving offence is committed where a driver pursuing or travelling near another vehicle engages in a course of conduct that causes or threatens impact with the other vehicle and intends to cause a person in that vehicle actual bodily harm.

In some circumstances it could be seen as akin to stalking with a motor vehicle.

I emphasise that impact is not necessary. A drivers vehicle does not need to be hit for that person to have a very real feeling that they could suffer a crippling injury or death.

An example of predatory driving may be where a driver, perhaps in the course of a pursuit, in order to prevent another driver from completing a merging manoeuvre swerves at the other driver’s vehicle, perhaps running it off the road. This is dangerous and life threatening behaviour.

Reasonable drivers within the community should be protected from these frightening, intimidatory and aggressive forms of behaviour which can result in death or permanent injury. The Government is committed to making NSW roads the safest in the world. There is no place for aggressive, often life threatening behaviour on our roads.

The penalties to deal with and deter menacing and predatory driving reflect the seriousness of the offences.

I will detail those penalties shortly.

I have informed the House that the maximum penalties for intentional menacing driving have been significantly increased. The Government offers no apology for this.

The maximum penalties which I have outlined for the new lesser offence of menacing driving where it is not required to prove intent are substantially higher than the current penalties for the existing menacing driving offence.

In framing these penalties the Government has sought to reflect community concern about such unacceptable driver behaviour while ensuring that the penalties remain consistent with the hierarchy of penalties for other serious traffic offences.

A relevant example is the existing offence of dangerous driving causing grievous bodily harm. Currently the maximum term of imprisonment for the offence, when heard summarily, is eighteen months.

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It must be kept in mind that the three offences I am referring to in this Bill can occur even though there is no actual physical injury caused.

Turning specifically to "predatory driving" the Bill provides a maximum penalty, where a matter proceeds by indictment, of five years gaol and /or $100,000 fine regardless of whether it is a first or subsequent offence.

If a predatory driving offence is heard summarily by a magistrate the maximum penalties will be 18 month gaol and/or a $10,000 fine consistent with other serious traffic offences.

Mr President, these are very significant penalties.

And persons committing these offences can additionally, subject to the order of the Court, face licence disqualification of 3 years if they have not committed a major traffic offence in the preceding 5 years, and 5 years disqualification if they have.

Honourable Members, this Bill is a timely response to address the problem of Road Rage. It represents a decisive, but measured and considered response which aims to ensure that the community is adequately protected.

But this does not mean that the Government has closed the case on Road Rage. We recognise the need to educate the community to share the road safely. Motor vehicles, heavy vehicles, buses, taxis, motor cycles, pedestrians and bicycles must all share the road safely.

The Government is currently implementing the "Sharing the Road" Campaign to improve knowledge of road rules and the correct use of traffic facilities and to promote positive and courteous behaviour. The Government has also requested the STAYSAFE Committee to examine the wider ongoing issue of Road Rage and how to improve driver behaviour.

This legislation will send out a message to the public and especially those drivers likely to behave in irresponsible and frightening behaviour behind a wheel that Road Rage will not be tolerated. I commend it to the House.

The Hon. JENNIFER GARDINER [2.55 p.m.]: The Opposition does not oppose the bill. The bill has as its first objective to increase the penalty under the Traffic Act for intentional menacing driving from a first offence penalty of $1,500 and/or nine months imprisonment to $3,000 and/or 18 months imprisonment, and for a second offence to increase the penalty to $5,000 and/or two years imprisonment. The bill also creates a second lesser offence of driving in a manner that the driver ought to know might be menacing. For this new offence the penalty will be $2,000 and/or 12 months imprisonment for a first offence. The penalty increases to $3,000 and/or 18 months imprisonment for a second offence.

The bill also creates a new indictable offence under the Crimes Act of predatory driving. That offence will carry a penalty of $10,000 and/or 18 months imprisonment in prosecutions dealt with by way of summary trial, and $100,000 and/or five years imprisonment in matters dealt with by a jury. Menacing driving with intent is already an offence under the Traffic Act. It requires proof of intent to menace, and the bill increases the penalty for that offence. The new offence that is created by this bill, that of driving in a manner that a driver ought to know is menacing, involves driving in a menacing way and in a way which the driver knows perfectly well is menacing to another driver on the road.

Driving in a way that involves dangerous behaviour, such as tailgating, improper flashing of lights, which I know my colleague the Hon. D. J. Gay is very concerned about, or overtaking and suddenly slowing down would be covered under the new provision. As a frequent traveller on New South Wales roads, particularly on major highways such as the Hume Highway where this sort of phenomenon can be extremely disturbing, given the speeds at which people normally travel on major freeways, I welcome that provision. In cases of those types of dangerous or menacing driving, proof of actual intention will not be required under this legislation. The offences relating to menacing driving, menacing driving with intent and driving in a manner that a driver ought to know is menacing will carry periods of disqualification from driving for three years, subject to the order of the court, and where no other major traffic offence has been committed in the past five years.

If another major traffic offence has been committed in the past five years, the disqualification period will be for five years. The new offence, predatory driving, is akin to stalking with a motor vehicle. Predatory driving is driving while pursuing or driving near another vehicle and when a driver engages in a course of conduct that causes or threatens impact with another vehicle, and when there is intention to cause bodily harm. In certain cases a summary trial for this offence will be allowed and the penalties for cases involving summary trials are consistent under this legislation with dangerous driving causing actual bodily harm or death, that is, 18 months imprisonment. If the matter is dealt with by way of a jury trial, the legislation provides harsher penalties of up to $100,000 in fines and/or five years imprisonment.

The Opposition will not oppose the bill. However, we are critical of the penalty provisions contained in it, which we believe to be inadequate. The proposed penalties send a message to the community that some of the elements of menacing driving are not taken seriously by the Government. The bill fails to deal with carjacking, and that is another shortcoming. Last year the Premier, Mr Carr, undertook to ensure that severe penalties for
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carjacking would be introduced following some serious incidents on New South Wales roads. Penalties for carjacking should have been included in the bill. This is just another example of the Government’s broken promises. The Opposition is disappointed about certain deficiencies in the bill, but at least it is a step in the right direction. We will not oppose the bill.

The Hon. D. J. GAY [3.01 p.m.]: I support the bill, but I am concerned that it treats the result rather than the cause. I do not applaud road rage and the situations covered by the bill. However, I applaud the Government for addressing these issues, even though the causes of road rage remain. The bill refers to menacing and predatory drivers, but it does not refer to stupid and selfish drivers - drivers who cause people to lose their cool, including people who drive in the right-hand lane on a freeway or tollway, where the traffic is allowed to travel at 110 kilometres an hour, and sit beside another car that is travelling at 90 kilometres or 100 kilometres an hour. If we are going to be fair dinkum about road rage, we have to look at the causes as well as the result. I would be happier if the bill treated stupid, arrogant and selfish drivers the same as it treats menacing and predatory drivers.

Another example is people who feel that it is their God-given right to have their lights on high beam. These people fail to dip their lights as they pass other cars, which is against the law. Other motorists are put into an unsafe situation, particularly on a wet night when the high beam is glaring through the window, reflecting off the windscreen. I now raise one of my greatest concerns. During the sittings of Parliament I have to drive through Sydney traffic on a daily basis. We have to rationalise cyclists, bicycle couriers and cars. There is a problem with traffic in Sydney. Motorists are frustrated when cyclists come between the lanes at traffic lights - and often run their handlebars along the sides of cars and hit the mirrors - then pull into the middle of the traffic as the lights change, and hold up traffic until the next set of lights, where they hold up another set of traffic. We have to address the correlation between cars and cyclists.

The Hon. I. Cohen: Get the cars off the road.

The Hon. D. J. GAY: The Hon. I. Cohen has made an unusually trite remark; he is normally more sensible.

The Hon. Ann Symonds: He is just being frivolous.

The Hon. D. J. GAY: Yes, people are being frivolous. I am serious about this. These sorts of situations make people lose their tempers. I do not agree with them losing their tempers, but we have to remove the cause wherever possible. We have to address the problems caused by courier bikes on pedestrian crossings. I have been hit twice by courier bikes on pedestrian crossings.

The Hon. M. R. Egan: It was probably your fault.

The Hon. D. J. GAY: It was not my fault! What a stupid comment from the Leader of the Government. Couriers should not be riding bikes across pedestrian crossings; they should be pushed across.

