Full Day Hansard Transcript (Legislative Council, 4 September 2002, Corrected Copy)

LEGISLATIVE COUNCIL

Wednesday 4 September 2002
______

The President (The Hon. Dr Meredith Burgmann) took the chair at 11.00 a.m.

The President offered the Prayers.

TABLING OF PAPERS

The Hon. Michael Costa tabled the following paper:

Ordered to be printed.

BILLS UNPROCLAIMED

The Hon. Michael Costa tabled a list detailing all legislation unproclaimed 90 calendar days after assent as at 3 September 2002.

GENERAL PURPOSE STANDING COMMITTEE No. 2

Report

The Hon. Dr Brian Pezzutti, as Chairman, tabled Report No. 14, entitled "Quality of Care for Public Patients and Value for Money in Major Non-metropolitan Hospitals in New South Wales: Final Report", dated September 2002, together with transcripts of evidence, submissions, tabled documents and correspondence.

Report ordered to be printed.

The Hon. Dr Brian Pezzutti: I seek leave to make a statement about the report.

Leave not granted.

STANDING COMMITTEE ONSOCIAL ISSUES

Reference

The Hon. JAN BURNSWOODS [11.13 a.m.]: In accordance with paragraph 14 (2) of the resolution establishing standing committees, dated 25 May 1999, I wish to inform the House that the Standing Committee on Social Issues received on 3 September 2002 the following reference from the Attorney General, Minister for the Environment, Minister for Emergency Services, and Minister Assisting the Premier on the Arts:

MISCELLANEOUS ACTS AMENDMENT (RELATIONSHIPS) BILL

Second Reading

Debate resumed from 3 September.

The Hon. Dr BRIAN PEZZUTTI [11.14 a.m.]: I wish to speak briefly to the bill. As honourable members will remember, I amended the parliamentary superannuation bill when it came before the House in 1999. Unfortunately, the Hon. Jan Burnswoods totally misconstrued, confused and obfuscated the nature of those amendments. On the last occasion the proposed amendments received the complete support of the House. I moved the initial amendments and the Government then amended the remainder of the bill. The same procedures are required on this occasion. The definition of "spouse" should not be changed. "Spouse" should be defined as "husband or wife" and "de facto relationship" should be replaced with "spouse or de facto relationship". Reverend the Hon. Fred Nile and I have no objection to the definition of "spouse" that appears in the property bill.

Therefore, I support the amendments of Reverend the Hon. Fred Nile and I believe my colleagues do likewise. On an earlier occasion I made a significant contribution about the difference between "spouse" and "married person". In the interests of brevity I shall not repeat those comments, but I stand by every word I said on that occasion. Indeed, it is telling that the House accepted my views. I do not oppose the objects of this bill, which allow for commercial and other arrangements to be recognised in a fair and non-discriminatory way. I do not believe that this House should play with definitions that have stood the test of time. I say to the Parliamentary Counsel once and for all that the word "spouse" should be used to define a spouse, and that there can be a definition for de facto if it is required. However, the two cannot and should not be confused.

Ms LEE RHIANNON [11.17 a.m.]: The Greens welcome and support this bill, which is long overdue. It is clear that a number of Acts must be amended to recognise the human rights of people in same-sex relationships, and this bill goes some way towards remedying the situation. For far too long the law in New South Wales has discriminated against same-sex couples and against gay and lesbian members of our society in general. Indeed, that discrimination will continue despite the passing of this bill. Although the bill is a significant advance—and we congratulate the Government on it—a great deal remains to be done. Equal age of consent—which is also long overdue, as identified by other speakers—adoption rights and legalised discrimination are just three areas that must be addressed.

The Greens are very proud of being at the cutting edge of lesbian, gay, bisexual, transgender and intersex activism and law reform. In the 2001 Federal election the Greens fielded Australia's—and possibly the world's—first openly intersex candidate. Senator Bob Brown was the first openly gay member of the Australian Parliament. Giz Watson, MLC, I believe is the first openly lesbian member of the Western Australian Parliament. The Greens are proud to provide a forum and a voice for both activists and the lesbian, gay, transgender and intersex communities at large.

There can be no doubt that relationship rights are incredibly important to those in same-sex relationships. From my knowledge of couples with whom I am personally acquainted and those that I know from my time in the Greens and as a member of Parliament, I can honestly say that this is an issue that affects them very deeply. The law as it stands denies legitimacy to their relationship. The law treats their relationship, their loving lifelong commitments, as a fiction—indeed, as an aberration. And it is just not good enough. The law as it stands is an affront to the values of compassion, tolerance and human decency. So this is indeed a most important bill and a bill that the Greens are very happy to support.

However, we cannot let this legislation pass without a brief comment on the state of law reform in New South Wales. The existing inequality in the legal age of consent for gay men is a shameful blot on our legal landscape. It is disgraceful that in the year 2002 the State of New South Wales still discriminates against gay men in this way. The Greens are very disappointed that the Government has failed to resist the pressure from the right wing and the homophobes. It beggars belief that the Labor Party in New South Wales appears to lack the courage to tackle an issue so morally straightforward as the age of consent.

I am of course aware that the Hon. Jan Burnswoods has brought forward a private member's bill to address this issue, and I congratulate her on doing so. However, the Greens say that this is not good enough from Labor; it should be a Government bill backed by Cabinet, and without a conscience vote from the Labor benches. The Government is hiding behind the Hon. Jan Burnswoods' private member's bill, trying to play off the two parts of the constituency that it is appealing to. It is outrageous that a basic matter of human rights is deemed to be a difficult issue of conscience. I understand that some members vehemently oppose the Government's bill. We are dealing with a question of human rights.

The Greens are also concerned that the Government is continuing to discriminate against same-sex couples in adopting children. The reforms to the Adoption Act perpetuated the offensive notion that same-sex couples are less equipped to be parents than heterosexual couples are. Similarly, we are concerned about the exemptions contained in the Anti-Discrimination Act that continue to allow homophobic discrimination perpetrated by private educational institutions and other bodies. That is clearly something that the Labor Government just has to move on. Whilst the bill is to be commended, if it is to be the sum total of Labor's commitment to gay and lesbian law reform since the 1999 election then the public has a right to be angry. Labor must summon the courage to tackle the more contentious issues if it wants to be seen as a gay and lesbian friendly government. It has taken one small step, but the Labor Government has a long way to go on gay and lesbian law reform.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [11.23 a.m.]: The Democrats are very committed to gay and lesbian issues, particularly equal rights for same-sex couples. I concede that the Greens may have had the first openly gay senator, but I am not quite sure that it was the first party to run a transgender candidate. I do not think that is correct.

Ms Lee Rhiannon: No, I said intersex.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: The honourable member may well be right; I will not make any claims about intersex candidates. It was my predecessor, former Democrats member of the Legislative Council, Elisabeth Kirkby, who introduced the De Facto Relationships Amendment Bill in June 1998. The bill was referred to the Standing Committee on Social Issues and later reappeared as a Government bill. The Democrats are still involved in the fight against discrimination against gays and lesbians. Democrats Senator Brian Greig continues the fight in the Federal arena. I was extremely pleased and honoured to be awarded the Sydney Star Observer Pride Week award as community supporter of the year. I appreciated the comments that I was a forward-thinking politician. I acknowledge that the Hon. Jan Burnswoods and Ms Lee Rhiannon were also nominated for the award.

The bill will extend the definition of "de facto relationship" in the Property (Relationships) Act 1984 to a number of other statutes. The definition in the Act of "de facto relationship" does not distinguish between same-sex and opposite-sex couples. The bill will amend 25 Acts to give de facto couples the same rights as traditionally married couples. The main benefits are to do with equal access to public sector superannuation and workers compensation; that is to say, what is left of workers compensation after the Government has mauled it. Same-sex couples will be able to access protections under the Evidence Act and the Defamation Act relating to the compellability of spouses. The Credit Act 1984 will be amended so that same-sex couples come within the ambit of provisions relating to guarantors.

The bill contains amendments to the Electricity (Pacific Power) Act 1950, the Public Sector Management Act 1988, the Teaching Services Act 1980, the Transport Administration Act 1988 and the Waste Recycling and Processing Service Act 1970 to extend the right to inherit the unpaid balance of a deceased de facto partner's unpaid long service leave. These Acts all use the term "widow" and "widower" and some also refer to "dependants". Bearing in mind that public service superannuation has now been amended to include the De Facto Relationships Act definition of de facto partners, it does not make sense that a same-sex de facto partner could inherit the deceased employee's superannuation but not his or her long service leave.

The Police Service Act 1990 and the Sporting Injuries Insurance Act 1978 will be changed to extend the provision of death or injury benefits paid to the partners of insured employees. The Police Service Act may cover same-sex partners already as a spouse is said to include a de facto partner, but "de facto" remains undefined. To avoid uncertainty and pointless litigation the new definition of "de facto" could be inserted. The amendments to the Industrial Relations Act 1996 will extend unpaid leave to the non-biological parent—that is, the co-parent—of a child born to or adopted by a lesbian or gay couple. There is no definition of "de facto" in the Act so the Act should be amended to avoid uncertainty.

Further, co-parents are already entitled to carers' leave when the child falls ill, so it makes no sense to deny them unpaid parenting leave. This leaves a set amount to be divided between the parents. So a change to this Act does not give gay and lesbian parents additional rights, just equal rights. Currently the Landlord and Tenant Act 1899 restricts the right of eviction if the lessor's partner is post-retirement and wants to stay in the house after the lessor's death. Considering that the Retirement Villages Act was amended in 1999 to cover same-sex partners, it now seems very unfair that an elderly same-sex partner can be evicted from a private leased premises but not from a retirement village on the death of the partner.

Amendments to the Evidence Act 1995 will allow a de facto partner to be excused from giving evidence against their partner. The amendment to the Health Insurance Levies Act 1992 will give partners with children access to the family rate of contribution. Amendments to section 63 of the Liquor Act 1982 will allow a partner to carry on business for one month after death of the licensee. Amendments to section 69 will allow the partner to apply for a licence when he or she is disqualified, as can other families and others. There is no definition in this Act currently so it is uncertain what the extent of its coverage is.

The amendments to the Local Courts (Civil Claims) Act 1970 would extend to a partner the right to appear before a Local Court. That is to say, a person may appear in person, by a solicitor or barrister or by a spouse or employee—in the latter two cases only if authorised in writing. This is not confined to circumstances of incapacity. There is no definition in the Act currently. The amendments to the Adoption Information Act 1990 would provide a partner with access to adoption records after the death of an adopted person or birth parent. It does not give a right to such information as such but states that the director-general may give relatives, broadly defined and including de factos, information. There is also an interim measure for children. While a wide range of issues concerning co-parents and their children have been considered by the New South Wales Law Reform Commission, it may be some years before the commission reports and recommendations are implemented. It is also unlikely to spend much time considering adoption as it has already recommended in a previous report that same-sex couples have equal eligibility to adopt.

Communities have expressed strong concerns about protecting their relationships with the children they care for. At present the only means of achieving this is through parenting orders from the Family Court, but such orders are limited in effect and do not continue once the child is of age, nor do they cover inheritance. Amendments to the Adoption Act include same-sex de facto couples. For example, Rob and John wanted to adopt the two children that they had been fostering for the past two years. Under the new Adoption Act only one single person could adopt the children, despite both Rob and John equally parenting the children as foster parents. The home assessment was to assess the suitability of both of them. Consequently, Rob adopted the children. Under the new Adoption Act couples are no longer prioritised over single applicants, so Rob and John would have no trouble adopting the children. The problem is that children are deprived of the economic protection of having two legal parents.

I cite another example. Helen and Nikki have two children by donor insemination, with each woman giving birth to one child. There is no legal father—under the operation of the Status of Children Act, only the consenting male spouse or de facto partner of a woman who conceived by donor insemination is presumed to be the father. Likewise, those two children have only one legal parent each, despite their being born into and raised in a family with two parents. In addition, legally they are not siblings. The definition of the family unit is changing, which I referred to last week during debate on the family impact legislation. There was a time in Australian society when inter-faith marriages between Catholics and Protestants were taboo. Inter-racial relations in marriage is increasing in Australia as well. We should be proud of our diversity. It is logical that same-sex couples in de facto relationships should be entitled to the same rights as everyone else. As honourable members would be aware, the Australian Democrats have a bill before the House, the Crimes Amendment (Equal Age of Consent) Bill, which we are keen to debate at the earliest convenience so that the rights of gay couples are given the attention they deserve.

While the Democrats support the bill and congratulate the Government on introducing it, we also expect the Government to support the private member's bill to equalise the age of consent for male homosexuals. The Democrats would like the Leader of the Liberal Party to take a stance in the party room to support the proposed bill to amend the Crimes Act. We know that he supports an equal age of consent and the Democrats would like him to become a real leader on this. If the Government and the Opposition fail to support the bill introduced by the Hon. Jan Burnswoods, I will introduce another bill. The Democrats will push this issue until the major parties consent to what should be a moral standard. The Democrats support the bill.

The Hon. JOHN HATZISTERGOS [11.32 a.m.], in reply: I thank all honourable members for their general support for this bill. As honourable members would be aware, in 1999 the Government passed the Property (Relationships) Legislation Amendment Act, which gave same-sex partners the same rights as heterosexual de facto couples in property distribution following the breakdown of a relationship. That bill amended a number of statutes to include same-sex couples in the statutory definition of de facto relationships. This bill continues that process and will amend a number of other New South Wales Acts relating to protections in court, work, leave entitlements and financial security to ensure an inclusive non-discriminatory approach is taken to the recognition of same-sex relationships. Contrary to what was stated by Reverend the Hon. Fred Nile in his contribution, omnibus legislation of this kind is not unusual—we do it all the time. Apart from the obvious example of the 1999 bill, which has already been mentioned, it has been a regular practice of New South Wales governments to introduce statutory law revision legislation to amend an array of Acts at the end of every parliamentary session.

The number of omnibus bills that have been passed by this House over the years, including the Attorney General's regular program of courts and criminal law miscellaneous reform legislation, is apparent. Accordingly, the concept of omnibus legislation is hardly out of the ordinary. Reverend the Hon. Fred Nile made a number of comments on marriage, and proposes in Committee to move a number of amendments relating to that. The Government will respond in specific terms to those amendments. However, the concerns seem to be predicated on the basis that passing this bill will somehow open the door to legislation on same-sex marriages. First, that fails to address the issues that this bill addresses; that is, not legislating for same-sex marriages. Second, as Reverend the Hon. Fred Nile would be aware, section 51 (xxi) of the Australian Constitution makes marriage the responsibility of the Federal Parliament. It would not be within the province of the New South Wales Government, with the Federal Parliament having taken up responsibility in this area, rightly, under the Constitution, to pass legislation that somehow validates same-sex marriage.