Reverend the Hon. F. J. Nile: They often go against the red lights as well.

The Hon. D. J. GAY: Yes, they go against red lights. We have to address the slow cars in the fast lane; cars with their lights on high beam; and courier bikes and cyclists that go through the middle of lanes, pull in front and then hold up traffic.

Reverend the Hon. F. J. NILE [3.05 p.m.]: Call to Australia supports the Traffic and Crimes Amendment (Menacing and Predatory Driving) Bill. The bill will increase the existing penalty for the summary offence of intentional menacing driving; create a similar summary offence of driving in a manner that the driver ought to know might menace, with a lesser penalty; and create an indictable offence of predatory driving, with a maximum penalty of five years. We support the bill. Society already has problems with law and order, domestic violence, drug abuse and so on. Now a new phenomenon has emerged. A change in behaviour is occurring, which is serious. I hope the bill will nip it in the bud before it becomes a major social problem. Road rage is now a serious social problem in the United States.

Road rage is defined as behaviour where one driver acts angrily to other drivers - cutting them off, tailgating, giving the finger, waving fists, flashing lights, braking to get rid of tailgaters, et cetera. There is a growing tendency among drivers in the United States - and a minority of drivers in Australia - to change from being an average citizen to a Mad Max. In the United States the rate of aggressive driving incidents - defined as events in which an angry or impatient driver tries to kill or injure another driver after a traffic dispute - has
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increased by 51 per cent since 1990. In those cases, 37 per cent of the offenders used firearms, 28 per cent used other weapons, and 35 per cent used their cars. Irresponsible drivers are turning their cars into suburban assault vehicles.

In a United States poll of residents of Maryland, Virginia, and Washington, DC, aggressive driving was listed as a bigger concern than drink-driving. In the United States an AAA study found that since 1990 there had been 218 fatalities directly attributable to enraged drivers. This legislation is needed, even though some people may feel that road rage is only a relatively minor problem. I believe it is a serious problem. If it is not discouraged now, it may become common practice and even be accepted. Such behaviour is totally unacceptable. This bill will help to bring the message home loud and clear to irresponsible drivers, even though they are a minority.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [3.08 p.m.], in reply: I thank honourable members for their contributions to the debate. I commend the bill to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages.

The PRESIDENT: I inform the House that the Clerk has received the following nominations for membership of the Joint Select Committee upon the Threatened Species Conservation Act 1995 in accordance with the resolution of the House on 24 June:

Government member: Ms Burnswoods
Opposition member: Mr Ryan
Crossbench member: Mr Jones

The PRESIDENT: I inform the House that the Clerk has received the following nominations for membership of the Joint Select Committee upon Injecting Rooms in accordance with the resolution of the House on 24 June:

Government members: Ms Staunton and Mrs Symonds
Opposition member: Mr Jobling.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [3.10 p.m.]: I move:

That this bill be now read a second time.

On behalf of Her Majesty’s Government I welcome Mr Andrew Tink, the honourable member for Eastwood, to our gallery. I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

In December last year, the Parliament passed the Traffic Amendment (Street and Illegal Drag Racing) Act 1996 to give police power to impound vehicles which have been used in illegal drag racing.

Under the provisions, cars can be impounded for up to three months for a first offence and they can be forfeited for subsequent offences.

The legislation established a six month trial of these powers, initially scheduled to expire on Friday (20 June).

I last night informed the House that the Government had decided to permanently enforce those powers by continuing operation of the Act.

This followed a review of the Act by the Staysafe Committee and input by a wide range of interested groups, including police, the RTA, car clubs, road safety experts and members of the public. I take this opportunity to commend the Staysafe Committee for its work.

More than one hundred and forty drag racing vehicles have been impounded in less than six months under the new powers.

This is more than one car for every working day, or more than five cars for every weekend.

It is a regrettable and disturbingly-emphatic confirmation of the extent of the drag racing problem.

This Bill proposes amendments to the Act to take into account the experience of police in implementing the new powers.

It seeks to give new powers to:

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I. impound a drag racing vehicle up to 10 days after an offence;

II. seize a vehicle from private property, subject to a search warrant being obtained;

III. recover the cost of towing a seized vehicle;

IV. disposed of unclaimed impounded vehicles; and

V. seize vehicles engaging in ‘wheelies’ where only one car wheel loses traction.

Under the existing provisions, vehicles can only be seized on the spot, encouraging offenders to evade police to avoid impounding of their vehicles.

The Government is moving to close this escape route by giving police up to 10 days to impound vehicles.

It will also address circumstances where on-the-spot impounding of vehicles would be inadvisable, for example because of the size and nature of any crowd watching an illegal drag race.

Under the proposed amendment, a police officer will have power to impound a vehicle if the officer reasonably believes that the vehicle has been used to commit one of the offences during the past 10 days.

The move is consistent with a recommendation of the Staysafe Committee that a period for impounding be specified.

It is clearly inappropriate that police should meet the costs of towing a vehicle seized in accordance with the legislation, and this Bill redresses this situation.

The Bill also seeks to improve the current legislation by making it clear that offenders cannot avoid the seizure of vehicles by driving them onto private property. As I have indicated, the Bill will allow police to impound vehicles on private property, subject to a search warrant being obtained.

A final operational issue relates to the disposal of impounded vehicles. As impounded vehicles have fallen due to be released, some vehicle owners have failed to collect them, despite being advised that the impoundment period has expired.

Police suggest that some owners of impounded cars are deciding to abandon their vehicles. Clearly the police need to be able to dispose of unclaimed vehicles and to recover storage costs. The Bill provides procedures for this purpose, so that vehicles are disposed of in appropriate circumstances and that the proceeds of sale are properly used.

The current Act provides that it is an offence to operate a motor vehicle on a public street so as to cause the vehicle ‘to undergo sustained loss of traction by the driving wheels.’

However, an offence is not committed if traction is lost by one wheel only. This Bill extends the offence to loss of traction by one wheel only.

The existing Act has been an innovative and effective move to combat the dangerous practice of illegal street racing.

I believe it has enjoyed both bipartisan political support and general community endorsement.

This Bill puts into practice the lessons of the past six months. I am confident it represents a significant improvement to the existing provisions.

I commend the Bill to the House.

The Hon. JENNIFER GARDINER [3.11 p.m.]: The Opposition does not oppose the Traffic Amendment (Street and Illegal Drag Racing) Bill. Six months ago, in the final days of the last session, the Parliament passed the Traffic Amendment (Street and Illegal Drag Racing) Act. That Act gave police the power to impound vehicles used in illegal drag racing. Under its provisions cars could be impounded for up to three months for a first offence and forfeited in the case of repeat offences. That legislation provided for a six-month trial of those powers, scheduled to expire a few days ago, on 20 June. The Carr Government effectively took over from where the Liberal member for Vaucluse, Mr Peter Debnam, started.

Mr Debnam introduced his private member’s bill, the Traffic Amendment (Street Racing) Bill 1996, in response to concern expressed by the community and by local police arising from antisocial behaviour at events such as the Christmas festivities at Bondi that got way out of hand in December 1995. After those disturbing events New South Wales police recommended legislative action, but the year went by and the Minister for Police, Mr Whelan, failed to act. As the residents of the eastern suburbs were particularly frightened of, and their lifestyles were disrupted by, street racing, especially along Campbell Parade, Bondi Beach, Mr Debnam, who is a very pro-active member for his community, decided to act in the absence of an alert New South Wales Government. The Government was unprepared to act despite the advent of this new form of urban terrorism and despite also that the Victorian Government under Mr Jeff Kennett had introduced legislation to deal with a similar problem.

Eventually, embarrassed at its tardiness and the level of community support for the Opposition’s initiative, the Carr Government acted by renaming Mr Debnam’s private member’s bill, and it passed through the lower House. Since the debate on this bill in the Legislative Assembly an article was written by Dr Michael Henderson, a road safety consultant and researcher, which was published in the "Drive" section of the Sydney Morning Herald on 20 June. In that article Dr Henderson is critical of this legislation because it proposes what he calls severe punishment for behaviour that, rather than threaten safety, is a public nuisance. In that article he posed the question:

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Why is driving at 105 km/h in a 60 km/h zone seen as a far less serious offence than spinning the wheels in a deserted back street?

The answer obviously is that Campbell Parade, Bondi Beach, is far from being a deserted back street; it is a major thoroughfare for pedestrians. Often family groups and tourists from around the world and visitors from any part of New South Wales congregate at Bondi Beach. The Opposition believes that people affected by illegal drag racing have a right to expect that this Parliament will act to provide a safer urban environment. The Minister for Roads, Mr Scully, has reported that more than 140 drag-racing vehicles have been impounded in the six months trial period of the legislation. That is a significant number in anybody’s book. The 1997 version of the legislation takes into account police experience in implementing the legislation during the trial. The bill provides for the impoundment of a drag-racing vehicle up to 10 days after a drag-racing offence has been committed. It allows a vehicle to be seized from private property as long as a search warrant has been duly obtained.

The Hon. Ann Symonds: Is this Andrew Tink legislation?

The Hon. JENNIFER GARDINER: Certainly Mr Andrew Tink is an assiduous and attentive shadow minister for police and was one of the people to move along debate on this matter, in the absence of a pro-active police Minister. The bill extends the power to seize vehicles that have been used to perform wheelies, even though only one wheel on the car loses traction. The trial legislation allowed for a vehicle to be seized on the spot, but offenders evaded police so that impounding the vehicle would be difficult. Police will now have up to 10 days to impound vehicles, and the balance of law will assist in successful prosecutions. This amending bill also takes into account the need for police to note that an on-the-spot seizure might be inadvisable in certain circumstances. For example, a large crowd might be watching illegal drag-racing and an on-the-spot seizure of a vehicle might be a dangerous exercise.

Under the provisions of the bill, if a police officer reasonably believes that the vehicle has been used to commit one of the offences under the Act during the past 10 days, he or she may impound that vehicle. This amendment accords with the recommendation of the Staysafe committee to spell out in legislation the impounding period. Another improvement involves liability for the cost of towing a seized vehicle. An oversight in the previous legislation has resulted in a new provision to provide for the recovery of the fee incurred by police to tow a seized vehicle. Under the previous legislation it was possible to avoid prosecution simply by driving the offending vehicle onto private property. This bill closes that loophole, provided a search warrant is obtained before entering the property.

The bill also addresses the question of the disposal of impounded vehicles. Police have encountered the problem of impounded vehicles not being reclaimed when the impoundment period has expired. The Police Service has become a dumping ground for some vehicles. The new bill sets out provisions for the proper disposal of such vehicles in certain circumstances and ensures that the proceeds of any sale are properly used. The provisions of the trial legislation have been amended so that vehicles performing one-wheel wheelies will be caught by the legislation. The legislation as originally devised by the honourable member for Vaucluse and the Opposition has received community and police support to deal with what was becoming a serious problem in some communities. This bill follows the recommendations of the Staysafe committee and the police, and improves the legislation that was debated at the end of last year. Therefore, the Opposition does not oppose the bill.

Reverend the Hon. F. J. NILE [3.18 p.m.]: The Call to Australia group is pleased to support the Traffic Amendment (Street and Illegal Drag Racing) Bill. This bill will replace the Traffic Amendment (Street and Illegal Drag Racing) Act 1996, which granted the Police Service the power to impound and ultimately confiscate vehicles being used for illegal street racing. The provisions of that Act have proved an effective weapon against illegal street racing. More than 140 drag-racing vehicles have been impounded in less than six months. This represents more than one car for every working day, or more than five cars for each weekend, since the commencement of the trial. This clearly demonstrates the serious extent of drag racing in our city and suburbs.

This bill will give police additional powers to those that exist under the present legislation. Police will be able to impound a drag-racing vehicle from private property up to 10 days after an offence has been committed, subject to a search warrant being obtained; to recover the cost of towing a seized vehicle, to dispose of unclaimed and impounded vehicles and to seize vehicles that engage in wheelies in which only one car wheel loses traction. Under the existing provisions vehicles can only be seized on the spot and this encourages offenders to evade police and avoid the impounding of their
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vehicles. This loophole will be closed under this legislation. The proposed legislation gives police discretion as to when and how they impound a vehicle.

An added danger of drag racing is the resultant increased mob violence. Gangs of young people, often under the influence of alcohol and with militant anti-police attitudes, have threatened police when they have sought to restore the peace. It is not wise for only one or two police officers to attend the scene. Under this legislation police can take note of the vehicles and impound them within 10 days following the drag race. After the excitement of the race, many drag-race drivers will be shocked to learn that their vehicle can be confiscated up to 10 days following a drag race. Often the car is their idol which they have spent a great deal of time and money rebuilding and modifying. So it has more significance to them than an ordinary vehicle. The legislation will help to prevent street and illegal drag racing and will reduce the unsociable behaviour that often accompanies drag races. Call to Australia supports the bill.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [3.22 p.m.], in reply: I thank honourable members for their significant contributions to the debate and I commend the bill.

Motion agreed to.

Bill read a second time and passed through remaining stages.

Debate resumed from 26 June.

The Hon. J. H. JOBLING [3.24 p.m.]: The Opposition has given this bill considerable attention. It relates to the length of time that a member of the Police Service can detain a person for investigation to ascertain whether that person has been involved in an offence. The lack of power to detain persons merely for questioning has caused great difficulty for serving officers. I am sure the Hon. M. J. Gallacher and others will be happy to expand on the provisions of this bill.

The Hon. M. J. GALLACHER [3.25 p.m.]: The Crimes Amendment (Detention after Arrest) Bill is one of the most significant bills that will be introduced into this Chamber during the life of this Parliament. It will have a direct impact upon the ability of police to fully investigate crimes against the community, and will place within a recognised legal framework the responsibilities of police when dealing with a suspect, while at the same time protecting the rights of the said suspect. This follows the recommendations of the Wood royal commission. Up until the introduction of this bill, police generally operated in an area of uncertainty when dealing with suspects.

The law is clear, in that section 352 of the Crimes Act provides that upon detaining a suspect a police officer must take that person before a justice and must do so without delay, or as soon as reasonably practicable. Therefore, before a person is arrested, police must have sufficient evidence to warrant a charge. Police cannot arrest or detain a suspect for the purpose of interviewing. This was the basis of a High Court decision, known as the Williams case, which has become the foundation for this legislation. The basic facts of that case are that at 6 a.m. on 17 May 1984 in Scottsdale, Tasmania, police arrested Williams for a number of break, enter and steal matters. Instead of taking Williams directly before a magistrate, police detained him until 10 a.m. on 18 May 1984.

During the time he was in custody he was questioned for over 7½ hours, not only about the matters for which he had been detained but about a further 26 break and enters and other thefts. At his trial Williams pleaded guilty to the matters on which he was first arrested but pleaded not guilty to the further 26 matters. Williams was found not guilty on those matters and the Crown appealed to the Tasmanian Court of Criminal Appeal, whereupon the ruling of the trial judge was overturned. Williams subsequently appealed to the High Court. The High Court’s decision has caused the confusion, which has remained until this very date. High Court judges Mason and Brennan said the following:

The Tasmanian Court of Criminal Appeal appears to have accepted the proposition that when a person, having been lawfully arrested, is in custody of a Police officer S.34(1) of the Tasmanian Justices Act does not require the Police officer to bring him before a Justice before the police officer has had a reasonable opportunity to question the person arrested about the offence for which he has been arrested and other offences about which the person is willing to provide information to the police.

That proposition is contrary to principle and is inconsistent with the unanimous judgment of this court. That section gives no power to question an arrested person, and does not make justifiable a delay which resulted only from the fact that the resting officer wished to engage in questioning.

Page 11328

Absolutely nothing prevents a New South Wales police officer from questioning an arrested person about the commission of an offence for which that person has been arrested. The doubt arises at the point where that person could be brought before a justice. Quite simply, any questioning conducted after that point could be interpreted as constituting a denial of the person’s freedom, and therefore any evidence adduced in that further questioning would be regarded as inadmissible. As I have already outlined, Williams’ case has created confusion for police throughout the country. It has required legislatures to clarify police powers, in the manner in which this House is addressing that issue today.

Of course, this is not the only Parliament to confront this problem. The most significant legislative measures were taken in the United Kingdom with the Police and Criminal Evidence Act in 1984 - the PACE Act. The key part of the PACE legislation relates to custodial detention and questioning. That is an issue paramount in the bill under discussion in this House. Like New South Wales, the United Kingdom prior to the PACE Act had no clear rules or guidelines on the criteria governing initial detention or continued detention where suspects were taken into custody; there was no time beyond which suspects could not be held before being charged. The charging procedure is the policing issue that I wish to address as a member of this Chamber, and I am pleased that the matter finally has surfaced before this Parliament.