Reverend the Hon. Fred Nile: The Federal Parliament is now debating a bill on that.

The Hon. JOHN HATZISTERGOS: That is something that Reverend the Hon. Fred Nile can take up in the Federal Parliament, if he ever gets there, but he need not worry about the consequences that may flow from that because it cannot be done here. All the scaremongering that Reverend the Hon. Fred Nile has embraced in his contribution fails to address the central point of the bill. The bill does not attempt to equate de facto relationships with marriage. The status of marriage is in no way affected by this bill. This bill does not make de facto relationships equal to marriage; rather it simply extends certain provisions that refer to spouses to include partners in de facto relationships. Therefore, marriage and de facto relationships remain different concepts. It has been suggested that amendments contained in this bill will somehow undermine the concept of the family. In fact, the amendments in this bill do the opposite because they help to promote greater inclusion in the general community of people who live in non-traditional families. The bill does that by applying the property relationships Act definitions to a wide range of concepts that affect people in spousal relationships.

Reverend the Hon. Fred Nile asks why we should do this now. The answer is that this bill continues to do what the Government has already done, and its commitment to de facto and same-sex relationship law, a process that was begun in 1999 when the Property (Relationships) Legislation Amendment Act was enacted. That Act introduced the definition of de facto relationships, which the present bill aims to extend to 25 statutes that confer employment benefits and other entitlements, rights, powers and protections that arise as a legal consequence of being a partner in spousal relationships. Whether Reverend the Hon. Fred Nile likes it or not, those relationships exist. If he wants to make a valued and learned contribution to this debate he should turn his attention to why those rights and benefits should not exist in relationships which, notwithstanding his own convictions, exist and will continue to exist.

Reverend the Hon. Fred Nile: Not with a same-sex spouse.

The Hon. JOHN HATZISTERGOS: Perhaps Reverend the Hon. Fred Nile can tell the House why he believes those rights should not exist in those relationships? Irrespective of his views, those relationships will continue to exist, even if this bill is not passed by the House. They are a fact of life. Apart from continuing the Government's law reform agenda in this area, this bill helps to further the desirable goal of achieving a consistent definition of a de facto relationship across all New South Wales legislation. Reverend the Hon. Fred Nile said that nowhere else do we use the word "spouse" to cover a same-sex relationship. That is not true. Western Australian and Australian Capital Territory legislation does the same thing. It is timely to build upon the Government's commitment in light of developments in other States.

In 1999 Queensland enacted reforms to its Property Law Amendment Act and last year Victoria went further and amended 43 Acts to extend equal rights to same-sex relationships under the Statute Law Amendments Relationships Act 2001. Most recently, this year Western Australia, which used the word "spouse", began stage one of a comprehensive same-sex law reform agenda with the passage of its Acts Amendment (Lesbian and Gay Law Reform) Bill 2001. A second stage of reforms to amend any remaining Western Australian Acts will be pursued later this year. I thank honourable members for their contributions. I urge the House to support the bill.

Motion agreed to.

Bill read a second time.

In Committee

Clauses 1 to 4 agreed to.

New clause 5

Reverend the Hon. FRED NILE [11.42 a.m.]: I move Christian Democratic Party amendment No. 1:

5 Interpretation

In 1999 I moved this amendment to the Property (Relationships) Act and it was accepted. The amendment removed any doubt about the intent of the legislation. The Government's response to the second reading debate confirmed the need for the amendment by stating that a number of other Labor governments are misusing the word "spouse" to describe partners in same-sex relationships, which only proves my point. Logically, if every State in Australia called partners in same-sex relationships "spouses", it would be very simple for the Federal Parliament—the bill is already before the Senate—to argue that we are discriminating against people of the same sex if we refer to them as spouses but prevent them from legally marrying. Why do we call them a "spouse" if they are not legally married? Why is the Government stopping them from getting married when it has already agreed to call them a "spouse", which means a bride or a bridegroom?

If every State is introducing similar legislation to call same-sex partners "spouses" it would be very simple for the Federal Government to amend the Marriage Act. I do not anticipate that John Howard, the Prime Minister, would do that. But this seems to be a hobbyhorse of the Labor Party. If the Labor Party were to win government federally then, to be consistent, it would argue that partners in same-sex relationships should be called "spouses" in the Federal Marriage Act. It would be simple to make it gender neutral. The Marriage Act would be amended to delete any reference to male or female and insert instead the word "person". It could then apply to a male and female, a male and male, or a female and female. We have already removed gender references in non-controversial legislation. A minor bill could be introduced to remove gender references in the Marriage Act. Members of the Federal Parliament could vote for it without knowing that they had legalised same-sex marriages. It is their responsibility.

My amendment would ensure that the Government honours what it said in this House: it is not its intention to support, accept, recognise or legalise a purported marriage of persons of the same sex. If that is the policy of the Government, but the bill does not deliver it, then we should make it absolutely black and white and include my amendment in the interpretation so that no government can argue that the use of the word "spouse" in this bill has opened the door to the next step to change the meaning of marriage from a union between people of the opposite sex to a union between people of the same sex. For the benefit of the Committee, as the remainder of my amendments, Nos 2 to 49, deal with the same principle I will seek leave to move them in globo, unless the Government would prefer that I move them one by one.

The Hon. JOHN HATZISTERGOS [11.45 a.m.]: Contrary to what Reverend the Hon. Fred Nile stated, nothing in the Property (Relationships) Act bears any resemblance to his amendments. The Government will oppose them for the reasons I have already stated. Nothing in the bill accepts, recognises or legalises gay marriages. To include a statement in the bill of the nature he asks the Committee to embrace would have no legal utility. It is unnecessary, and we do not support it. As I have already stated, the Commonwealth is responsible for marriage, the States are not. It is not as simple as the Commonwealth waking up one day and realising that the States have passed legislation giving same-sex couples certain rights, then deciding to go the next step by amending the Marriage Act.

Any amendment would require a bill to pass through both Houses. A whole process has to be gone through. I would be astonished if passing this bill would somehow pressure the Federal Government into passing legislation that would legitimise same-sex marriages. Scaremongering of that sort should be put aside. If a bill of the type referred to by Reverend the Hon. Fred Nile were ever to come before the Federal Parliament for debate it would be dealt with by those who are responsible for it. Let us deal with the legislation with which we are currently confronted. Nothing in the legislation does what Reverend the Hon. Fred Nile is suggesting we should be afraid of: the next stage in the reform process.

The Hon. GREG PEARCE [11.47 a.m.]: As I indicated earlier, the Opposition did not intend to oppose the general thrust of the bill. However, I acknowledge the concerns held by many about the term "spouse". The Opposition will support the amendment.

Question—That the amendment be agreed to—put.

The Committee divided.

Ayes, 14

Mrs Forsythe
Mr Gallacher
Miss Gardiner
Mr Gay
Mr Harwin

Mr M. I. Jones
Reverend Nile
Mr Oldfield
Mr Pearce
Mr Ryan

Mr Samios
Mr Tingle
Tellers,
Mr Colless
Mr Jobling

Noes, 21

Mr Breen
Dr Burgmann
Ms Burnswoods
Dr Chesterfield-Evans
Mr Cohen
Mr Costa
Mr Della Bosca
Mr Dyer

Mr Egan
Mr Hatzistergos
Mr R. S. L. Jones
Mr Macdonald
Mr Obeid
Ms Rhiannon
Mrs Sham-Ho
Ms Tebbutt

Mr Tsang
Mr West
Dr Wong

Tellers,
Ms Fazio
Mr Primrose

Pair

Mr Lynn

Ms Saffin

Question resolved in the negative.

Amendment negatived.

New clause 5 negatived.

Schedule 1

Reverend the Hon. FRED NILE [11.55 a.m.], by leave: I move Christian Democratic Party amendments Nos 2 to 49, in globo:

[2] Section 137 (1)

spouse

de facto partner

spouse

[2] Section 9 (2)

spouse

de facto partner

[1] The whole Act (except section 5 (1))

spouse

de facto partner

Insert "or de facto partner" after " the person's spouse" in section 56 (1) and (2) wherever occurring.

[2] Section 56 (3)

Omit section 56 (3). Insert instead:

(3) In this section, in relation to an answer, discovery or production by any person:

de facto partner

Property (Relationships) Act 1984

spouse

de facto partner

Insert "or de facto partner" after "to the spouse" in section 16B (3).

[2] Section 16B (4)

spouse

de facto partner

member of the family

de facto partner

Property (Relationships) Act 1984

spouse

de facto partner

spouse

de facto partner

spouse

de facto partner

spouse

de facto partner

[2] Section 11 (1C)

spouse

de facto partner

spouse

de facto partner

spouse

de facto partner

spouse

de facto partner

spouse

de facto partner

spouse

de facto partner

spouse

de facto partner

spouse

de facto partner

Amendments Nos 2 to 49 were drafted by Parliamentary Counsel in response to my instruction to correct the wording in the bill. As the bill is currently drafted, the word "spouse" applies to same-sex relationships. With the introduction of this bill, two males or two females in a same-sex relationship suddenly become known as spouses. As I said in my contribution to the second reading debate, the word "spouse" historically, traditionally and currently refers to a bride or bridegroom. The Government, in response to Christian Democratic Party amendment No. 1, argued that the Commonwealth does not follow State legislation. The Government missed one important point in its argument. As all honourable members would know, the Commonwealth and the States seek to implement uniform legislation. Generally, the legislation originates from the Commonwealth and the States support it by introducing uniform legislation. I believe that in this case it is happening back to front and the States are introducing legislation to apply the word "spouse" to same-sex relationships.

I believe that the Attorney General's intentions are deliberate. He knows what he is doing, even if the Premier and the Cabinet do not. This is a left-wing policy direction, because the left wing of the Australian Labor Party [ALP] believes in legalising same-sex marriages. It sees no ethical or legal reason why same-sex partners should not have the right to marry. The Parliamentary Secretary said that I was scaremongering. I am not—I am stating reality. If all the States introduce legislation that defines "spouse" to include same-sex partners, a strong argument will be put by the Australian Democrats, the Greens and probably the left wing of the Federal ALP in the Federal Parliament that the Commonwealth legislation, the Marriage Act, is inconsistent with State legislation. As an example of the intent of our amendments, amendment No. 3 omits the words "spouse of a deceased person includes" and inserts in lieu "de facto partner of a deceased person means". Amendment No. 4 inserts "spouse of a deceased person means the husband or wife of the deceased". The amendments make it clear that the word "spouse" will apply only when it refers to a husband or wife, not to same-sex partners. That is the only change my amendments seek to make. I presented my case in support of the amendments during the second reading debate and I commend them to the Committee.

The Hon. JOHN HATZISTERGOS [12.00 p.m.]: The Government opposes the amendments for the reasons I have outlined. We are trying to introduce in this legislation language that will bring about greater consistency and we do not intend to indulge in a tug-of-war over the use of particular words.

The Hon. GREG PEARCE [12.00 p.m.]: As I advised previously, the Opposition supports the amendments.

Reverend the Hon. FRED NILE [12.00 p.m.]: In view of the Government's response, I ask: Why in the past has the Government supported similar amendments that applied the definition of "spouse" only to married partners? Those amendments were accepted and stand part of the bill that was passed on 1 December 2000.

Question—That the amendments be agreed to—put.

The Committee divided.

Ayes, 15

Mrs Forsythe
Mr Gallacher
Miss Gardiner
Mr Gay
Mr Harwin
Mr M. I. Jones

Reverend Nile
Mr Oldfield
Mr Pearce
Dr Pezzutti
Mr Ryan
Mr Samios

Mr Tingle

Tellers,
Mr Colless
Mr Jobling

Noes, 21

Mr Breen
Dr Burgmann
Ms Burnswoods
Dr Chesterfield-Evans
Mr Cohen
Mr Costa
Mr Della Bosca
Mr Dyer

Mr Egan
Mr Hatzistergos
Mr R. S. L. Jones
Mr Macdonald
Mr Obeid
Ms Rhiannon
Mrs Sham-Ho
Ms Tebbutt

Mr Tsang
Mr West
Dr Wong

Tellers,
Ms Fazio
Mr Primrose

Pair

Mr Lynn

Ms Saffin

Question resolved in the negative.

Amendments negatived.

Schedule 1 agreed to.

Title agreed to.

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

Pursuant to sessional orders business interrupted.

QUESTIONS WITHOUT NOTICE

_________

Minister for Mineral Resources, and Minister for Fisheries pecuniary interest disclosure

The Hon. MICHAEL GALLACHER: My question is directed to the Minister for Mineral Resources, and Minister for Fisheries. Why does the Minister continue to mislead the House—which he did as recently as yesterday—when he is confronted with discrepancies in his pecuniary interest returns? Is it not a fact that the Minister's non-disclosure of his interests in Jensay Pty Ltd and the Olympia Group Pty Ltd was not raised in Parliament before yesterday and that he has never answered questions about his involvement in these companies? When will the Minister come clean and answer questions about his pecuniary interests?

The Hon. EDDIE OBEID: If Opposition members did their homework they would know that I declared my interests in Jensay Pty Ltd and Olympia Pty Ltd in the 1994 return. That information was detailed in my pecuniary interests statement lodged in 1994. My brief association with these two companies ended in late 1994 and, due to an oversight, it was not referred to in my pecuniary interests statement. Those opposite are a lot of hypocrites to ask me about my pecuniary interests when the Leader of the Opposition, who wants to be Premier of this State, failed to declare not only his pecuniary interest in Northmist but his income as a consultant. That is yet to come. I have written to the Clerk of the Parliaments about this matter and I seek leave to incorporate the letter in Hansard.

Leave granted.
______

Eddie Obeid

Minister for Mineral Resources

Minister for Fisheries

MEDICINAL HERB INDUSTRY

The Hon. AMANDA FAZIO: My question without notice is to the Treasurer, and Minister for State Development. Will the Treasurer provide the House with details of the development of the medicinal herb industry in New South Wales?

The Hon. MICHAEL EGAN: I am pleased to inform the House of a project established earlier this year to help develop an industry strategic plan for the development of the medicinal herb industry throughout the Northern Rivers, mid North Coast and New England regions by a consortium of regional development agencies. This project could significantly contribute to the State's regional economy as Australia currently imports approximately $50 million of herbs and herb extracts each year. Along with ongoing expansion in the entire natural therapies industry, there is potential for local growers to obtain a slice of the lucrative medicinal herb market. My office is yet to advise me whether any medicinal herbs might be able to cure my lateral epicondylitis.

The Hon. Dr Arthur Chesterfield-Evans: Cure your smoking.