At this point I should acknowledge the important role played by the honourable member for Eastwood in the framing of yet another piece of Government legislation. I am absolutely delighted to be standing in this place, representing the Opposition and supporting a piece of legislation that is quite simply our legislation. I am more than happy to support any legislative initiative introduced by the Government which results from the fine work of the honourable member for Eastwood. A lot has been said in the 11 years since the Williams case by successive governments about supporting police. It is pleasing that the issue is no longer being ignored. Before the honourable member for Eastwood raised this issue in the term of the current Government, the Hon. John Fahey presided over a government that examined the introduction of similar legislation.

That legislative proposal of the coalition had actually been passed by Cabinet. Unfortunately, the 1995 elections denied New South Wales police the opportunity to have this matter clarified for them. At the time of the 1995 elections I was the secretary delegate of the Gosford branch of the Police Association, and I spent considerable time lobbying Government members on this issue. Honourable members could not imagine how pleased I was when I was told that the matter had been passed by Cabinet, pending the approval of the Parliament, and then the disappointment I experienced when I realised that losing government in 1995 meant that that legislative initiative was lost.

The objects of the bill before the House are to enable police to detain a person following arrest for a maximum period of four hours or, if a detention warrant is obtained, a maximum period of 12 hours. The reason for detaining a person is to investigate that person’s involvement in the commission of an offence, as well as ensuring that the rights of that person are maintained and protected in the process. This guarantees that the integrity of evidence presented before a court is paramount, whilst ensuring the desire of the wider community that the system of law should operate in a manner that enables all possible evidence to be obtained.

During this debate concerns have been raised by the Police Association on behalf of those who have to enforce the legislation, namely the New South Wales police. One of the concerns raised by the Police Association relates to the application of time-outs pursuant to proposed section 356F, which relates to detention pursuant to a detention warrant. A further concern raised by the association relates to the adequacy of the 12-hour time limit placed on detention where police are conducting complex investigations. The Opposition puts on record that in Committee it will move an amendment allowing for time-outs pursuant to proposed section 356F where search warrants are concerned.

Further, it is important to place on record the views of the Police Association, myself and other members of the coalition with whom I have spoken that there should be a review of this legislation, preferably within the first 12 months of its operation, to ensure that any inadequacies related to the time-out provision or the effectiveness of the 12-hour limit can be reviewed. In that respect I refer to proposed section 356Y. It is important that the Government be aware of these concerns expressed by the Police Association. The Opposition hopes that the Government will take on board those concerns and the concerns of the Opposition and agree to a review to determine whether there is need to extend the 12-hour limit in special circumstances.

I remind honourable members of the investigations relating to the backpacker murders. Exhaustive interviews were conducted with Ivan Milat and others. In another case, it took me six months to put the case together before charging a
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young lass with 1,200 counts of Bankcard fraud. Those individual matters were not dealt with by way of schedule; each was the subject of an individual charge, with each supported by individual sets of facts. That procedure required me to interview the offender on a number of occasions over a period of weeks, or even months. The amendment that the Opposition will propose is realistic and fair. Further, the Opposition asks the Government to consider the review process pursuant to proposed section 356Y to include review of any inadequacy regarding the 12-hour detention limit.

Reverend the Hon. F. J. NILE [3.36 p.m.]: Call to Australia is pleased to support the Crimes Amendment (Detention after Arrest) Bill. The bill provides for the maximum period of time that a person under arrest may be detained by police for the purposes of investigating the person’s involvement in the commission of an offence and for the rights of the person so detained. The reason behind the bill relates to a decision of the High Court. Prior to that High Court decision, the understanding was that police were required to take an arrested person before a justice as soon as practicable. In 1986 the High Court, in the case of Williams v The Queen, ruled that the term "as soon as practicable" meant "without delay". Accordingly, at common law, it is now unlawful for police to detain a person, even for a brief time, in order to question that person or to carry out any other form of investigatory activity. The High Court observed that this rule "does nothing to assist the police in the investigation of criminal offences".

This matter highlights what I think are ridiculous decisions made from time to time by the High Court and why there must be consideration at a Federal level of some means of appeal against such High Court decisions. This seems to be a classic case of a ruling being made which clearly did not assist police. Put another way, it prevented police from carrying out their duties. That is a ridiculous situation. The police, in line with their normal practice, basically have ignored that High Court decision, and that has enabled defence lawyers to argue that an arrested person had been kept under unlawful detention, an argument which if successful may affect the successful prosecution of a case. This bill will rectify that position.

The Hon. M. J. Gallacher, being a highly experienced former police officer, is more aware of these matters than I am but, from my reading of newspapers, even in recent days, I noted the circumstances of the investigation of the disappearance of a small child in the Moe area of Victoria. There, police had been questioning for up to eight hours the de facto partner, obviously in the hope of finding some gap in his recollection of what had happened in what I understand was a crucial two-hour period, for which the police have not yet been given a satisfactory explanation. The two-hour gap may be the time during which the child was murdered.

We cannot criticise the police for persistently questioning persons in order to test the story that an arrested person may have contrived, even in concert with another person, to avoid conviction. I note that in the investigation of the kidnapping of Mrs Whelan police have been questioning a person extensively. They have said that that person is not a suspect, but they have spent a great deal of time on his property. I believe they are still searching abandoned mines and so on in that area. At this stage it would appear that if the police succeed the tragedy will be that the body of Mrs Whelan will be found. Many hours have been spent by the police on the property of this person who is not officially classified as a suspect.

In the case of the backpacker murders, Ivan Milat spent many hours under police questioning. In passing legislation this Parliament must be careful not to restrict the police in their duty. At this stage the bill allows for detention for questioning for four hours, with provision for an additional eight hours in certain circumstances, and that total of 12 hours should be sufficient. I imagine it is possible for the police to call the person back for further questioning on another occasion. I have received a submission from Mr Greg Chilvers, Director, Research and Resource Centre, Police Association of New South Wales, dated 26 June which states:

I refer to the Crimes Amendment (Detention After Arrest) Bill 1997. The Association has had the opportunity to peruse this bill and in general recognises that the bill is a significant attempt to address the concerns raised by the High Court in Williams’ case. There remains however, two areas of concern to the Association in regard to this bill.

1. Section 356F(l) should be amended to read

"anytime that is reasonably required to prepare, make and dispose of any application for a detention warrant or search warrant."

I understand that amendment is to be moved by the Hon. M. J. Gallacher and Call to Australia will support the amendment. The letter further states:

Whilst the execution of a search warrant should reasonably be considered as part of the investigation period, the application process, particularly outside of normal working hours, can be lengthy.

2. The Association is concerned that there may arise matters of the complexity of the Ivan Milat case or the Anita

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Cobby case (in which there were multiple offenders) where extensions beyond the 12 hour period may be necessary. Such extensions should be granted only on application before a superior court, either the District Court or the Supreme Court. This would require a significant rewriting of section 356G.

The Association would appreciate your support in attempting to gain the appropriate amendments to the above legislation. The broad direction of this legislation was supported by the Police Royal Commissioner in his final report to the Government.

Apparently the Opposition does not propose to move the second amendment that the association requested. I certainly have not drafted an amendment in those terms, but I trust the Government might give some consideration to extreme cases that might warrant further extensions of the detention period, particularly in cases involving multiple offenders. In order that offenders are protected, such extensions should be granted only on application to the District Court or the Supreme Court. I urge the Attorney General to consider the proposal from the Police Association. Call to Australia supports the bill.

The Hon. I. COHEN [3.43 p.m.]: I do not support the Crimes Amendment (Detention after Arrest) Bill. The Greens oppose the bill because it has been introduced quickly and there has not been sufficient time to consult with various interest groups, including the Law Society, Bar Association, Council for Civil Liberties, Justice Action, Tim Anderson and Professor David Dixon - an expert in this area of law - that have all expressed an interest in this bill. I have not had time to consult with those groups. The Greens were informed that the bill was not to be dealt with until next session and that message has been conveyed to those organisations and people.