The Hon. MICHAEL EGAN: He is a doctor and he thinks epicondylitis is something to do with smoking. He does not know what it is. Even the Hon. John Jobling knows what it is. These local growers could increasingly supply herbs to domestic natural therapies companies, replacing their current reliance on imports. The consortium's key role is to identify specific markets and the full range of herbs that can be grown in the area in order to provide ongoing research and advice for growers who want to support those markets. There may also be opportunities for existing agricultural businesses to diversify into herbs, establishing a second stream of income. As part of the consultative process, public meetings were held in Armidale, Kempsey, Grafton and Lismore with current and potential growers and industry representatives to discuss issues relating to the ongoing local development of this industry. I understand the project also involved consultation with local indigenous communities, which have longstanding traditions in the use of native plants as remedies and treatments. Interestingly, in addition to conventional herbs, there is a growing market for native herbs and plant extracts.

The Hon. Dr Brian Pezzutti: Like tea-tree oil, which is already big in the north.

The Hon. MICHAEL EGAN: It is a big industry, particularly around your part of the world. Increasingly one sees tea-tree products on shelves and in pharmacies.

The Hon. Dr Brian Pezzutti: And in my medicine cabinet.

The Hon. MICHAEL EGAN: That is interesting. These are not only being used in herbal medicines but also as ingredients in cosmetics and as food additives and dietary supplements. Of course, herb growing is not new to these regions. Last year the first herb conference and festival was held at Lismore. The festival was organised by the Australian Herb Growers Industry Association and included a technical conference at Southern Cross University and a growers conference and field day organised by the New South Wales Department of Agriculture. I am very pleased to report on this initiative, which will generate and promote a new growth industry that has the potential to provide a boost to the Northern Rivers regional economy. I am particularly heartened by the fact that this issue is of such interest that the media is here to report my answer.

MINISTER FOR MINERAL RESOURCES, AND MINISTER FOR FISHERIES AND Mr CONSTANTINIDIS

The Hon. GREG PEARCE: My question is to the Minister for Mineral Resources, and Minister for Fisheries. Why did the Minister act as guarantor for a $1.5 million loan to Mr Constantinidis of the Olympia Group and what did he receive in return for providing that guarantee? Has the Minister or any company associated with him ever received any other benefit or remuneration from Mr Constantinidis or any company associated with him?

The Hon. Michael Egan: Point of order: That question has nothing to do with the Minister's responsibilities as Minister for Mineral Resources, and Minister for Fisheries. It is to do with some private business dealings for which the Minister is not responsible to this House.

The Hon. GREG PEARCE: To the point of order: Madam President, you have regularly ruled that questions relating to matters of public interest and the pecuniary interest disclosure of Ministers are matters that can be asked. This is a matter that directly arises from the Minister's lack of disclosure.

The Hon. Michael Egan: To the point of order: If a question relates to a member's pecuniary interest declaration then it would be in order. However, the question that was asked by the Hon. Greg Pearce did not relate to a member's pecuniary interest declaration. It related to business dealings.

The Hon. Dr Brian Pezzutti: Yes, it is does.

The Hon. Michael Egan: On a pecuniary interest declaration we do not report business dealings, we report our interests.

The Hon. Duncan Gay: To the point of order: It includes matters of public importance, and a matter of great public importance is the ability of a Minister to be able to do his job properly and impartially. The failure or not of this Minister to detail business dealings that have an effect on issues in this State certainly comes under the gambit of a matter of public importance, and it is a disgrace for the Leader of the Government to try to cover this up.

The Hon. Michael Egan: Further to the point of order: I shall read the sessional order in relation to questions. The very first sessional order states that "Questions may be put to Ministers relating to public affairs with which the Minister is officially connected, to proceedings pending in the House, or to any matter of administration for which the Minister is responsible."

The Hon. Patricia Forsythe: So he is not connected to his pecuniary interest declaration?

The Hon. Michael Egan: That is a silly comment.

The Hon. John Jobling: To the point of order: Clearly, the question of a Minister's standing in dealing with public affairs as a Minister of the Crown is one ground on which the point may well be taken for ruling the question in order. Irrespective of whether members are Ministers or ordinary humble backbenchers, they are required on an annual basis to make disclosures of pecuniary interests under the heading of "Loans" and also under the heading of "Other income". In this case they were not made.

The Hon. Michael Egan: Further to the point of order: As I understood the question, it related to whether the Minister had acted as guarantor for a loan. That is not receiving a loan. If we receive a loan, then obviously, in the right circumstances, we are required to declare it as part of our pecuniary interests. But if we give someone a loan, that is not a matter we are required to declare.

The Hon. John Jobling: To clear up any misunderstanding, as the question was put some moments ago, I might remind the House that the question specifically asked the Minister, "Have you ever received any benefit or remuneration?" So both circumstances relating to the pecuniary interests are contained in the question asked by the Hon. Greg Pearce and it specifically names from where the benefit or remuneration had come.

The Hon. John Ryan: To the point of order: The Minister already has, to some extent, commented on these matters both in the House and in the media. He has associated himself, in my view, by having made some of those comments in any event.

The Hon. Michael Egan: Further to the point of order: The comments made by the Hon. John Ryan are so ludicrous that I am surprised he would make them. The fact that a member may have made comments about a matter outside the House does not mean that the comments relate to the public affairs with which the member is officially connected. I might make a comment about the South Sydney Rugby League team. I might make a comment about my favourite beach in New South Wales. I often do. But those are not matters for which I am responsible to this House.

The Hon. Duncan Gay: Further to the point of order: The question revolves around a benefit or remuneration. The question asked, "In acting as guarantor for a $1.5 million loan did you receive anything in return?" If the Minister did, that is a benefit, and it needs to be detailed in the Minister's pecuniary register. It is a legitimate and fair question to ask in the public interest.

The PRESIDENT: Order! I will now rule on the various points of order. I remind members that the sessional order requires that questions may be put to Ministers relating to public affairs with which the Minister is officially connected—not, as argued by the Deputy Leader of the Opposition, a matter of public importance. It must be a matter with which the Minister is officially connected. In the past I have ruled that questions may be asked about entries in a member's pecuniary interest register. However, the question was not specifically related to the Minister's pecuniary interest register. In future, questions to do with a Minister's private affairs must be directly related to the Minister's entry in the pecuniary interest register. The question was not in order.

WORKCOVER PREMIUM DISCOUNT SCHEME

The Hon. RON DYER: I ask the Minister for Industrial Relations a question without notice. Will the Minister advise the House whether the WorkCover Premium Discount Scheme, which I understand rewards employers who improve their occupational health and safety, has been successful?

The Hon. JOHN DELLA BOSCA: I commend the honourable member for his ongoing interest in occupational health and safety and workers compensation. When this Government announced the Premium Discount Scheme the Opposition was sceptical that employers would be able to access the scheme. They were sceptical that there was not enough time to qualify and sceptical about the assistance employers would receive. Their concerns were unfounded. In its first year this scheme to improve occupational health and safety has resulted in a $21 million saving for employers through reduced workers compensation premiums. The initiative already has meant safer working conditions for 121,000 New South Wales employees. The scheme has exceeded all expectations. Eight hundred and sixty-five employers are taking part in the scheme, earning premium rebates of $21 million, and establishing a greater awareness of occupational health and safety throughout workplaces in New South Wales.

The Premium Discount Scheme was introduced in 2001 as part of a drive to change the culture in workers compensation and occupational health and safety. The scheme gives employers great incentive to improve workplace safety and to help employees recover and return to good health sooner. Employers who achieve their goals can attain a maximum discount of $75,000 in the first year. One hundred employers achieved the best possible result, with an average saving to individual businesses of more than $24,000. These figures clearly demonstrate that the scheme is succeeding.

The scheme is also achieving its primary goal of attracting small and medium-size employers, employers with a history of poor claims and employers in the high-risk industries. Employers in high-risk categories make up 73 per cent of participants in the scheme, headed by manufacturing, health and community services, property and business services, and construction. Among the many individual success stories to come from the scheme this year is a family-run supermarket at Cobar, which received a $8,800 rebate; a group of aged care facilities at Nowra which received rebates ranging up to $19,000; and a Newcastle-based engineering firm which topped the $64,000 mark.

These examples demonstrate that investing in occupational health and safety is not only good for the wellbeing of employees but also makes good business sense. A safer workplace is a more productive workplace. Employers who improve their occupational health and safety will experience the dual benefits of fewer claims and fewer injuries to their employees. The Premium Discount Scheme—with $21 million in premium reductions—is a great example of the positive change this Government is bringing to workers compensation and occupational health and safety in New South Wales.

FOUR-WHEEL-DRIVE VEHICLES

The Hon. DAVID OLDFIELD: My question is to the Minister for Mineral Resources, representing the Minister for Transport. What is the Minister's view of Paul Keating's indecent, discriminatory and insulting attack on law-abiding owners of four-wheel-drive vehicles? Does Paul Keating have any influence on the Government's policies? As Paul Keating was swept from office in an electoral backlash of such proportion perhaps bested only by the equally appropriate drubbing of Gough Whitlam, are his views of any consequence to the Government? Will the Government at any stage adopt the Paul Keating view of four-wheel-drive vehicles and hence legislate in any way that would be considered negative by the hundreds of thousands of legitimate law-abiding four-wheel-drive owners in New South Wales?

The Hon. Michael Egan: Point of order: While we enjoyed listening to the question, it was out of order in that it seeks an opinion. If the Hon. David Oldfield has a fascination with Paul Keating, might I suggest to him and all other honourable members of the House, particularly Liberal members, that they get last Thursday's Australian Financial Review and read Paul Keating's letter to that newspaper about Michael Baume.

The PRESIDENT: Order! It is quite clear that the question was seeking an opinion. Therefore the question is out of order. The honourable member might wish to rephrase the question.

MINISTER FOR MINERAL RESOURCES, AND MINISTER FOR FISHERIES PECUNIARY INTEREST DISCLOSURE

Ms LEE RHIANNON: I direct my question to the Minister for Mineral Resources, and Minister for Fisheries. In reference to the Minister's pecuniary interest disclosures or omissions, and to his probity as a Minister of the Crown, did he sell any of his or his family's stake in the company group Media Press to a family member of corrupt Rockdale councillor Andrew Smirnis? When the Minister had an interest in Media Press did it ever charge less or more than standard commercial rates for printing jobs done for the Australian Labor Party?

The Hon. Michael Egan: Point of order: The question is clearly out of order—

The Hon. Duncan Gay: Because you don't like it?

The Hon. Michael Egan: No. It is out of order. It does not relate to public affairs for which the Minister is responsible.

The Hon. Michael Gallacher: It refers to the Minister's pecuniary interests, as it has been suggested that Opposition questions should do.

The Hon. Michael Egan: Just because the words "pecuniary interests" were contained in the question does not make it admissible.

The Hon. Duncan Gay: To the point of order: It is hard for Opposition and crossbench members to address the question of the Minister's pecuniary interests because the Minister has not been putting his pecuniary interests on the register. Therefore, Madam President, when you rule the question out of order because the pecuniary interest is not on the register, members have the problem that the Minister has not registered the interest in the first place. Can you suggest to us how we can get around that problem?

Ms Lee Rhiannon: To the point of order: I argue that this is a matter of public interest. The relevant standing order provides that questions may refer to other public matters connected with the business of the House. Clearly, the question that I asked is connected with the business of the House in terms of the ability of the Minister to carry out his job. It goes to the very heart of the issue, the integrity of the Minister. I argue most strongly that we cannot separate the two issues; otherwise, this House is headed down a very dangerous path.

The Hon. Michael Egan: Further to the point of order: If Ms Lee Rhiannon is suggesting that her question was impugning a member of the House, she should know that she cannot do that by way of question; she must do it by way of substantive motion.

The Hon. Dr Arthur Chesterfield-Evans: To the point of order: It is important for this House and the Government of this State that we maintain comprehensive registers of pecuniary interests. If there is any questionable conduct by Ministers the House should be able to inquire about that. If technicalities stop that process then parliamentary accountability is impeded. I put it to you that it is important that questions such as this should be heard and answered.

The Hon. Michael Egan: Further to the point of order: The question is as relevant as my asking the Deputy Leader of the Opposition who he sold his cattle to.

The Hon. Duncan Gay: I am not a Minister of the Crown—yet.

The Hon. Michael Costa: You never will be.

The Hon. Michael Egan: Even though he probably never will be a Minister of the Crown, the point simply is that his dealings as a farmer have nothing to do with the public affairs of the Chamber.

The Hon. Duncan Gay: I am an Opposition member.

The Hon. Michael Egan: And guess what? You are going to stay one too. The question of Ms Lee Rhiannon had nothing to do with the Minister's pecuniary interest declaration.

The Hon. Michael Gallacher: Oh, you know that, do you?

The Hon. Michael Egan: I listened to the question. It was about the prices that Media Press charged at the time. It was also about to whom the Minister may have sold some interest in the business. It had nothing to do with this House.

The Hon. Dr Brian Pezzutti: To the point of order: I am not aware what the Minister was referring to when he was referring to the standing orders. I am looking at Standing Order 29. It says specifically:

Questions may be put to Ministers of the Crown relating to public affairs; and to other Members, relating to any Bill, Motion, or other public matter connected with the business of the House, in which such Members may be concerned, and the Clerk shall enter upon the Minutes of Proceedings the Questions...

That is under the heading of "Answers recorded to Questions respecting Public Business". I do not know where the Minister got his other little quote from but that is what is provided in Standing Order 29.

The PRESIDENT: Order! I remind the Hon. Dr Brian Pezzutti that Standing Order 29 has been superseded by the sessional orders agreed to for this session and the previous session. The sessional order, that superseded Standing Order 29, provides that questions may be put to Ministers relating to public affairs with which the Minister is officially connected, to proceedings pending in the House, or to any matter of administration for which the Minister is responsible. The sessional order referred to by Ms Lee Rhiannon, which relates to any matter connected with the business on the notice paper, is for members of Parliament who have charge of a matter but who are not Ministers. So it is quite clear what questions may be asked of Ministers. I have in the past allowed questions which relate directly to a statement made by a Minister in the pecuniary interests register, and I will continue to allow questions that relate directly to a matter that has been reported in the pecuniary interests register. So that part of Ms Lee Rhiannon's question which relates directly to a particular statement made by the Minister in the register may be in order and she may wish to rephrase it, but the rest of the question is certainly out of order.