The Greens had approximately 30 preliminary amendments to the draft bill and were awaiting for the final bill to surface so that those amendments could be sent to Parliamentary Counsel. That opportunity has now been lost. Last night the Greens received what was thought to be a final edition of the bill, yet the relevant version of the bill arrived in my office only one hour ago. This lack of consultation is very annoying and frustrating, particularly as I am the only Green member in this House. I have a responsibility to know what legislation is to come before the House, but so much legislation has been rushed through in the last few days, including the late introduction of this bill, that it amounts to a breach of trust in my dealings with the Government.

According to Tim Anderson the main problem with this bill is the extent of police powers. Despite the rhetoric, the bill provides suspects with no substantial rights. That is critical because of the potential for unreliable confessions - confessions being the prime objective of detention - which increases with time in police custody. Videotaping has not solved this problem because of threats, inducements and alleged confessions outside the videotaped period and a lack of access to independent legal advice.

The Greens have received correspondence from the Bar Association that is concerned with the definition of authorised justice because it is too broad. The definition should be limited to magistrates and could be extended to judges. It is simply inappropriate for a Justice of the Peace to be empowered to make such a decision affecting the right to liberty. That such a person is empowered to authorise a search warrant does not justify the proposed extension in police detention.

The Greens office has received a letter from the Law Society regarding the bill. The society points out that the Law Reform Commission made important recommendations in its report entitled, "Police Powers of Detention and Investigation after Arrest". The Law Society states that the bill should be amended to include protections for vulnerable persons, that is, persons under 18 years of age, Aboriginal and Torres Strait Islanders, persons of non-English speaking background and persons with physical or intellectual disabilities or those who are mentally ill.

Pursuant to sessional orders business interrupted. The House continued to sit.

The Hon. I. COHEN: As I was saying, for these vulnerable people detention should be for no more than two hours. There should be a requirement that at interview a friend, that is, a parent, guardian, legal representative, responsible or independent person, be present during all investigative procedures. If the person is Aboriginal or a Torres Strait Islander police must inform the Aboriginal Legal Service. In short, the Greens are very displeased with the bill and equally displeased that we have had insufficient time to act appropriately on this bill. As the bill will have serious consequences for people’s rights and liberty, and justice generally, the Greens strongly oppose the bill.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [3.47 p.m.], in
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reply: I thank honourable members for their contributions to the debate. Despite the dissenting voice of the Hon. I. Cohen, there is general acknowledgement that since 1986 the law has been unsatisfactory in this area. There is not much scope for political point scoring in this debate. In the light of Williams case in the High Court the law ought to have been revised. That case is fine in theory. But, as everyone knows, the idea of no time for detention prior to bringing an accused person before a justice or before a court is theoretical: it is a concept honoured more in the breach than in the observance. When the criminal law is customarily not being observed, surely there is a case for reform. This bill focuses our minds on the need for that reform.

Over the years debates have occurred in criminal cases as to whether admissions or alleged admissions which have been obtained in breach of the doctrine of Williams case ought to be admitted. In that regard judges have a discretion as to whether to admit material which has been unlawfully obtained under the doctrine of Bunning v Cross. My advice is that regularly, notwithstanding the taint of illegality, the confessional material has been admitted. In short, all of that is unsatisfactory. I apologise to the Hon. I. Cohen about any administrative errors or crossed lines of communication which may have occurred. I suppose it is inevitable at this stage of the parliamentary process that, from time to time, there is some element of ambiguity as to whether or not a measure will proceed. I apologise to the Hon. I. Cohen if any communications to his office were regarded as misleading in this respect.

Ordinarily, it is appropriate that honourable members have adequate time to consider measures of this importance. I say, however, in extenuation, first, in April this year a draft bill was put out for public discussion and consideration. A wide variety of interest groups received copies of the draft bill dealing with this matter. We received and took on board a lot of input from the police and other bodies. That led to a revision of the bill, which was not fundamental but which I think can fairly be described as finetuning or modest adjustments to the provisions of the bill. Second, the Royal Commission into the New South Wales Police Service not only mentioned the need for this legislation but urged its enactment. This Government, as a responsible government, was bound to give proper consideration to the royal commissioner’s recommendations.

I am pleased with this legislative package, which has an element of balance. It compromises the things that must inevitably be compromised. Specific concerns have been raised with me by the Hon. I. Cohen. In summary, his concerns relate to the difficulty of vulnerable people and whether special rules and regulations ought to be made in respect of vulnerable persons, in particular, persons under the age of 18 years. I include in that a number of other groups of people who may not be able to deal with police questioning in the way that other members of the community can. I indicated in my second reading speech that this question concerning vulnerable people should be the subject of a regulation. I have also indicated that there should be appropriate and widespread consultation on the formulation of that regulation.

The Hon. I. Cohen indicated that relevant interest groups should be allowed to see a draft regulation which should be circulated for discussion and the like. That would be an appropriate process. A bill would not be brought into force and effect until that regulation had been formulated. So there will be a modest period of delay in bringing the bill into force and effect, although it is nonetheless useful that we are able to deal with it today. That can be done during any ensuing parliamentary recess. Essentially, those are the points that I want to make in reply to debate on this bill. I thank honourable members for their general support for the bill and commend it to the House.

Motion agreed to.

Bill read a second time.

Schedule 1

The Hon. M. J. GALLACHER [3.56 p.m.]: I move:

Page 12, Schedule 1[4], proposed section 356F, line 25. Insert "or any application for a search warrant that relates to the investigation" after "warrant".

All honourable members recognise that important legislation such as this which involves the New South Wales Police Service must be continually reviewed. This amendment, which is based on a degree of fairness, will assist police in their operational ability. We can no longer delay any revision of this legislation. I will explain the reason for this amendment to give honourable members an idea of the direction in which the Opposition is going. Concern has been expressed in relation to this legislation by the New South Wales Police Association, which is committed to ensuring that it operates in a way that will benefit members of the Police Service and assist them in the job that they have to do.

Page 11332

I am not being facetious when I say that no-one in this room, other than me, has taken out a search warrant or conducted a search. I have some knowledge of search warrants. Once a search warrant has been applied for, a tremendous amount of pressure is placed on a police officer to ensure that the information that he or she has is correct and that the execution of the search warrant obtains positive results. The provisions in this legislation will place more pressure on police officers conducting searches. All honourable members hope that, as a result of the police reform process, New South Wales will have the best police service in the Southern Hemisphere. With that in mind, why does the Government continue to create barriers which make the job of police officers even more difficult?

The Opposition wants included in the legislation a time-out provision relating to search warrants. It would not take a police officer very long to conduct a search of a one-bedroom flat in the eastern suburbs of Sydney. However, police officers often have to conduct searches of large properties. Sometimes they are looking for firearms, drugs or other evidence that they know are on the property but they do not know exactly where. If this legislation is not amended police conducting searches will have to be mindful of the fact that the time is ticking away. Police officers who have an offender in custody might have to wind back a search because they still have to take an offender to the police station and conduct inquiries in relation to that offender. It is important that this amendment, which is based on practicalities of need, receives due consideration, and the Opposition urges the Government to do just that.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [4.00 p.m.]: I have been impressed by the oratory of the Hon. M. J. Gallacher. There is no doubt that honourable members have just listened to a future leader of the Liberal Party. His argument is a cogent one, based on experience. It is hard to quibble with that sort of argument, which is based on reality and knowledge of what is going on out there in the real world. It is good to have the benefit of such practical experience in this Chamber. It must be said in all candour that the Government’s view on this amendment is coloured by the exhaustive negotiation process that has taken place in trying to forge an appropriate balance between the legitimate rights and needs of police to investigate crime and the rights of suspects not to be unduly subject to detention.

Throughout this lengthy and exhaustive negotiation process - I will not say difficult process because it has been amicable - the Government has tried to forge a balanced or middle position. I certainly do not mean to be critical, but the honourable member has come along with another suggestion that seeks, as it were, another element of power for the police, which the Government considers to be inappropriate. Based on instructions I have received and the background of that negotiation process, I am not in a position to support the amendment, but I appreciate what has been said in support of it.

I put forward a number of cautionary arguments. Based on the precedent of this amendment, it would be wrong for anyone to suggest that time taken to investigate should always be time out from the investigation period. It is a circular argument. One cannot say that simply because something is part of an investigatory process therefore time out should occur. Such a situation would defeat the whole purpose and the balance of the bill. It is also difficult to see a distinction in principle between search warrants and, for example, listening device warrants. One simply has to draw an appropriate middle line.