MINISTER FOR MINERAL RESOURCES, AND MINISTER FOR FISHERIES PECUNIARY INTEREST DISCLOSURE

The Hon. GREG PEARCE: My question is to the Minister for Mineral Resources, and Minister for Fisheries. I refer to your pecuniary interests disclosures for 1994 and 1995. In 1994 you disclosed that you were a director of Jensay Pty Ltd and Olympia Group Pty Ltd along with Al Constantinidis. You further disclosed under sources of income that you received income as a member of Parliament and as a director of Obeid Corporation. In 1995 you failed to disclose the two directorships, in breach of the Constitution—

The Hon. Michael Egan: Point of order: The Hon. Greg Pearce is now making assertions. He is not entitled to make assertions in the question. A so-called question that includes assertions is clearly out of order.

The Hon. John Jobling: To the point of order: The Hon. Greg Pearce is merely giving some information to make the understanding of the question perfectly clear. He is not making assertions; he is giving information relating to the question that he proposes to ask.

The PRESIDENT: Order! Paragraph 1 (a) of the sessional order relating to the rules for questions makes it clear that questions must not contain statements of fact or names of persons, unless they are strictly necessary to render the question intelligible and can be authenticated. Therefore, the question of the Hon. Greg Pearce is out of order.

INDEPENDENT ENTERTAINMENT NETWORK

The Hon. JAN BURNSWOODS: My question is to the Minister Assisting the Premier on Youth. What is the New South Wales Government doing to provide young people in New South Wales with safe entertainment?

The Hon. CARMEL TEBBUTT: I am pleased to provide the House with information about what the Government is doing to support young people. All members would have read this morning's reports about binge drinking. Incredibly serious information has come forward that is of concern to anyone who cares about young people, particularly parents of adolescent children. Access to safe and affordable recreational opportunities that are drug and alcohol free can play a part. I do not say that it is the sole answer to binge drinking—it is clearly not—but it has to be one of the factors. That is why the Independent Entertainment Network or Indent, which I will again talk about today, is a most important initiative that the Government has in place for young people.

Time and again young people raise concerns about the availability of entertainment and recreational opportunities that are not just about having fun but a way to prevent social problems among young people living in isolated situations. This is particular the case for young people in rural and regional communities. Indent supports young people in planning and staging their own events and in showcasing local talent in locations where young people have limited entertainment options. In 2002-03 the Government will provide $250,000 to Indent. I am pleased to advise the House that as part of that commitment a new round of eight Indent grants was recently agreed to. Seven of the grants were for young people in rural and regional areas. The grants of up to $2,000 will go to the following organisers: Coffs Harbour Indent, Barraba Indent, Queanbeyan Youth Council, Griffith Youth Committee, Tyro Indent in Temora, Newcastle Women's Performance Network, Yenco Indent in Lismore, and Wise 'Em Up Indent in Parramatta.

The events include a multimedia and electronic music exhibition in Coffs Harbour, a show featuring comedians and an air guitar competition in Lismore, an all-ages event showcasing young local female musicians and performers in Newcastle, and an all-ages show in Griffith with a high-profile band that will conduct songwriting and music workshops as well as performing. All the events funded through Indent are devised, developed, promoted and presented by young people with the support of a local organisation such as a local council, a police and community youth club or youth centre that provides practical support to help make the event a success.

MusicNSW co-ordinates the project and provides support, information, resources and workshops in event production and promotion to ensure that the events are safe and successful. Indent is also guided by an advisory committee, of which half are young people. All events are drug and alcohol free and a transport subsidy is also available in regional areas. This is the fifth round of one-off event grants announced since Indent was launched in October 2000. This, together with an additional 15 partnership grants announced annually, brings the number of Indent assisted events in New South Wales to 77 in this year alone. I advise the House that applications for the 2003 Indent Partnership Grants are now open and applications close on 14 October 2002.

MANLY AND MONA VALE HOSPITALS

The Hon. HELEN SHAM-HO: My question without notice is directed to the Treasurer, representing the Minister for Health. I refer to the likely possibility that Manly and Mona Vale hospitals will be merged, or one of them will be closed, leaving only one hospital on the northern beaches—and I live on the northern beaches. Given that the local community is strongly against the closure of either of these hospitals and last year 6,000 local residents attended a rally to save Mona Vale hospital, will the Minister inform the House whether there will be any community consultation before the final decision is made? If not, why not?

The Hon. MICHAEL EGAN: I will refer the question to my colleague the Minister for Health. When I have obtained a response I will provide it to the House.

BULLDOGS RUGBY LEAGUE CLUB REDEVELOPMENT

The Hon. DUNCAN GAY: My question is to the Minister for Mineral Resources, representing the Minister for Local Government. Has the Minister ever discussed the proposed redevelopment of the Bulldogs Rugby League Club site at Belmore with any member of the Canterbury City Council? If so, what was the nature of that discussion? What did the Minister ask the councillor to consider? What did the Minister indicate were the implications of the council failing to approve the project?

The Hon. EDDIE OBEID: The answer is no.

OPERATION VIKINGS

The Hon. TONY KELLY: My question is to the Minister for Police. What is the latest information on Operation Vikings?

The Hon. MICHAEL COSTA: I thank the Hon. Tony Kelly for asking a question that does not waste the time of question time. As the House would be aware, from 1 July all police officers are required to perform visible street policing as part of the Government's high-impact policing strategy. I am pleased to advise that since 24 May a number of operations have been conducted by the New South Wales Police Force under the umbrella of Operation Vikings in Sydney, Wollongong and Dubbo. I am advised that there will be further operations in regional centres. On the night of Saturday 31 August New South Wales Police staged the tenth Operation Vikings on the streets of Western Sydney. I am advised that 380 police saturated the streets of Granville, Rosehill, Parramatta, Blacktown, Mount Druitt, Holroyd and St Marys.

The police were led by Deputy Commissioner Dave Madden and Senior Assistant Commissioner Peter Walsh, who personally oversighted the operation. As a result there were 117 arrests, 143 charges for antisocial street crime and criminal offences, 53 knife searches, patrols of 97 trains and 98 licensed premises, 892 traffic infringement notices issued, 4,680 random breath test conducted, and 46 people charged with drink-driving. I congratulate NSW Police on that very effective operation that demonstrated how high-visibility, high-impact policing works to make our streets safer. No wonder the community strongly supports those operations. Wherever I go members of the community ask me when Operation Vikings is going to their local community.

I am pleased to report that police have conducted 10 Operation Vikings and that since the first operation have arrested 403 people, laid 581 charges, and conducted 18,466 random breath tests. Police have patrolled 1,397 trains and 500 licensed premises, issued 3,774 traffic infringement notices, conducted 497 knife searches, issued 525 move-on directions, and conducted 85 drug searches and 55 drug dog searches. Nearly 2,700 police were deployed in those operations, drawn from a range of commands including transit police, special crime and internal affairs, police and community youth clubs, traffic services, education services, the water police, legal services, the dog squad and the mounted police.

The results speak for themselves. Again, I thank the police who have been involved in the very important Operation Vikings. The Opposition had described Operation Vikings as "operation knee jerk". John Brogden, the Pinocchio of Pittwater, who constantly lies about crime matters, described Operation Vikings as "operation knee jerk". That shows how out of touch the Opposition is on crime-related incidents. The Pinocchio of Pittwater, John Brogden, should apologise to the community.

TRADITIONAL CHINESE MEDICAL PRACTITIONERS REGISTRATION

The Hon. Dr PETER WONG: My question without notice is directed to the Treasurer, representing the Minister for Health. In relation to the Australian Health Ministers Advisory Council's work on a framework for national minimum standards for the conduct and safety of alternative and complementary medicine, how is the Government's submission to the Federal Government seeking funds for this activity progressing? Does the Government still intend to register traditional Chinese medical practitioners? What is the time frame for that registration? Will it occur before the next election?

The Hon. Dr Brian Pezzutti: You wouldn't have a clue.

The Hon. MICHAEL EGAN: I see that the Hon. Dr Brian Pezzutti is suffering from a blood simmering. I do not want an argument between the Hon. Dr Brian Pezzutti and the Hon. Dr Peter Wong. On this issue I am probably on the side of the Hon. Dr Peter Wong. I will very happily refer his question to the Minister for Health and obtain a response.

MINISTER FOR MINERAL RESOURCES, AND MINSTER FOR FISHERIES PECUNIARY INTEREST DISCLOSURE

The Hon. JOHN JOBLING: My question is to the Minister for Mineral Resources, and Minister for Fisheries. Has the Minister received any income or remuneration arising from his directorship of Jensay Pty Ltd or Olympia Group Pty Ltd? If so, why was that not disclosed in his pecuniary interests declaration?

The Hon. EDDIE OBEID: I am very happy to answer that question. The answer is no. Neither was I a shareholder.

BEIJING 2008 OLYMPIC GAMES BUSINESS OPPORTUNITIES

The Hon. IAN MACDONALD: My question without notice is to the Treasurer, and Minister for State Development. Will the Treasurer provide the House with the latest details of business generation opportunities from the Sydney-Beijing Olympics Secretariat?

The Hon. MICHAEL EGAN: This is an important question that deserves an important answer. The other importance of today's question time is that it has taken almost 45 minutes for the Opposition to learn how to frame a question.

The Hon. Don Harwin: No it has not; question time started at 12.08.

The Hon. MICHAEL EGAN: Okay, I apologise. It has taken almost 40 minutes for the Opposition to learn how to frame a question. And I thank the Hon. Don Harwin for drawing that to my attention. But look at the embarrassment of members opposite! I am pleased to provide an update on the activities of the Sydney-Beijing Olympics Secretariat. I would have thought that the Deputy Leader of the Opposition would know how to frame a question; he has been here long enough. Earlier this year I informed the House that the State Government had established the Sydney-Beijing Olympics Secretariat, a program to assist New South Wales companies capture business opportunities directly connected with the Beijing 2008 Olympics.

[Interruption]

The present Leader of the Opposition is probably the dumbest person ever to hold the office. The secretariat's services to the Beijing Organising Committee for the Olympic Games [BOCOG], the Beijing Municipal Government and the Olympic-related agencies in China include the provision of strategic advice and assistance, the co-ordination of games-related visits between Beijing and Sydney, introductions to businesses in Australia, independent appraisal of Australian consultants and businesses offering services directly to BOCOG, and workshops and other fora in Beijing and Sydney to assist in strategic and operational planning. The secretariat offers a range of services to local businesses, such as informal strategic advice and assistance, independent and realistic assessment of opportunities, a specialised information resource, and assistance with the timing and composition of trade missions and other Australian promotional activities in China.

To date the secretariat has provided advice and briefings during site visits to Sydney Olympic Park to some 25 trade missions from China. In fact, a major workshop for up to 20 senior BOCOG personnel is proposed in Sydney in mid November. During August there was a major program to support three Chinese construction companies seeking Australian partners and consultants for Beijing Olympic project bids. I understand the secretariat has been working closely with Telstra to assist its efforts to win Olympic-related work in Beijing. The secretariat has helped four local legal firms that are bidding for a role to assist the Beijing Municipal Government with the evaluation of Olympic tenders. The secretariat has assisted two trade missions to China, provided technical advice at a number of the business fora in Sydney and provided direct advice to a large number of local businesses.

The secretariat further advises that the first major sports-related fundraising event will be held later this month in Beijing. Organised by a Sydney-based marketing company together with the Australian Embassy, the event will focus on a visit to Beijing by the Australian swimming champion, Ian Thorpe. I am pleased to report on the ongoing activities of the Sydney-Beijing Olympics Secretariat, and trust that it will continue to assist the growing number of New South Wales companies to capture business opportunities associated with the Beijing Games.

MAJOR EVENTS FUNDING

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: My question without notice is to the Treasurer. On what criteria does the State Government give public money to major events? How many applications for public funding of major events are accepted by the Government, and how many are rejected? On what grounds are these decisions made? What was the cost benefit of the $6 million granted to the Rugby World Cup and the decision not to grant support to the mardi gras? Does the Government use any cost-benefit analysis to grant or reject funding to one event over another? If so, why does the Government not release these figures publicly and promptly? In the absence of cost-benefit analysis, does the Treasurer admit that ad hoc handouts may be granted using improper criteria?

The Hon. MICHAEL EGAN: The Hon. Dr Arthur Chesterfield-Evans has asked a number of questions involving some detail. I will obtain information on those aspects of his question and provide them to the House. In relation to the Rugby World Cup, I read in the Sydney Morning Herald that the Rugby World Cup will have an estimated economic benefit to Australia of some $800 million.

The Hon. Duncan Gay: What I want to know is where I can get some tickets.

The Hon. MICHAEL EGAN: For the Rugby World Cup?

The Hon. Duncan Gay: Yes.

The Hon. MICHAEL EGAN: Like everybody else, you will have to buy them. I too would like to go to the Rugby World Cup. Four of the main events will be held at Sydney Olympic Park, at the Olympic stadium.

The Hon. Dr Brian Pezzutti: Telstra Stadium.

The Hon. MICHAEL EGAN: That is right, Telstra Stadium.

The Hon. Patricia Forsythe: No, it will be called Stadium Australia for the purposes of the World Cup.

The Hon. MICHAEL EGAN: I am a little confused, as one becomes when one relies on information from the Opposition. It gives out conflicting information. Are we all going to the Rugby World Cup?

The Hon. Dr Brian Pezzutti: If we can get tickets.
The Hon. MICHAEL EGAN: I am sure we will get tickets somehow. I tell you what, I will host a function and you can all come and watch the final on television with me. It will be fought out between Australia and Ireland. For all the other events I am afraid you will have to make other arrangements. Is the Hon. Dr Arthur Chesterfield-Evans interested in the Rugby World Cup?

The Hon. Dr Arthur Chesterfield-Evans: Yes, I am.

The Hon. MICHAEL EGAN: Will you go to see it?

The Hon. Dr Arthur Chesterfield-Evans: I would hope so.

The Hon. MICHAEL EGAN: Does that mean that you will accept my invitation? I am not sure I extended it to everyone in the House.

The Hon. Dr Arthur Chesterfield-Evans: I would be happy to. Thank you.

The Hon. Jan Burnswoods: He is a Kings boy. They buy their rugby players.

The Hon. MICHAEL EGAN: And can't you tell!

CHIFLEY POLICE LOCAL AREA COMMAND

The Hon. RICK COLLESS: My question is to the Minister for Police. How can the Minister claim that the recent attestation of officers from the Goulburn Police Academy will boost country police numbers when, in the case of the Chifley Local Area Command, 11 probationary constables are replacing 12 officers on long-term sick leave, effectively leaving the command still under strength?

The Hon. MICHAEL COSTA: I am absolutely amazed by this question. If the honourable member believes that the probationary constables who will go to that particular area are not appropriate police officers to serve the community he ought to say that. Also, he ought to know that we have already made a commitment to use our December class to backfill against long-term sick leave. We will finally have a solution to this problem in December. We have record numbers of police. The Opposition has been highly embarrassed. It has made absurd assertions about policing numbers, crime statistics and government legislation. The Pinocchio of Pittwater has been caught out again this week making statements about criminal infringement notices [CINs]. He has made incorrect statements about police station operating hours and police crime statistics in Orange. He is fast developing a reputation as someone who cannot tell the truth about policing.

The Hon. Rick Colless: Point of order: The question specifically related to the Chifley Local Area Command. It has nothing to do with Pittwater or anywhere else. I ask that the Minister be directed to confine his remarks to the Chifley Local Area Command.

The Hon. Michael Egan: On another point of order: The Minister should not refer to the Leader of the Opposition as the Pinocchio of Pittwater because to do so is disorderly. What he can do is refer to the Opposition leader, who is commonly known as the Pinocchio of Pittwater.

The PRESIDENT: Order! I remind the Minister of the sessional order relating to questions without notice, which requires an answer to be relevant to the question.

The Hon. MICHAEL COSTA: I thank the Treasurer for his advice. I will no longer refer to the Leader of the Opposition as the Pinocchio from Pittwater. I will refer to him as the Leader of the Opposition, often referred to as the Pinocchio from Pittwater. He is the Pinocchio from Pittwater because he tells lies constantly.

The Hon. Patricia Forsythe: Point of order: The Minister for Police is flouting the ruling that you gave in response to the point of order, that is, that the answer had to be relevant to the question.

The Hon. Greg Pearce: To the point of order: The Minister has flouted the ruling, just as he flouted the rules of this House when he and the Minister for Mineral Resources passed before the Chair earlier today. I ask that you call him to order.

The Hon. John Ryan: To the point of order: The Minister made the statement that somebody lied. As I understand it, that accusation is an imputation and an unparliamentary remark.
The PRESIDENT: Order! Are you asking that the imputation be withdrawn or are you speaking further to the original point of order?

The Hon. John Ryan: I simply ask that he not use unparliamentary remarks.

The PRESIDENT: Order! I remind the Minister again that his answer must be relevant to the question, which related to police strength in Chifley. A general discussion about police strengths in other areas is permissible, but the Minister must answer the question.

The Hon. MICHAEL COSTA: We have record numbers of police at the moment. Last Friday 637 recruits graduated from the police academy. It was a great honour to attend that graduation and see the enthusiasm of our police, who will be sent out across a range of regional areas. The Opposition should point that out to the Pinocchio from Pittwater. [Time expired.]

The Hon. RICK COLLESS: I ask a supplementary question. Would the Minister care to elucidate on police numbers in Chifley?

The Hon. MICHAEL COSTA: I am pleased to elucidate on police numbers in this State. It is very gratifying to be police Minister at a time when we have a record budget of $1.8 billion and a record number of police. As the Treasurer rightly points out, it is because of his generosity that we have a record budget of $1.8 billion. Last Friday 637 new recruits graduated from the police academy. More importantly—and this has not been widely reported—11 people rejoined the Police Force. There is a sense of vigour and optimism in policing. The numbers I referred to when speaking about Operation Vikings—

The Hon. Dr Brian Pezzutti: Point of order: The Minister was asked specifically about police numbers in Chifley. He is now waffling. He has had time to make comments. He should now answer the question about police numbers in Chifley.

The PRESIDENT: Order! I have already ruled that the Minister may make general comments about police numbers. The Minister may continue.

The Hon. MICHAEL COSTA: It is pleasing to be police Minister at a time of a record budget of $1.8 billion, record numbers of police and a record number of recruits and rejoinees coming through the police academy. For the first time we have rejoinees. We are experiencing a renewed vigour in policing in this State. Operation Vikings has been a tremendous success. The only problem we have is that Pinocchio from Pittwater continues to tell untruths.

The Hon. Dr Brian Pezzutti: Point of order: The Minister has had plenty of time to make comments. He has now been asked a specific question about police numbers in Chifley. I ask that you direct him to answer the question.

The PRESIDENT: Order! As I ruled previously, the Minister may make general comments about police numbers. However, I remind the Minister that his answer must be relevant to the question.

The Hon. Patricia Forsythe: Point of order: I ask that you rule that the expression "Pinocchio from Pittwater" is out of order.

The Hon. Michael Egan: What about "Tutti Frutti"?

The Hon. Patricia Forsythe: That has been ruled out of order.

The PRESIDENT: Order! Certainly imputations against members of this House or of another House are out of order unless raised by substantive motion.

TED NOFFS AWARDS

The Hon. HENRY TSANG: My question without notice is directed to the Special Minister of State. Will the Minister advise the House as to the recognition given to individuals and organisations working in the drug and alcohol field?

The Hon. JOHN DELLA BOSCA: Sadly, the work of many individuals and organisations in the drug and alcohol field often goes unrecognised. However, recently I attended the Ted Noffs Awards evening, which is an annual event to honour the life-long work of the late Reverend Ted Noffs. As honourable members would be aware, the late Ted Noffs devoted much of his life to helping some of the most marginalised people in our community, particularly those with drug and alcohol problems. The Ted Noffs Awards recognise the exceptional work being done by individuals and organisations and promote best practice in the drug and alcohol field. Awards are given in the areas of treatment, prevention, organisational excellence, individual contribution, and youth and specialised service. Family Drug Support, headed by Tony Trimingham, won the organisational excellence award. This organisation provides an important support service to families and carers who struggle with the drug use of a loved one. The service relies on trained volunteers who provide 24-hour telephone support.

Many honourable members would also know of Garth Popple, Executive Director of "We Help Ourselves", which is an organisation with a 30-year history of helping people recover from drug and alcohol problems in a therapeutic community setting. Garth received a special commendation for his lifetime contribution to drug and alcohol service. I had the honour of presenting the Treatment Award to the Pharmaceutical Society of Australia for its Illicit Drug Training for Pharmacy Project. This project recognises that pharmacies, as key community service providers and respected sources of reliable information, are in a unique position to work with illicit drug users and address drug issues from a community perspective. There were many other deserving award winners, but I would like to particularly mention the special commendation award under the youth specific category received by the Mudgee Community Drug Action Team.

The Mudgee Community Drug Action Team is one of the 73 teams formed as a result of the New South Wales Drug Summit. The team was established in 2001. Its members consist of representatives from parents and young people in the community, local high schools, police, Police and Community Youth Club [PCYC] and other youth liaison officers, Mudgee Shire Council, Community Health, Legal Aid, the Frontline church and local pharmacists. The Mudgee Drug Action Team receives support and sponsorship from local business and the New South Wales Government. The team is clearly a great example of a community working together to address its local issues. I congratulate them on their work and on winning this award. I also congratulate Wes and Amanda Noffs on their organisation of the awards night and their work with the young people of New South Wales, particularly in relation to drug use and abuse.

NATIVE FORESTS CHARCOAL PRODUCTION

The Hon. IAN COHEN: My question is addressed to the Special Minister of State, representing the Minister for Planning as head of the Cabinet sub-committee on forestry. This question may also be referred to the Minister for Forestry. I seek guidance where a question relates to two portfolios. On a number of occasions a question has been referred to one Minister then sent to another Minister after the statutory time period and we do not receive an answer for a very long time. What proposals are being considered or investigated by the Government or State Forests regarding the production of charcoal from either the public native forests or private native forests in New South Wales? Will supply of charcoal production from public native forests be sourced only from areas subject to a regional forest agreement with the Commonwealth and, if so, which areas may be the source of supply?

The Hon. JOHN DELLA BOSCA: I will refer the question to the Minister for Planning and ask him to provide a prompt answer to the Hon. Ian Cohen. If the Minister for Planning is required to pass the question on to the Minister for Forestry, I am sure he will do so as expeditiously as possible.

The Hon. MICHAEL EGAN: If honourable members have further questions, I suggest they put them on notice.

DEFERRED ANSWERS

The following answers to questions without notice were received by the Clerk during the adjournment of the House:

PRIMARY SCHOOL STUDENTS COMPULSORY PHYSICAL EDUCATION

NSW Schools Fitness and Physical Activity Survey 1997,

HOTEL TRADING HOURS

WOMEN'S CONSTITUTIONAL CONVENTION

Questions without notice concluded.

ROAD TRANSPORT LEGISLATION AMENDMENT (INTERLOCK DEVICES) BILL

Bill received and read a first time.

Motion by the Hon. Eddie Obeid agreed to:

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

[The President left the chair at 1.11 p.m. The House resumed at 2.40 p.m.]

STANDING COMMITTEE ON STATE DEVELOPMENT

Report: Redevelopment and Remediation of the Rhodes Peninsula

Debate resumed from 28 August.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [2.40 p.m.]: The report on the redevelopment and remediation of the Rhodes Peninsula basically deals with the difficult area at which scientific information meets with legislative and planning regulation, the difficulty being that science has no certainty. Also, available land close to rail transport has significant financial incentives for those who wish to develop it, and, therefore, pressure is on the Government to come up with an appropriate method for approval. The land in question is divided into a number of sites and is quite complex because it involves different owners, remediation procedures and pollutants. The remediation methods comprise various attempts to treat the affected area or cover it with a physical barrier, such as walls, to stop leaching.

This may have an effect on concentrations which, as time passes, results in a number of chemicals remaining attached to elements in the soil or leaching down a gradient where a barrier does not exist. If the barrier is disturbed one finds a wall with a capping layer of relatively impervious clay-like soil. The soil is then treated to return it to appropriate levels, exposing the land to the atmosphere and to the danger of further leaching. Therefore, any treatment must result in low emissions so that it does not adversely affect those involved in the treatment process or surrounding residents when gases are emitted or leachate enters the water systems. If that happens and the mud becomes polluted, small creatures in the mud may be eaten by bigger creatures, which are then eaten by humans, and this chain of events may cause a higher concentration of pollutants to the extent that it becomes toxic.

When I was involved in occupational medicine, remediation studies were carried out on some of the sites around the Parramatta River. I was asked by extremely intelligent and well-motivated people to examine them. They wanted to be tested for everything because they were unaware of what pollutants were in the soil. I told them that was likely to be an unproductive exercise unless I knew their involvement. They told me that once a week they would take buckets of samples from the site to be examined by scientists at the laboratories. I told them that did not appear to be too toxic, but I asked whether they wore protective masks. They informed me there was no smell or visible evidence of pollutants. Test results proved normal. It is not merely a question of whether a toxin is present in the soil but whether it is biodegradable—in other words, whether it is in the air in a quantity that could be absorbed by the body or is ingestible. If that is not the case the danger is relatively small.

Scientists and supervisors working in laboratories many kilometres from the relevant site were thoroughly tested, with no expense spared, whereas the blue-singlet contractors driving the bulldozers and backhoes to excavate the site did not turn up to be tested. While I worked at Sydney Water an attempt was made to combine sewage sludge and waste products with fly ash, in some way that I did not quite understand, to get rid of the toxic material by incorporating it into bricks. It was claimed to make the bricks lighter and was said to be a brilliant idea. A pilot program was set up at Greystanes. The substances were put into a kiln and boiled up.

The experiment came to an abrupt end because the smell from the kiln was so awful that the entire laboratory was evacuated. The poor scientist responsible was given a very bad time by his colleagues as the man who stank out the office for some time. The experiment was considered to be a general failure. One of the hygienists I later worked with, who was himself a very accomplished industrial chemist, commented that the class of chemical involved was not destroyed by heat until it was some hundreds of degrees hotter than the kiln was capable of achieving. He said that the process might have worked if a hotter kiln had been used and it was a shame that the process was thrown overboard because it was quite a good idea.

These remarks are somewhat parenthetical to this debate. What is being suggested is thermal desorption technologies in which things are heated and then become harmless as they are effectively consumed in the heating process. The materials have to be excavated and put into fairly large kilns, because fairly large quantities of soil have to be remediated. A large amount of heat has to be put in and emissions will be given off. Whatever chemicals are there may be turned into the more toxic forms, which are often gases, than if they were still attached to the soil under some sort of covering layer or simply attached to the lower sediments. They become far more bioavailable—available to pollute the atmosphere and people working on the remediation process or people in the surrounding area.

It is one thing to say this is possible and to establish such a process and to say that we will monitor it and we will stop it if it causes more than a certain amount of measured pollution. Of course, once the project is started and huge amounts of money are put into excavating the soil, setting up the treatment technology and then using it, the items monitored may not be exactly as anticipated. Complaints from the residents may depend on wind directions. Technology that works in some areas may not work in others, depending on the previous contamination of the soil. After the commitment of such huge resources there can be an immense incentive not to desist following complaints from residents. An example is the Port Kembla copper smelter, where new technologies were grafted onto an old plant that had been closed for some years. It caused a problem to residents and they wanted to close it down. The monitoring, at least according to the residents, was quite unsatisfactory. The contract allowed certain peaks to be exceeded a certain number of times per month and so on, which meant that the health effects were difficult to follow.

All of this leads to the conclusion that if we are not sure of what we are doing it is perhaps better to do very little and to be very conservative in what we attempt. The recommendations ask that the Environment Protection Authority [EPA] be an approval body. It is very difficult for a group, often of lay people, to come to a conclusion as to what ought to be done on a complex issue. The Democrats advocate caution. I have not heard all the evidence and it is very difficult to assess the situation. As I said last week, I am impressed by the fact that the report has a number of dissenting reports. The Hon. Ian Cohen from the Greens has put considerable effort into his dissenting report. Other groups also had concerns about certain aspects. I would certainly urge caution. The science has to be very good before we embark on these projects. Certain groups being able to make a huge profit because of the price of Sydney real estate is a powerful driver, but the proponents of the project must define exactly what is in the areas and what they propose to do about them, and show the EPA that the technologies work. They must have a good grid of samples of the material that they are experimenting on, and demonstrate success with the material collected.

As in the case of the laboratory that was evacuated once certain material was heated, the products of combustion in these complex reactions of bound chemicals are not as easily predictable as one might think, particularly if one is not quite sure what one is starting with. So I would urge that a very conservative approach be taken and that the health of the residents who will ultimately inhabit the site be considered. The people involved in clearing up the site, the people picking up the soil in order that it should be remediated and the residents in the surrounding area must all be considered. With the spread of pollution, a lower level of pollution affecting a larger number of people may result in as many people being affected from the lower doses as if a smaller number of people were exposed to a higher level of pollution. Air pollution, water pollution and site pollution need to be balanced and taken into account when dealing with the planning aspects relating to the density of housing on the site, the amount of recreation facilities and the number of school kindergartens and so on.

If the costs of remediation are very high—I believe this is likely to be the case if significant volumes of existing sediments have to be processed—then the incentive is to put higher density developments in place to attempt to get the money back by amortising it with a larger number of people buying property. That may lead to an error in itself. If there are some areas that are not easily remediable it may be that the best solution is to put a relatively impermeable cap on it and use it as recreational land. That may be safer than trying to excavate it. Caution should be exercised. Individual areas have to be considered on their merits. Undertaking a massive project with very high density development to offset the costs is not a good idea, and I am concerned that that is what might happen.