The Government’s view is that it would be a very rare case indeed that a problem would arise with a search warrant taking time. For example, search warrants can be sought before arrest. That is just one example of how police can deal with these matters without the administrative time taken to seek a search warrant counting as time for the purposes of the specification of time in this bill. In short, the Government acknowledges the argument that has been put, but for the reasons I have explained it cannot support the amendment. I would like to add one observation that I omitted to make in my reply to the second reading debate. Reverend the Hon. F. J. Nile signalled his concern about those exceptional cases in which there might be some justification for a time greater than 12 hours. I am content to indicate that that element - no doubt together with others - could be appropriately considered during the review process contemplated by the bill. Some people will argue that the bill tilts too far in favour of police rights. That issue could also be reviewed. But the particular concern of Reverend the Hon. F. J. Nile about those exceptional cases could also be part of the series of measures that will no doubt need to be reconsidered during the next year or so as the bill takes effect.

Amendment agreed to.

Schedule as amended agreed to.

Bill reported from Committee with an amendment and passed through remaining stages.

Page 11333

Schedule 1

The Hon. M. J. GALLACHER [4.09 p.m.], by leave: I move Opposition amendments Nos 1 and 2 in globo:

No. 1 Page 3, Schedule 1, line 6. Insert ", stalks, harasses or intimidates" after "assaults".

No. 2 Page 3, Schedule 1, line 8. Omit "by the assault". Insert instead "to the officer".

With regard to amendment No. 1, the introduction of the words "stalks, harasses or intimidates" and the Opposition’s position in relation to the amendment are self-explanatory. The Opposition has consulted the Government in relation to the amendment and believes that up until this point it has received the Government’s support. The inclusion of the word "stalking" is self-explanatory. With regard to the word "harassing", one has only to read what is happening in Cabramatta following the murder of Senior Constable Carty to realise that police are the victims of harassment. I have toured extensively the country towns of New South Wales, and the reality of threats against police is apparent. The problem has arisen because police work in the same town in which they live. Police may not be the direct victims of threats, but their wives and families are. Their wives shop in the town in which their husbands work, and their children go to the same schools in the same towns as the children of suspects or criminals.

Over the years anecdotal evidence has shown that people are prepared to confront authority. These amendments will provide protection for police throughout New South Wales and allow them to get back on the streets to do the job we want them to do. Amendment 2 provides that an assault does not necessarily have to occur for an offence of stalking, harassing or intimidating to be committed. The Opposition is of the view that these amendments make the legislation easier to understand.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [4.11 p.m.]: The Government supports the amendments, which will insert some additional words and concepts in the lowest level of offence contemplated by the bill, that is, the offence with a maximum term of imprisonment for five years. Initially it was suggested that threats against the police should be encompassed in that proposition. However, that would create legal difficulties. In any event, threats that cause police to fear the immediate infliction of unlawful violence are covered by the common law definition of assault. Consequently, police officers are protected against threats which cause them to fear violence.

The concepts of stalking, harassing and intimidating already attract significant penalties. The Government believes that the proposed additions are not out of kilter with the broad structure of the criminal law in so far as it protects both citizens and police officers. Therefore, while the amendments may not make a great deal of practical difference in terms of sentencing for these unfortunate crimes when and if they occur, they give an appropriate signal to the community that police officers have a special role and special responsibilities and are entitled to special protection in the criminal law. For many years the Crimes Act has acknowledged the differentiation between police officers and other citizens in terms of maximum penalties that can be imposed for offences against sworn constables.

Amendments agreed to.

Schedule as amended agreed to.

Bill reported from Committee with amendments and passed through remaining stages.

Consideration of Legislative Assembly’s message of 19 June.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations), on behalf of the Hon. M. R. Egan [4.16 p.m.]: I move:

That this House refers to the Committee on the Independent Commission Against Corruption the following matters in connection with the second report of the Independent Commission Against Corruption of its investigation into circumstances surrounding the payment of a parliamentary pension to Mr P. M. Smiles (April 1996) ("the second report"), for inquiry and report:

(i) the options set out in the Second Report for amendment of section 13A(e) of the Constitution Act 1901 which provides for vacation of a member’s seat where he or she is attainted of treason or convicted of felony or any infamous crime;

(ii) whether the grounds for vacation of a member’s seat set out in s.13A(b) ("allegiance to a foreign prince") and s.13A(d) ("public defaulter") should be reviewed in light

Page 11334
of contemporary standards and circumstances and if so, the options which are available for their amendment;

(iii) whether s.13A(c) ("becomes a bankrupt") gives rise to similar problems to those identified by the ICAC in relation to s.13A(e) because of the existence of appeal rights or the possibility of a bankruptcy being annulled; and

(iv) the ICAC’s recommendation in the second report that section 70 of the Parliamentary Electorates and Elections Act 1912 be amended to ensure that in all cases the reason for a vacancy in a seat in the Parliament be determined and stated by the relevant House or its principal officer.

The Hon. J. H. JOBLING [4.17 p.m.]: The Opposition supports the motion.

Motion agreed to.

Message forwarded to the Legislative Assembly advising it of the resolution.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [4.18 p.m.]: I move:

That this House at its rising today do adjourn until Tuesday, 16 September, 1997 at 2.30 p.m. unless the President or, if the President is unable to act on account of illness or other cause, the Chairman of Committees will, prior to that date, by communication addressed to each member of the House fix an alternative date and/or hour of meeting.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [4.20 p.m.]: I wish to move an amendment to the motion that if during the course of the adjournment there is need for the House to be recalled and the majority of members of the House desire that to occur, that opportunity will be available to the House. I move:

That the question be amended by the addition, at the end, of the following paragraphs:

(2) Notwithstanding the above, the President, on receipt of a request by a majority of the members of the House that the House meet at an earlier time, must by communication addressed to each member of the House fix a day and hour of meeting in accordance with the request.

(3) For the purpose of paragraph (2), a request by the Leader of any recognised party or group is to be deemed to be a request by each member of that party or group.

(4) A request may be made to the President by delivery to the Clerk of the House, who must notify the President as soon as practicable.

(5) In the event of the absence of the President, the Clerk must notify the Deputy President, or if the Deputy President be absent any one of the Temporary Chairmen of Committees, who must summon the House on behalf of the President, in accordance with this resolution.

Amendment agreed to.

Motion as amended agreed to.

The Hon. M. R. Egan tabled the third report of the Council on the Cost of Government, dated June 1997.

Ordered to be printed.

The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council) [4.22 p.m.]: I move:

That this House do now adjourn.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [4.22 p.m.]: In the adjournment debate last night the Hon. C. J. S. Lynn complained of my observation as recorded in the Hansard record of 25 June 1997 to the effect that the honourable member had denigrated Macquarie Fields High School over the years. Whilst I do not resile from my general or specific observations of the approach of the honourable member to this issue - he does appear, as I asserted yesterday, to have famously applied a pejorative label to the Macquarie Fields housing commission in 1994 - I accept that there is no evidence for the assertion of prior denigration of the school. Accordingly, I unreservedly withdraw the allegation and apologise to the Hon. C. J. S. Lynn.

The Hon. C. J. S. LYNN [4.23 p.m.]: In an adjournment speech to the House early last week I stated that local Australian Labor Party Councillor Paul Blyton and his factional Labor colleague the
Page 11335
Hon. P. T. Primrose were trying to dig up some dirt on me in an attempt to run a grubby little story in the local media.

[Interruption]

The PRESIDENT: Order! The honourable member may well be touching on a delicate subject, and I want to hear what he says rather than the interjections of members.

The Hon. C. J. S. LYNN: The Macarthur Advertiser was the only local paper to run parts of the story this week. Blyton tried to add a sinister twist to the story by referring to a "leaked" document revealing my sources of income. I assume that the leaked document is the pecuniary interests register of the New South Wales Parliament. This is a public document and I assume that, rather than being leaked, it was passed on to him by one of his Labor parliamentary colleagues. The register does not have to show how members spend their income, but as Councillor Blyton is so interested in my personal affairs I will save him the effort of creeping around the corridors like a bloated cockroach and put it on the record.