I make the point that considerable information has been put together in the report. It is one thing to put it together, but another to remediate it. Certainly it causes me some concern. It is difficult for me, as a person who was not present at all hearings and who has not gone through all the scientific evidence, to make a recommendation that is as prescient as that of members who have that information. This is a difficult problem and the report attempts to do a good job, but the area must be managed with conservatism. The Environment Protection Authority must be allowed to have its say, and good science must be the basis for what is done; the basis should not be real estate and development policies.

The Hon. Dr BRIAN PEZZUTTI [3.00 p.m.]: As Deputy Chair of the Standing Committee on State Development I support the report and its recommendations. It is worth noting some of the history of the acquisition of the sites and the way in which they have been treated. For ever and a day the sites have been used for industrial purposes. Precinct A, the old Dulux and Bergers Paint site, is on the left as one travels down the peninsula. The site had been fixed up, substantially by aeration and treatment of the soil. The soil that had been contaminated by lead was taken away and disposed of. The land is now being developed by McRoss Developments. Precinct B, the old Union Carbide site, was previously the Timbrol Ltd plant on which various agents, including 2,4,5-T, 2,4-D and so on, were used. That site was of most concern to the community and the site about which much of the report is concerned. Precinct C, at the end of the peninsula, contained a flour mill and is now referred to as the Meriton site. The area of most concern to the people of Sydney, and of those who appreciate the waterway, is that heavily contaminated area offshore of Homebush Bay. The area has been extensively mapped but over time the sites have gone through various ownerships.

Although this is not mentioned in the report, from memory Union Carbide stopped manufacturing at precinct B and the company sold the site to Brierley Investments for about $60 million. Brierley spent some money remediating the site, but it all got too hard. Brierley vacated the site and handed it, lock, stock and barrel, to the Waterways Authority. Waterways held the site in trust. Eventually Trafalgar Corporate Pty Ltd came along, assisted by Thiess Services Pty Ltd, and was handed the site for nothing. Trafalgar was given $20 million by Waterways. That site had $60 million, $20 million and then another $20 million spent on it. When the site was handed to Trafalgar and Thiess to clean up, some $100 million had already been spent on it. Trafalgar and Thiess have to pay for the remediation, and that was the main subject of the committee's inquiry—cleaning up of not only precinct B but the whole foreshore. Obviously it is in the public's interest that the foreshore be cleaned up and that is why the State Government has invested so much money and has assisted the clean-up.

When the inquiry was set up the main complaint of local residents and other groups was that there had not been adequate transparency or communication. The community was concerned about the process of remediation. It is not easy for the corporate world to deal with issues such as remediation and technical aspects of this clean-up while, at the same time, keeping the community informed and on side. Corporations must take notice of the community's wishes while meeting their own commercial interests. That is a challenge for all developers and major corporations. Projects such as this involve many agencies that must be satisfied, not the least of which are the Environment Protection Authority, PlanningNSW, transport authorities and so on. Then, having dealt with all agencies, the corporations may think they have done their job, but they have not unless they have consulted and communicated with the community. Each and every agency should do the same thing. That is why these projects take a lot of time, but with consultation there is certainty. One thing that the committee strongly recommended in its report is better and more open communication with the community and organisations. For example, the community should be advised when soil is to be moved and why so many trucks are on the move so that people do not put out their washing on a certain day.

The big issue, of course, is how to remediate the site, particularly precinct B and the sludge off shore. How will the pollutants be removed after they have been dragged out of the waterway? The committee heard that two practical processes were being actively considered. One process is the installation of a high-temperature incinerator to destroy the pollutants. That method has been used in the United States of America and elsewhere. However, high-temperature incinerators have not received much approval and have not been very successful in New South Wales. Incineration is by far the cheapest and probably the most effective method identified by experts. The other option was to treat the polluted sludge on site, using slower heating and capturing all the matter produced by that heating. The pollutants are then evaporated. That was the more expensive method. However, that more expensive baking technology has not been used in Australia.

If the cheapest and most effective method, high-temperature incineration, is not available the committee recommends that the Government should come up with a few more dollars to enable the higher cost method to be used. That would be more acceptable to the community. The developer should not be helped with a $20 million contribution from Waterways, but Waterways needs more money to help dispose of and properly neutralise the pollutants. The committee was concerned that various groups and people feel that the wool is being pulled over their eyes, that they are being lied to, that secret deals are undertaken, or that they are not being told the full story because it is so complicated they will not understand. I believe that the committee understands about full and positive disclosure but, of course, it does not need to know the commercial details nor the commercial secrets involved in developing a process.

But what should be known is the inputs, the outputs, the costs, and what the policy impact on the community and the environment will be, could be or should be. The difficulty of engineers, consultants and the EPA dealing with these issues made just about every man and his dog very frightened, worried and concerned. However, as a result of the inquiry and commitments by the Environment Protection Authority, PlanningNSW and various other agencies the community better understands the protections put in place and the proposed processes for the proper disposal of pollutants within the sludge offshore—how it will be sludged up and how the big pile of stuff currently encased in clay will be dealt with, how many trucks will be needed, how much time will be taken and how much noise will be generated. People understand that developments of these types of sites will go ahead. The Minister called in the matter from the City of Canada Bay Council. I hope that Canada Bay council will be better informed about the progress of the development because a number of approvals will rely upon the goodwill and ability of Canada Bay council to communicate with its community.

The substantive issues were dealt with extensively. The drafting of the report by the secretariat and the ability for all of us to get our heads around remediation, technology and standards was nothing short of outstanding. Delay and obfuscation by government agencies and secrecy will kill any prospect of community participation, none of which have any place in New South Wales. Any delays will add to the cost, eventually, to the home buyer in that area. Ultimately, delays will increase the price of houses. WorkCover is involved in designing safe work practices. We call on NSW Health to provide leadership and proactive communication. People will ring NSW Health and ask, "What is the impact of this development?" NSW Health will reply, "That is the EPA." But the EPA says, "No, that is Health." We need a whole-of-government approach to these sensitive and difficult areas. As a former Minister for Public Works, the Hon. Ron Dyer knows that this is a big area in which Public Works is involved with the tender process. The development has other exigencies that are purely of a planning nature, one of which is transport around a major new housing development.

This dead factory site will become a new site housing hundreds of thousands of people. The southern boundary of the potential site is bounded by Concord Road. Its western boundary is a new walled suburb called Liberty Grove. The shops at Liberty Grove are almost tucked in underneath the road. Liberty Grove has a one-way traffic flow: you enter at one end and come out at the other. It is good for security and stops people from driving through a residential suburb. But, suddenly, a new series of houses, shops, tourist attractions and walkways will be established on its eastern boundary. This area of Sydney is renowned for its beauty and is right next to the Olympic site. Fishing, recreation and boating will form part of the lifestyle of this development next to the harbour. Parks are fine for passive and active recreation, but the whole of Sydney Harbour is one great playground. Sydney has an advantage over just about every other city in the world because of its lengthy coastline and massive harbour right in the middle. Homebush Park, Olympic Park and Bicentennial Park provide a huge expanse for recreation and tourist attractions. But we should be able to use the waterway.

Transport impacts on local people. Driving on Concord Road from west to east, Concord to Ryde, is a nightmare. The Rhodes station is almost derelict. It will have to be upgraded. We do not know how many of the people who live on the site will use the rail network. If people with kids move onto the site—they should and probably will given the nature of the development, its location in a park-like setting and Liberty Grove—there will not be enough school places for primary school kids. They will have to travel across major highways to get to the closest school. Provision must be made for a new primary school. Kids can travel further for high school, and many of them do. Kids travel for hours on trains and buses to get to the school they want to attend, but that is not an option for primary school kids. People were concerned about the exit from Concord Road to the back of Liberty Grove, which is an off ramp that will enable delivery trucks to access the retail area currently being developed. Lights from those vehicles will shine directly into what would otherwise have been fairly secluded units. They will affect children and shiftworkers.

These concerns have not been properly addressed. The committee called upon the Minister for Transport and PlanningNSW to develop better planning. Concord Road has many sets of traffic lights. For much of the time it is like a car park. Concord Road must be upgraded. The bridge across the river has only two lanes for traffic travelling in each direction. Travelling from Ryde to Homebush Bay is a nightmare. We need to develop a new planning process for roads, public transport and schools in the area. The public walkway will be developed as part of the plan. The developments do not include the waterway because they allow for public access and ownership of the walkway. It will be a major boon to the people of the area. They will be able to walk almost all the way around Homebush Bay, Rhodes Peninsula and back again to the lovely beach area. It will be a beautiful walk right around the harbour.

Eventually we will have the clean-up of the harbour around Homebush Bay and more housing for the people of Sydney. In spite of what Bob Carr says, many more people will come to Sydney than are here now. But we need action to achieve better communication, better consultation, more accurate assessment of transport needs, hospitals, schools and other infrastructure. I support the report. I read the dissenting statement of the Hon. Ian Cohen. I do not endorse many of his concerns. Ultimately, we have to trust our public agencies, such as the EPA, to do the right thing. We have to trust government, especially if it is open and communicates with the community. We are on a better footing than we were when the committee began its work. We will keep a close watch on it on behalf of the people of New South Wales. This development should be a new landmark in how government, developers and the community interact.

The Hon. TONY KELLY [3.20 p.m.], in reply: I thank the Hon. Ian Cohen, the Hon. Dr Arthur Chesterfield-Evans and the Hon. Dr Brian Pezzutti for their contributions to this debate. In particular, I thank the Hon. Dr Arthur Chesterfield-Evans for his veiled commendation of the work of the Committee and refer to his remarks about the value of Sydney real estate. The crux of the matter is that these blocks of land would not be cleaned up unless there was some value in the real estate. As the Hon. Dr Brian Pezzutti said, considerable money has been spent already and it is still a wasteland. If there were no value in the redevelopment of the real estate, the clean-up of the site would not take place nor, most importantly, would the decontamination of the foreshores and surrounding waterways. The land could be covered over and used for passive recreation—although contaminants may still cause a problem—but the waterways would still be polluted. At present, the return to the companies involved is a fine balance between the costs and the sale price of the land. The companies will have to work out those costs.

As to a suggestion that the committee recommended that the Government provide additional money if the costs were more than expected, the Hon. Dr Brian Pezzutti referred to recommendation No. 5, which is that the Government provide supplementary strategies over and above the $20 million. Those strategies could be services in kind; they do not necessarily mean cash. The Hon. Dr Brian Pezzutti also said that consultation was perceived as a problem at an early stage of the project. However, it improved significantly during the period of our inquiry. The committee recommended that the Government keep a close eye on that area. As alluded to by both the Hon. Dr Brian Pezzutti and the Hon. Dr Arthur Chesterfield-Evans, the Environment Protection Authority [EPA] is the technical expert. It is up to the EPA to properly assess the two methods of thermal desorption, whether direct or indirect. Honourable members should bear in mind that at the time of the report some of the development approvals had not been lodged, so it was difficult for the authority to make an assessment. The assessment process will continue over the next one to two years.

In its 33 recommendations the committee agreed to have a watching brief, but we have faith in the EPA to correctly monitor the project and to impose the necessary controls to ensure that this blight on the environment adjacent to a great waterway and the Homebush Olympic site becomes a Sydney landmark in the future. I particularly thank the committee members: Deputy Chair the Hon. Dr Brian Pezzutti, the Hon. Ian Cohen, the Hon. Henry Tsang and the Hon. Ian West. Every member brought to the committee different views, different backgrounds and different expertise. Every member genuinely tried to ensure that this report produced a good result for the community. I believe that all the members put aside politics in doing so. I join the Hon. Dr Brian Pezzutti in thanking the committee secretariat: Steven Reynolds, Annie Marshall, Cathy Nunn and particularly Rob Stefanic. We were very fortunate in that in one of his past lives Rob was involved in environmental protection using this type of technology. He was able to bring to the committee and the report a great deal of expertise. I commend the report to the House.

Motion agreed to.

STANDING COMMITTEE ON LAW AND JUSTICE

Report: Home Building Amendment (Insurance) Act 2002

Debate resumed from 3 September.

The Hon. RON DYER [3.25 p.m.]: When the House debated the Home Building Amendment (Insurance) Bill 2002 on 9 May this year it resolved to refer the provisions of the bill as passed to the Standing Committee on Law and Justice for inquiry. The terms of reference for the inquiry were straightforward. The committee was charged with examining the impact of the Home Building Amendment (Insurance) Act 2002 on home warranty insurance, home builders and consumers. The inquiry involved the examination of 23 submissions and the consideration of evidence given by 16 witnesses in five public hearings. This report represents the results of that inquiry. The Standing Committee on Law and Justice has not been alone in examining issues concerning home warranty insurance. The committee's inquiry coincided with the completion of the National Review of Home Builders Warranty Insurance and Consumer Protection. The national review was conducted for the Federal Ministerial Council on Consumer Affairs by Professor Percy Allan, AM. The committee had the benefit of hearing from Professor Allan as a witness in its inquiry.

Honourable members will also be aware of the excellent work of the Joint Standing Committee on the Quality of Buildings, which recently completed its inquiry into the quality of building work in New South Wales. That review touched on home warranty insurance, as well as other quality of building issues that relate, in many ways, to the need for this form of insurance. By way of background to the implementation of the amending Act, the report describes the home warranty insurance market and sets out the events leading up to the announcement of the reforms. All Australian States and Territories, including New South Wales, have legislated for mandatory home warranty insurance. Following the commencement of the New South Wales scheme in May 1997, the home warranty insurance market experienced a relatively calm initial period. However, like other insurance markets, it was badly affected by the collapse of HIH Insurance in March 2001 and the events of 11 September 2001. Consequently, major insurers in the market indicated to the Government that the current scheme was not viable. It became clear that the long-term viability of the market was under threat.

In response, the New South Wales and Victorian governments undertook negotiations with the insurance industry and other interested parties to find a solution. During these negotiations, insurers indicated that, without certain reforms, their presence in the market was tenuous. The two governments subsequently announced uniform reforms to their home warranty schemes on 13 March this year. Some of the reforms were implemented administratively and in New South Wales the remainder were realised through the passage of the amending legislation. The purpose of the amendment Act was to create stability in the home warranty insurance market and to thereby ensure the long-term viability of the New South Wales Home Warranty Insurance Scheme. The amendment Act came into force on 1 July 2002. It amended the Home Building Act 1989 and the Home Building Regulation 1997 to make provisions with respect to home warranty insurance for residential building work, owner-builder work and the supply of kit homes. The amendment Act aimed to ensure the long-term viability of the Home Warranty Insurance Scheme by implementing five main reforms.