My defence force pension is the superannuation I receive from my 21 years in the army. Under a compulsory superannuation fund I was required to contribute 5.5 per cent of my salary for 21 years. I now receive a small monthly pension as a result and it helps to pay the mortgage I have on our family home. I sometimes receive fees for professional speaking engagements through Charlie Lynn and Associates. Now that I am a member of Parliament I contribute most of those fees to charity, and have donated funds to the hydrotherapy pool at the Mary Brooksbank School for disabled youth and to Youth-in-Search, an organisation for disadvantaged youth.

[Interruption]

The PRESIDENT: Order! The Chair has had enough of constant interjections in the House and will start calling members to order if it does not cease.

The Hon. C. J. S. LYNN: I have not made any substantial profit from Adventure Kokoda, as I pay all the costs of disadvantaged kids from Youth-in-Search to attend my programs and I heavily subsidise junior leaders from the Young Liberal movement. If the fact that I take Young Liberals up to Kokoda so upsets Councillor Blyton, I suggest that he get off his backside and take his Young Labor colleagues up there. I would offer a word of caution, however: there are no cappuccino machines in any of the villages up there. Blyton also attacked my involvement with Kokoda for "political gain", and called on me to stop exploiting and abusing such a sacred place.

The PRESIDENT: Order! I call the Hon. Jan Burnswoods to order.

The Hon. C. J. S. LYNN: These treks, which I led well before I got involved in politics, have resulted in a $40,000 scholarship to the Australian Rural Leadership program for one of my Aboriginal participants, a $5,000 fund-raiser for the Tamworth youth centre, a $3,000 fund-raiser for the Heart Foundation, an education fund for Papua New Guinea students from villages along the track, a young Papua New Guinea youth from Alolo village being brought to Sydney for a major operation, a school being built in Menari village, and educational books and sporting gear for each of the village schools along the Kokoda Track. I regard Councillor Blyton’s attempt to smear my involvement with Kokoda as being cowardly and contemptible.

Until now I have never had a quarrel with Councillor Paul Blyton and I have never provided him with any reason to work so hard to discredit me. I can only assume that he is doing the dirty work of some political cockroach who does not have the courage to get his own hands grubby. The burglary has had a devastating effect on my wife, who is now not able to stay alone at home overnight. It has cost me a great deal of money to upgrade my security. I stated in my previous adjournment speech that the burglary was the work of professional people. But, if they were professional thieves, they made some fundamental errors of judgment. As a result of those errors, I have come to the conclusion that the burglary was politically motivated.

Given Councillor Paul Blyton’s sudden interest in my personal affairs from approximately two weeks prior to the burglary, I can but wonder at the coincidence of his attempts to run a grubby story with "leaked" parliamentary documents and an attempt to get a story up on my challenging Dr Liz Kernohan for the seat of Camden on the day of the burglary. If there is anything more than coincidence in all of this, I would suggest to Councillor Blyton that he back off and get his close factional Labor mate the Hon. P. T. Primrose - a parliamentary cockroach if ever there was one - who obviously does not have the intestinal fortitude to do his own dirty work.

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The Hon. ANN SYMONDS [4.28 p.m.]: I am pleased to inform the House of my attendance at the eighth International Conference on the Reduction of Drug Related Harm. The conference was held in Paris in March this year. The conference provided a forum for a distinguished group of internationally recognised speakers to explore a broad range of approaches to drug misuse, a problem with particular relevance to New South Wales given the recent revelations of the Wood royal commission. I attended the conference in my capacity as co-convener of the parliamentary group for drug law reform and member of the Australian Drug Law Reform Foundation. I paid my own expenses for travel and accommodation and conference fees. The conference was attended by more than 1,000 delegates representing countries in Australasia, central Asia, Europe, the Middle East and the Americas. I was pleased to learn that a grant from the International Harm Reduction Association enabled delegates from the developing world to attend also. I am sure that honourable members recognise the importance of this, given the incidence of AIDS and drug use in Third World nations.

The papers presented covered topics such as harm-reduction strategies, including needle exchange programs, methadone use and heroin prescription trials; social costs of drug use, including homelessness, poverty and crime; law enforcement costs; women and drugs; health consequences of drug use, including HIV and AIDS and hepatitis, especially hepatitis C; drug education programs; young people and drug use; and drug use in prisons. The conference was attended by academics, politicians, policy makers, health professionals, drug users, and families and friends of users. The conference heard from leaders of the debate on options for the reduction of drug-related harm. Dr Ethan Nadelman, Director of the Lindesmith Center in the Unites States of America, spoke passionately on the impact the illegal drugs trade is having on our community, and in particular on our young people.

Dr Nadelman urged governments to recognise the problem as a social and health problem, and not just a matter for the police. He told us about the terrible failure of drug laws in America and the $9 billion spent annually on drug law enforcement. Despite this, 59 per cent of high school students in the United States use marijuana. It was chilling to hear those facts in light of our own drug law policies. Dr Nadelman advised those of us from countries not so far down that path to learn from the American experience and explore the alternatives to prohibition. Other speakers included Anne Coppel, Director of Emergence Espace Tolbiac, Paris; Annie Mino, Director of the drug division of the Department of Public Health in Geneva; and Brian McConnell, a founding member of the Families for Drug Law Reform, Australia.

I attended the sessions which examined the Swiss heroin prescription projects. Dr Robert Haemmig, who is currently in Australia to report on the latest findings of the project, told the conference of the Swiss Government’s approach to the damaging effects of drug misuse. Though the Swiss Government’s major aim is to discourage people from taking drugs and to encourage them to adopt a healthy lifestyle, the Government acknowledges that more affirmative action is required. Out of a population of 7 million, 30,000 are dependent on illegal narcotics. The mortality due to drug-related problems is around 350 to 400 deaths a year.

As Dr Haemmig explained, the Swiss heroin prescription projects are clinical studies of medically prescribed heroin to 800 severely dependent drug users. The aim of the study is to investigate the feasibility of prescribing drugs for drug users as a treatment approach, as well as to improve the health of those who are drug dependent, with an ultimate aim of eliminating the consumption of illegal drugs. The study also seeks to evaluate whether such a program can be useful in improving the health and social conditions of participating drug users. To be eligible for the program, the drug user was required to be over 20 and have a minimum of two years heroin dependency with daily use, and at least two unsuccessful therapeutic treatment attempts.

The social characteristics of these participants in 1995 were an average age of 31 years; 41 per cent lived in unstable and unsatisfactory accommodation; 81 per cent were unemployed; 53 per cent admitted to illegal income; 61 per cent were in serious debt; the average duration of heroin dependency was 10 years; 85 per cent had previous criminal detentions; and 60 per cent have had other treatments. Overall, the program reached a group of heroin users with a long history of dependence, a wide range of health and social deficits, whose criminal records and need for treatment were above average.

The first of these projects began in January 1997. In all there are 17 projects in 16 different cities. Preliminary findings are most encouraging.
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Following the introduction of the program, there has been a reduction in the proportion of certain crimes, such as burglary and robbery, which are usually attributed to drug users. The proportion of burglaries attributed to drug users fell from 51.3 per cent in 1992-94 to 35 per cent in 1995. For robberies there was a similar decline of 38.8 per cent in 1992-94 to 19 per cent in 1995. Overall, the study found that participants partaking in criminal activity dropped from 53 per cent to 13 per cent. In addition, daily cocaine use dropped from 34 per cent to 9 per cent and the rate of homelessness dropped from 15 per cent to 3 per cent.

Of those who began the program, 67 per cent remained in the program for at least 15 months. Also, about 10 per cent of those who left the program became drug free. I am sure honourable members would agree that these results are a promising indication of the success of the medical prescription of heroin to dependent drug users and, in particular, a positive step forward in reducing drug-related crime. As I said, one of the architects of the program, Dr Robert Haemmig, is currently in Australia to discuss the trial. He says that new information on the Swiss trial is expected to be revealed on 12 July. I look forward to more encouraging results.

The Hon. HELEN SHAM-HO [4.33 p.m.]: I place on record my delight with the historic occasion of the transfer of sovereignty of Hong Kong to China on 1 July 1997, after 100 years of British rule. The Chinese people have always considered that the ceding of Hong Kong to Britain was a humiliation to China after losing the Opium War in 1843. As I understand that part of history, opium traders from different European countries, particularly Britain, wanted to balance their trade, as they were exporting lots of tea and silk out of China. It is regrettable that the harmful drug, opium, was forced upon the Chinese people at that time.