First, it provided that home warranty insurance for residential building work, the supply of kit homes and for certain other work, is now to be last resort insurance. This means that home warranty insurance only covers losses that arise where the builder or supplier is insolvent or dead or has disappeared. This reform aligns New South Wales with the home warranty insurance schemes in South Australia, Victoria, Western Australia, the Australian Capital Territory and the Northern Territory. The committee found the "last resort" reform to be the most significant of those contained in the amendment Act. In fact, participants in the inquiry from the insurance sector identified it as the most important factor contributing to stabilising the market.

The report notes that the last resort reform as well as other reforms in the amendment Act are in line with the findings of Professor Allan's review. The last resort reform rids New South Wales of what Professor Allan described as the "cruel hoax" of the first resort schemes. In this regard Professor Allan argued that under the first resort scheme, which existed in New South Wales before the amending legislation, insurance companies required consumers to exhaust every possible avenue of redress before making a claim on insurance, effectively rendering it a last resort form of redress.

Secondly, with regard to losses arising from defects, the amending legislation creates two separate types of loss, each with a different period of cover. For a structural defect the period of cover is six years after the completion of the work, the supply of the kit home or the end of the contract relating to the work or supply, whichever is the later. For loss arising from a non-structural defect the period of cover is two years. Prior to this reform the period of cover for all types of loss—except for loss arising from non-completion—was seven years. Therefore, the reform represents a reduction in the extent of cover for consumers.

Thirdly, the amendment Act enables the Minister for Fair Trading to approve alternative home building indemnity schemes or arrangements. Participants in the inquiry expressed general support for this reform and no negative impacts of this reform were identified. The committee has recommended, however, that the Minister for Fair Trading ensure that an appropriate regulatory framework is imposed on any new arrangements that are approved. The committee is aware of at least two industry organisations—the Master Builders Association of New South Wales and the Swimming Pool and Spa Association of New South Wales—that are currently exploring the possibility of establishing alternative arrangements pursuant to the new enabling provisions.

Fourthly, the amendment Act provides that losses indemnified by an insurance contract will now include any legal or other reasonable costs incurred by a consumer in seeking to recover compensation from the contractor or supplier for the loss or damage, or in taking action to rectify the loss or damage. This reform introduces another category of loss suffered by a consumer that will be covered by home warranty insurance, and in this regard confers a positive benefit on consumers.

Finally, the Act enables insurers to limit liability for losses arising from the non-completion of building work to 20 per cent of the contract price. This reform reduces the liability of insurance providers, and thereby the extent of cover afforded to consumers. The committee observed that there was a consensus among inquiry participants from the insurance sector that the amendment Act has achieved its aim of promoting stability in the home warranty insurance market. I note in this regard that the Insurance Council of Australia advised the committee of its view that:

Home Building Amendment (Insurance) Act 2002

The reforms have reduced the overall extent of insurers' liability, and consequently their overall risk. While the committee was made aware of some scepticism that the reforms would lead to a reduction in premiums, the major insurer in the market, Royal and SunAlliance Insurance Ltd, informed the committee that its premiums could drop by as much as 20 per cent as a result of the reforms. Royal and SunAlliance advised the committee that the last resort reform will be the key to premium reductions. The committee observed general optimism among insurance sector participants that additional insurers may now consider entering the market in the wake of the reforms. Indeed, the committee is aware of at least one insurer that is actively considering this option. As I mentioned previously, two industry associations informed the committee that they were examining the possibility of establishing alternative indemnity arrangements under the new provisions.

The committee believes that the amendment Act has enhanced the long-term viability of the New South Wales Home Warranty Insurance Scheme. However, the report also identifies some concerns in the building industry about insurers. For example, several submissions and witnesses expressed concern about the lack of transparency of the financial criteria used by insurers to determine eligibility for home warranty insurance. The committee was pleased to note that the Department of Fair Trading and some insurers are undertaking initiatives to improve transparency. The report also notes that there is a lack of comprehensive statistical data about insurance premiums, claims on insurance and payouts. This point was also made by Professor Allan in his review. The committee recommended that the Minister for Fair Trading should specify, as part of the conditions of approval of insurers, that insurers must supply the Government with detailed market data concerning premiums, claims and payouts.

In regard to home builders, the report notes that the evidence presented to the inquiry indicated that the amendment Act is perceived as having both positive and negative impacts on home builders, although none of the negative impacts were identified as being particularly onerous. Negative impacts include uncertainty among builders about the nature of the reforms, a potential reduction in cash flow that may be caused by the 20 per cent liability cap for non-completion claims, and delays in dispute resolution processes that may be caused by the last resort reform. As to potential delays, the committee has recommended that after the amendment Act has been operational for six months the Minister for Fair Trading should consider the impact that the reforms have had on dispute resolution resources with a view to meeting any additional demands on the resources of the Consumer, Trader and Tenancy Tribunal and the Building Conciliation Service. The committee has also recommended that the Department of Fair Trading develop information that informs home builders and swimming pool and spa builders of their obligations with regard to home warranty insurance in order to clarify any areas of confusion created by the amendment Act.

In terms of positive impacts, the last resort reform puts responsibility for defective and incomplete work in the hands of builders rather than insurers and emphasises the need for amicable and timely dispute resolution. This reform was viewed as impacting positively on builders by encouraging quality building work and speedy dispute resolution. The report also notes that any new alternative indemnity arrangements established by industry associations pursuant to the new provisions will provide builders with much-needed choice and may also contribute to a reduction in premiums. As the Home Warranty Insurance Scheme is designed primarily to provide consumer protection to home owners, the committee was particularly interested to ascertain the impact of the amendment Act on consumers. However, the committee regrets that there was only minimal contribution by consumers to this inquiry, although participation by the Building Action Reform Group gave the committee some useful insights.

The report acknowledges the view expressed by the Building Action Reform Group that the amendment Act will impact negatively on the level of consumer protection afforded by home warranty insurance. In this regard the report identifies three reforms that contribute to a reduction in the extent of cover provided by home warranty insurance. Those reforms are: the last resort reform, the 20 per cent cap on liability for non-completion of building work, and the reduction in the period of cover from seven years to six years for structural defects and two years for non-structural defects. The report notes, however, that this view of the impact of the reforms on consumers must be tempered with an understanding of the background and purpose of the amendment Act as a means of preventing insurers from withdrawing from the market. In this regard I quote a succinct statement made by a witness from the Department of Fair Trading, who said:

The report also identified that not only has the scheme been maintained but also some of the reforms will clearly have a positive impact on consumers. In this respect the report identifies the extension of liability to cover "legal and other related costs", and the new provisions that enable the Minister for Fair Trading to approve the establishment of new alternative indemnity arrangements. Professor Allan also identified that the last resort reform will have a positive impact on consumers by dispelling the myth of first resort insurance cover.

In order to ensure that the negative impact of the reforms on consumers is kept to a minimum, the committee has asked that the Government considers some issues relating to the manner in which the amendment Act impacts on consumers. For example, the committee recommends that the Government consider examining the impact that the reform that permits a 20 per cent cap on liability for non-completion claims will have on consumers. The committee recommends that the Department of Fair Trading developed information for consumers clearly explaining the nature of home warranty insurance in light of the reforms, with a particular emphasis on the last resort nature of this form of insurance. The report also recommends that the Government consider the issues raised by consumers concerning aspects of the Home Warranty Insurance Scheme that the amendment Act and the terms of reference for the inquiry did not address.

The committee trusts that this report will provide the Government and other interested parties with a useful analysis of the impact of the Home Building Amendment (Insurance) Act 2002 on home warranty insurance, home builders and consumers, as well as the views of various stakeholders in this regard. The report presents a balanced analysis of the evidence and submissions made to the committee during the inquiry and makes appropriate recommendations based on that analysis. If I might conclude by saying that the committee's inquiry revealed that the amendment Act has contributed to the development of a more stable and robust home warranty insurance market in New South Wales. The committee believes that the adoption of the recommendations made in the report also will contribute to this important goal.

I would like to express some sincere thank yous, first of all to the committee members—especially the Hon. John Ryan, deputy chair of the committee—for their constructive, bipartisan and unanimous approach to the inquiry and the report. I trust that that bipartisan effort and the goodwill that the Hon. John Ryan has shown will lead the Minister and the department to consider sympathetically areas in which the committee has requested that some consideration be given to further reform of the legislation. I would also thank the witnesses who appeared before the committee at its five public hearings. I thank also the authors of the submissions to the inquiry.

By way of ultimate conclusion, I thank the committee secretariat, especially Tanya Bosch, the Director of the Standing Committee on Law and Justice, for general oversight and proofreading; Rachel Callinan, for her wonderful research and assistance in drafting the report, and for her persistence in advantaging the committee; Heather Crichton for the organisation of hearings and administrative assistance; and Christine Lloyd for her administrative assistance. I believe the report is a sound and constructive one and that it does make a worthwhile contribution to the assessment and consideration of the amending legislation to which I have referred.

The Hon. JOHN RYAN [3.40 p.m.]: In the couple of minutes that I have available today to start a contribution on the take-note debate on the report I would like to draw attention to something that has occurred during the course of this week to one of the important witnesses who appeared before the committee. I refer to Mrs Irene Onorati, President of the Building Action Review Group. Mrs Onorati is well-known to many members of this House and to members of the Department of Fair Trading and the Minister's office. During the course of this week Mrs Onorati's husband died. His funeral will be on Saturday.

Mrs Onorati has made a phenomenal contribution to benefit the consumers of this State. It is appropriate at the beginning of my address to pay attention to the fact that her family have been long-suffering in allowing her to make that contribution, which involved many, many hours of her time—no doubt time she could have spent with members of her family. In that regard I would have to say that her late husband, Joseph, was extremely patient. In that regard I pay at least some attention to his contribution to the work of the Building Action Review Group. I am sure that all honourable members who know Mrs Onorati would want me, on behalf of the House, to convey the condolences of all honourable members to Mrs Onorati and her family at this time.

With regard to the report, first of all I would like to say that the reason the committee came to commence its inquiry was that the reforms proposed to the home building insurance scheme in this State were presented to this House within 24 hours of their being considered by the Legislative Assembly. In the main, the detail of the bill was not available to the House, to honourable members, to consumers or to other important industry groups until the bill had been drafted and presented. So, within 24 hours, some very important legislation went through both Houses of Parliament. I believe, given that there had not been the normal time for consideration of it, particularly with consumers and some building groups, it was absolutely vital there be an opportunity for those people to make presentations to a parliamentary committee so that the committee would know of any areas in which the new arrangement would run roughshod over their legitimate rights. It was important for us to know that so that the scheme could be modified at an early stage.

It would be fair to say that the insurance industry is quite happy with the reforms introduced by the Government. But, by and large, as the committee discovered, it was the insurance industry that wrote the reforms. Those reforms were largely nutted out and determined by a series of meetings that took place in both Victoria and Sydney between the Minister and representatives of insurers, and perhaps industry groups also closely associated with insurers. Essentially, the insurers presented the Government with a Hobson's choice: either leave the industry or change. In many instances the changes were ones that consumers and builders would not necessarily find palatable. In that regard I had some sympathy for the Government's position. That had nothing to do with the political colour of the Government. However, I believed it to be important that these arrangements be subject to more scrutiny. I am grateful for the fact that the Minister quickly agreed to allow the committee to carry out an inquiry, provided the legislation passed through the Parliament on that day.

Pursuant to sessional orders business interrupted.

MARINE LEGISLATION AMENDMENT (MARINE POLLUTION) BILL

Bill received and read a first time.

Motion by the Hon. Henry Tsang agreed to:

LAND AND ENVIRONMENT COURT AMENDMENT BILL

Second Reading

The Hon. HENRY TSANG (Parliamentary Secretary) [3.45 p.m.]: I move:

I seek leave to incorporate the second reading speech in Hansard.

Leave granted.

Land and Environment Court Amendment Bill 2002

Land and Environment Court Act 1979

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Conveyancing Act 1919

Environmental Planning and Assessment Act 1979

The Hon. JAMES SAMIOS [3.46 p.m.]: This bill will amend the Land and Environment Court Act 1979 with respect to the appointment and functions of commissioners and will amend the Environmental Planning and Assessment Act 1979 by extending the period of time in which a local council can determine a development application. By way of background, the bill aims to introduce reforms that have arisen from recommendations of the Land and Environment Court working party that were released in September 2001. The bill creates two new procedures relating to development applications brought under section 97 of the Environmental Planning and Assessment Act. The first relates to matters heard and disposed of by way of conference held on the site of the proposed development and presided over by a commissioner of the court for developments valued at less than half the median sale price for dwellings in the local government area. It also includes appeals which are not of great public interest. Second, court hearing matters may be determined by a judge, a commissioner or a multimember panel at the direction of the chief judge for appeals which are likely to be lengthy, complicated, or of great public interest.

The bill also provides for the appointment of part-time and full-time commissioners in much the same way as part-time magistrates are appointed. It also broadens qualifications for appointment as commissioner. For example, urban design and heritage is added to the list of fields of expertise that qualify a person for appointment as a commissioner. The bill allows for the granting of easements similar to the power given to the Supreme Court in the Conveyancing Act. Further, the bill extends the length of time from 28 days to one year within which a local council may review its determination of a development application and, if the application is the subject of an appeal, up to the time when the court hands down its decision. The bill provides for a streamlined process, which is less formal and less costly for relatively inexpensive developments. On the other hand, it creates uncertainty about a development as a council may review its decision up to one year later. The Opposition does not oppose the bill.

Ms LEE RHIANNON [3.50 p.m.]: Reforms to the Land and Environment Court are urgently needed. Amongst local communities fending off the ravages of developer onslaught the court's record is so bad that it is known almost universally as the land and development court. That is clearly an insult, and from my experience moving around New South Wales working with many community organisations that are battling bad decisions of this court, it is a term that is used more and more. Unfortunately, the reputation of that court is well earned. Around New South Wales there are spectacular monuments to the bias of the court and the laws that it enforces.

The bill was conceived from the public outrage that has arisen from a growing perception that the court is developer-friendly, unskilled in dealing with heritage and urban-amenity issues and hostile to local communities seeking to preserve the public assets of open-space heritage and high-quality streetscapes. As the outrage gave birth to increasing media attention the Government knew that it had to act unless it was to suffer the inevitable electoral damage. Essentially, the Government is hoping that this bill will help it over the line come 22 March. The New South Wales Labor Party has been hamstrung by the necessity to keep the developer lobby happy so that the crucial campaign donations will continue to flow into its coffers.