As a person of Chinese descent who was born and raised in Hong Kong, I appreciate that today in this House notice was given that a motion was to be moved in relation to the transfer of Hong Kong to China. I shall be going to Hong Kong for this significant occasion. The expenses will be paid by my husband. I am looking forward to it, particularly after the long sitting hours of this House for the past two weeks. Being in Hong Kong will give me a sense of history. I hope that after the transfer, Hong Kong will remain unchanged for 50 years, as agreed in 1984 by the Chinese Government. The proposal of one country with two systems by the late Deng Xiaoping has been accepted optimistically by the people of Hong Kong and other concerned people. It is recognised that Hong Kong will be able to continue to enjoy a degree of political, cultural and economic autonomy.

It has been acknowledged by most people that the proposed reforms of the Hong Kong Governor, Chris Patten, fit within both the spirit and the strict letter of the agreement made between China and Britain and that they are important reforms in line with the promise of autonomy, stability and prosperity for Hong Kong. I am sure no-one, including the Chinese Government, would wish to kill the goose that laid the golden egg. Hong Kong will become the Hong Kong special administrative region from the time of the changeover on 1 July.

Previously in this House I expressed my concerns over the future of Hong Kong in relation to civil, legal and political issues. I am especially disappointed that the "through train", a graphic description of continuity in politics, the judicial system, administration and commerce, was derailed. I deplore the Chinese Government for having set up a second Legislative Council, meeting in Shenzhen at a time when the democratically elected Legislative Assembly ostensibly had authority. I gather from media reports that harsh laws have been put in place to commence on 1 July 1997 to curb the civil and political rights of the Hong Kong people. No doubt democratic freedom and protection of human rights will be restricted. China will be the new sovereign power and Hong Kong will be affected. The fate of Hong Kong will be governed by the changing political and economic landscape of China. However, the future of Hong Kong will also depend on the administration of the Chief Executive of Hong Kong, Mr Tung Chi Wah. Let us hope that Hong Kong’s stability and prosperity will continue.

Reverend the Hon. F. J. NILE [4.36 p.m.]: As part of my adjournment speech I wish to quote a timely and important motion that earlier today I gave notice that I would move. It reads:

That this House on the occasion of the historic return of the British colony of Hong Kong to the sovereignty of the Chinese nation expresses its sincere regrets for the actions of the European colonial nations, which brutally forced the harmful drug opium on the people of China resulting in the Opium wars and the unjust humiliation of the Chinese nation.

As honourable members know, the Opium War of the 1830s began when China objected to traders
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bringing in opium. I understand that five European powers joined together to force the then imperial Chinese Government to surrender.

The PRESIDENT: Order! The honourable member is anticipating debate on a motion of which he has given notice. However, the Chair has a discretion in these matters in the likelihood or the unlikelihood of the motion ever coming on for debate. Therefore, I allow the member to continue.

Reverend the Hon. F. J. NILE: Thank you, Mr President. I should have said that the motion has been withdrawn as it would not have been possible to gain the support of all members of the House. The Government said that it would support the motion but the Opposition contacted the Commonwealth foreign affairs department and Mr Downer was quoted as giving advice that the motion should not proceed as it might cause some diplomatic incident or cause some problem in Hong Kong. Can honourable members imagine this Legislative Council being on the agenda on the occasion of the transfer of Hong Kong sovereignty to China? That was the reason I was given. I could not move the motion without leave; I could not get leave so I am speaking to the motion in the adjournment debate.

My main concern was not so much to speak about the historic return of the British colony of Hong Kong to the sovereignty of the Chinese nation but to focus on the opium drug war, which was supported by western nations, and the fact that those nations did not stop the flood of the harmful drug opium into Chinese society. It became clear to the Chinese authorities that opium was destroying the heart, soul and health of Chinese people. Opium dens flourished. Honourable members have probably seen photographs or illustrations of opium dens with addicts smoking opium while lounging on couches in a drugged state.

The opposition of the Chinese authorities, under ancient imperial reign, was justified. However, the Chinese population was in no condition to physically oppose the combined military force of the European colonial nations and suffered a humiliating defeat. This historic defeat is still current in the minds of Chinese people. Chinese schoolchildren are constantly reminded of the evil opium trade which was forced on their nation by western European nations. Those western nations, as far as I know, have never apologised for their actions. My wife and I visited China and were there for almost two weeks. We saw schoolchildren being taken through an exhibition about the opium wars. The opium trade is referred to in classrooms and children are reminded of what happened in those days. I warn honourable members that heroin shooting galleries are the modern equivalent of the Chinese opium dens. We need to give serious consideration to that.

Finally, there has been controversy about the transfer of Hong Kong to the Chinese nation. China, which has sought limited adoption of free enterprise to stimulate its economy, is governed by a communist government. I note that more than 12,000 Chinese soldiers will replace the 1,000 British soldiers now stationed in the territory, and that makes Hong Kong citizens very nervous. The cancellation of democratic elections and the appointment by China of a hand-picked Legislative Council has also aroused loud protest rallies calling for the restoration of democratic elections. These alarming developments raise the question whether Britain should have granted Hong Kong independence as a city nation, on a similar basis to that of the city nation of Singapore.

The Hon. JAN BURNSWOODS [4.41 p.m.]: I record my pleasure at the progress over the past few months towards a resolution of the longstanding battle over the Iron Gates site near Evans Head. Honourable members may be aware of Mr Al Oshlack, who deserves the gratitude of those who care about the survival of areas of great natural beauty and environmental significance along the coast. Al Oshlack had a court victory which effectively put a stop to that longstanding sore: the attempt to form a massive residential development at Iron Gates.

In opposition Labor attempted to stop that development, where construction of a road had destroyed a wetland and a koala habitat, and had damaged an estuary. It was a glaring example of coastal development which should not take place. Since the time Labor came to office, both the Minister for the Environment, Pam Allan, and the Minister for Urban Affairs and Planning, Craig Knowles, have done their best to try to heal that damage. We all owe a debt to Mr Al Oshlack for the long fight that he and other supporters in that area put up to save, for all the people of New South Wales, one of the last remaining important wetland areas on the coast.

The Hon. J. F. RYAN [4.43 p.m.]: I comment briefly on the motion, which has been withdrawn, relating to the opium trade in China of which Reverend the Hon F. J. Nile gave notice. I express
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my concern about the form of that motion. No-one would deny that the opium trade that took place in the 1830s and 1840s was one of the low points of human existence. Nevertheless, some complicating factors would suggest that the caricature that opium was forced on the Chinese by the British Government is not historically accurate. From the eighteenth century opium was used by the Chinese for pain relief and for euphoria.

The opium trade certainly was a factor in the opium wars, but there were broader issues, including the rights of countries to trade into China. Further, diplomatic problems were experienced following a murder by a British sailor, which caused the British Government to be in conflict with the Chinese Government, the then celestial empire. Although that is not one of the most distinguished parts of British history, nevertheless there are complications arising from it which ought not be overlooked. The 1898 treaty by which Britain gained control of Hong Kong for 99 years was a reasonably mutually agreed arrangement under which the British wished to protect their trade and the Chinese were happy to enjoy British protection from potential threats from France and Russia and from emerging Japanese imperialism.

It is that treaty which is coming to an end on 1 July. In any event, whatever the historical complications, I agree with Reverend the Hon. F. J. Nile that regret ought to be expressed about the
opium trade. However, it is hardly in our best interests at this time, when there is genuine enthusiasm for the return of the New Territories to China on 1 July, for us to rake over the coals of events that occurred more than a century ago. It is more important to make sure that Hong Kong maintains the democratic traditions, legal system and rule of law which are now part of that colony and to make sure that people continue to live in the freedom that they have long enjoyed.

In Hong Kong many things have happened that are a credit to British rule. I am certain that the Chinese recognise that. Nevertheless, imperialism was not a great thing and there is overwhelming support on both sides of the channel for the return of Hong Kong to China. We all welcome the return of Hong Kong and wish China well. While honourable members may have agreed in part with the original motion of Reverend the Hon. F. J. Nile, I was concerned about some of its wording. I suggested a change, which the honourable member graciously agreed to. Had there been time, other arrangements permitting, those changes may have been included in the motion when it was moved. It is important to record some of the concerns of the Opposition about the motion.

Motion agreed to.

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