In the four years that I have been a member of this House, time and again I have seen this taint democracy in this State. The Carr Government has fallen back on that time-honoured first law of politics: When in doubt conduct an inquiry. The results of that inquiry are, in part, expressed in this bill, which contains a number of minor provisions to change the way in which appeals on development applications to the Land and Environment Court operate. Although some of the changes might redress in a minor way some of the inbuilt bias of the court and the laws surrounding development assessment in New South Wales, it is clear that these go nowhere near the changes needed to bring balance and fairness to the urban environment.

For example, let us consider the change to add urban design or heritage to the list of fields of expertise that may qualify a person for appointment as a commissioner. This raises two obvious issues. First, it makes no sense to appoint to the court a commissioner who does not have both those qualifications. The current change requires expertise in only one or other of those fields in a long list of possible qualifications. Second, the fact that in the past these have not been part of the mandatory expertise of the court is perhaps why the court has such a lousy track record. The minor nature of this amendment exemplifies the failure of the bill to seriously address the urban and regional planning crisis that now faces New South Wales. I do not use that term lightly because we believe there is a real crisis in the processing of development applications across New South Wales because of the weakness in the law.

The Greens strongly oppose other aspects of the bill. We do not support the appointment of part-time commissioners unless they are prohibited from working in another development-related profession during their tenure. The Labor Party should have immediately picked up on this. How could a person serve as a commissioner while working in another field of development? The Greens are deeply concerned that the appointment of part-time commissioners will open the floodgates to conflicts of interest, which always favour developers. This is a problem for the community but it may be seen as a virtue by the Government, which is busy seeking favour from its long list of potential donors in the development industry.

Part-time commissioners may seek work from developers whose matters are brought before them. Even if that is not the case, without conscious efforts they may be constrained to display their disposition towards developers. It is bad enough that consultants are commercially obliged to give advice and evidence that favours the developer. To place commissioners in the grip of the same set of perverse incentives would leave the community with both biased evidence and systematically biased adjudication.

The provisions that allow for on-site hearings for small matters may be of some assistance in the efficient administration of the court, but will not necessarily enhance the ability of communities to protect themselves from inappropriate development. There has already been some experience of this with hearings on site for which written judgments are not provided, as can be the case for the new on-site hearing matters. The Greens have received reports of a number of cases in which ludicrous propositions from developers have been accepted. Because the matters were resolved without written record, these propositions are not open to subsequent challenge. One example was a developer who was able to persuade a commissioner that a 1.5 metre driveway entrance could be used as a passing lane, thus justifying a development that added significant volumes of traffic to a narrow laneway.

By approving this development the commissioner has created traffic chaos. This problem was entirely foreseeable but without a written record of the commissioner's reasons for accepting the additional traffic burden there is little action that the affected community can take. Such problems arise because of the absence of the discipline on commissioners that would come from providing written records. In summary, there is little in this bill that will comfort the communities of New South Wales that are struggling desperately against the avarice of developers in a system that is biased and most unfair. The Government lost, or perhaps more correctly I should say gave away, an opportunity to bring real reforms to this area of environmental protection and to bring fairness and justice to communities across New South Wales.

In 2000 Sydney City Council published its "Unwanted Legacies of the Land and Environment Court of NSW". This publication outlined in some detail 35 separate approvals by the court, each of which had massive adverse consequences for the local community. This document makes a compelling case for reform of the court. No-one could look through this document without being horrified by the insensitivity of the court and its failure to express the public interest. The document also suggests six reforms. First, the court should review decisions of consent authorities on the basis of reasonableness. It should not be an alternative decision maker or parallel forum. Second, the court should comply with the democratically adopted planning policies of councils, not make its own policy decisions.

Third, the court should allow merit appeals only for deemed refusals, that is, where a consent authority has not made a decision on a proposal. Fourth, each consent authority should have a local appeals panel that is less legalistic, quicker and cheaper for small matters. Fifth, there should be a mechanism which utilises better expertise and a broader perspective for large and complex applications, that is, applications over $10 million in value. Sixth, court approvals should be streamlined to improve efficiency, reduce costs and prevent amended proposals being lodged with the court which the consent authority has not considered.

These are sensible and easily implemented recommendations. While the Greens would like to see more far-reaching reforms, Sydney City Council's suggestions would be an appropriate starting place. Not one of these recommendations was implemented in the Government's reform package. Time and again we hear how close the Government is to Lord Mayor Mr Frank Sartor. A previous representative of the Sydney City Council, the Hon. Henry Tsang, is a member of this Chamber. But despite that closeness, when it comes to real action the Government is seen to be lacking. The Government is not prepared to entertain even the most basic of real changes to the court, because it is not interested in offering the slightest brake on developers.

The Greens will continue to pursue the issue of developer donations. Donations from that sector of the business community are deeply corrupting the democratic process in this State. The March 2003 election will see these issues put before the people of New South Wales. Every day we see the physical evidence of the Government's addiction to developer campaign donations. Every day we see the results of the Government's failure, of its refusal to create a fair and just development assessment system. It will be for all of us to judge.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [4.03 p.m.]: When the Land and Environment Court was established in 1979 it was thought of as a very significant and bold concept: creating a specialist court with an integrated jurisdiction, both criminal and civil, comprising a judge and non-lawyers with technical expertise in planning, and with exclusive jurisdiction to interpret the Environmental Planning and Assessment Act 1979. On the twentieth anniversary of the court in September 2000 Justice Bignold said in a presentation to the Nineteenth National Environmental Lawyers Association Annual Conference that the establishment of the court had profoundly influenced two important aspects in the development of environmental laws in New South Wales:

The Democrats acknowledge the significance of a court dealing with planning issues that has the same status as the Supreme Court in the hierarchy of courts in New South Wales, but the Land and Environment Court has certainly not been immune from controversy. Its numerous critics have dubbed the Land and Environment Court as "the developers' court", citing the merit appeal option frequently used by developers. This was highlighted in a publication titled "Unwanted Legacies of the Land and Environment Court of NSW", by the Sydney City Council. Although I do not always agree with Councillor Frank Sartor's ideas on how the city should be run, I think his foreword summed up the current situation very well indeed:

I believe that this is quite unsatisfactory and that the court has been a big problem. In fact, in my more cynical moments I think that it is part of the Carr Government's blunt strategy of urban consolidation. That strategy is twofold: Firstly, because of land tax people with valuable land cannot afford to live on it. They have to have it developed because land tax is such a powerful disincentive to the status quo. Secondly, the Land and Environment Court overrules council planning. Thus, effectively, the Carr Government has achieved the necessity for development and the developers can overcome council plans. This produces urban consolidation but without good planning.

The Carr Government has effectively dismantled council planning, because any planning that councils may attempt can be dismantled in each application by the Land and Environment Court. Planning NSW has not had alternative plans. So, effectively, Sydney is being urban consolidated without an overall plan. That is very convenient if one is trying to help developers but in terms of a real vision for the future of Sydney it is a non-vision. It is part of the hypocrisy of the Carr Government, which talks big about architecture, planning, development, controls and so on; yet the two basic drivers of development of Sydney have nothing much to do with planning or controls. Quite the converse: they are about giving developers victory in a very ad hoc fashion.

In response to the criticisms of people such as Frank Sartor, in early 2000 the Land and Environment Court working party was created to examine the way in which the court currently reviews decisions about development applications. The working party released a report in September 2001. The amendment bill will implement 10 of the report's 37 recommendations and amend the Land and Environment Court Act 1979, the Environmental Planning and Assessment Act 1979, and the Statutory and Other Offices Remuneration Act 1975. Submissions made to the working party reviewing the court's role in the State planning system contained a wide variety of opinions on the operations of the court.

Issues of main concern were the merit review appeal against a council's refusal of a development application and the need for reform of the planning system. The majority of the working party considered that the court's jurisdiction to determine development applications on merit should be retained. Recommendation 8 relates to the modification of consents granted by the court. The Environmental Planning and Assessment Act and regulations should be amended to give councils the power to modify development consents granted by the court. Schedule 2 [6] enables a council to modify a development consent granted by the court.

Recommendation 10 addresses councils' power to review their determinations. The Environmental Planning and Assessment Act should be amended to allow councils to refute their decisions in relation to development applications at any time until the expiration of the period within which an applicant may appeal or the application is determined by the court. Schedule 2 [2] provides that a council may not review its determination of a development application after the time for making an appeal expires. Effectively that is the same, but is expressed the other way around.

Recommendation 14 addresses merit reviews. The majority of the members of the working party considered that the court's jurisdiction to determine development applications on the merits should be retained. I confess I believe that recommendation ought to be modified, because it is the nub of non-planning in a more global sense, apart from evaluating each development application. Recommendation 15 addresses qualifications for appointment. The list of qualifications for appointment as a commissioner should include special knowledge of, and experience in, urban design or heritage. Schedule 1 [2] extends the list of qualifications to include those two areas.

Recommendation 17 addresses the use of panels. Where appropriate, major matters should be decided by panels comprised of commissioners, or a judge and commissioners with relevant expertise. Schedule 1 [7] stipulates that court hearing matters are to be dealt with by the court or by a panel consisting of either two or more commissioners or a judge and one or more commissioners. Recommendation 18 addresses part-time commissioners. The court should have the power to appoint part-time commissioners. Schedule 1 [3] enables the appointment of full-time and part-time commissioners. I note that recommendation 18 also suggests that part-time commissioners should not act as expert witnesses or advocates before the court during their tenure. That provision is not included in the bill, but it should be. We do not want advocates to be judges, and vice versa.

Recommendation 25 defines minor matters. Schedule 1 [7] makes a distinction between on-site, or minor, hearing matters and court, or major, hearing matters. Recommendation 26 addresses conferences for minor matters. Conferences should be compulsory for minor matters. The commissioner presiding over such a conference should have the power to make a binding decision. Schedule 1 [7] stipulates that on-site hearing matters are to be dealt with by means of a conference presided over by a single commissioner, who may dispose of the matter at the conclusion of the conference.

Recommendation 27 relates to major matters. Major matters should be dealt with by formal hearings unless the parties reach a settlement by way of alternative dispute resolution facilitated by the court. Matters that are not on-site hearing matters are court hearing matters to be dealt with by the court or by a panel. Recommendation 37 relates to ancillary orders. The court should be given a broad power to grant easements as ancillary orders to a grant of developmental consent. Schedule 1 [10] enables the court to grant such an easement. I refer now to schedule 1, which relates to hearings of class 1 proceedings brought under section 97 of the Environmental Planning and Assessment Act. Class 1 court proceedings are appeals against a council's refusal of a development application.

Schedule 1 to the bill amends the Land and Environment Court Act by providing two new procedures for such appeals relating to development applications brought before the court under section 97 of the Environmental Planning and Assessment Act. Item [7] of schedule 1 inserts new sections 34A to 34D into the Land and Environment Court Act. Under that item, class 1 proceedings for developments that are of no significant interest to the public or neighbouring properties and/or those valued at less than half the median sale price for that area can be dealt with on site. Developments that are not determined on site are court hearing matters. They will focus on appeals involving important public interest and/or developments of substantial monetary value.

I refer now to the granting of easements. Item ] 10] of schedule 1 deletes section 40 and inserts a new section that will give the court broad powers to grant easements as ancillary orders to a grant of development consent under circumstances outlined in subsection (2). Such a ruling can be made only by a judge. Under subsection 5, the court must consider the objections of landowners who may be affected by works in connection with the easement. Under subsection (7) the court can order payments of compensation to those affected by the easement if it sees fit. However, under subsection (8) the costs of proceedings under section 40 are to be borne by the applicant.

I refer now to the appointment of commissioners. Items [11] to [16] of schedule 1 provide for the appointment of full-time and part-time commissioners. This implements recommendation 18 of the working party's report, on which a number of honourable members have commented. Item [2] of schedule 1 extends the list of qualifications for appointment of commissioners, adding the qualification of special knowledge of, and experience in, urban design or heritage. Schedule 2 makes amendments to the Environmental Planning and Assessment Act 1979 and refers to applications for review of council determinations. Item [2] of schedule 2 inserts a new section 82A (2), which allows councils to review development application decisions at any time up until the expiration of the period within which an applicant may appeal or before an appeal against the determination is disposed of by the court.

Item [5] of schedule 2 covers modifications of consents. The council must notify the applicant of modifications involving minimal environmental impact or modifications that fall under subsection (2) of section 97. Item [6] allows applicants to amend original development applications if the council is satisfied that the amended development application is substantially the same development as that in the original application. It will also apply to the modification by councils of consent granted by the court. Schedule 3 amends schedule 2 of the Statutory and Other Offices Remuneration Act 1975 to remove obsolete references to a senior assessor or assessor, under the Land and Environment Court Act 1979, and to replace them with references to a senior commissioner or full-time commissioner.

I have received a number of comments from other groups about this bill. The bill incorporates the appointment of full-time and part-time commissioners, as suggested by the report. However, the report stipulated that part-time commissioners should not act as expert witnesses or advocates before the court during the period of part-time tenure. New South Wales Young Lawyers noted that there is nothing in the bill to prevent this potential conflict of interest. The part-time commissioners remuneration will be set by regulation, but was pro rata payment based on full-time commissioners salary considered by the Government?

The extension of the list of qualifications required for the appointment of commissioners is to be encouraged: it will strengthen their knowledge base. At the same time suggestions have been made by the Nature Conservation Council, the Greens and the Hon. Richard Jones that commissioners should hold qualifications across a range of areas, as set out in section 12 of the Land and Environment Court Act rather than just one or two qualifications. Both New South Wales Young Lawyers and the Nature Conservation Council raised concerns about public participation. With development applications being amended on the way to court, neighbours may not be afforded an opportunity to comment on the revised application.

The Nature Conservation Council suggested that the Environmental Planning and Assessment Act should be amended to provide that each person who objected to the initial grant of the consent should be notified in writing and that the period within which the public may make a submission on an advertised modification application should be 28 days. It is suggested that the time limit for commencement of appeals against decisions of a consent authority under section 98 of the Environmental Planning and Assessment Act be increased from 28 days to two months. Obviously if someone is on holidays they may miss the notification, and it may take some time for them to respond. Additionally, the Act should be amended to provide that in appeals brought under subsections 97 and 98 of the Act, the court has the power to order that third parties be joined as parties to the proceedings where those third parties are seeking to raise issues that would otherwise not be adequately addressed.

Except for objectors to designated development, there is no automatic right for third parties to be joined to class 1 proceedings where they seek to oppose a development. The Democrats support that provision because public participation in those decisions is absolutely vital. The idea that merely because someone owns some land they can do what they like with it, without regard to the community in which the development exists, is a complete nonsense. The working party made numerous recommendations regarding the importance of alternative dispute resolutions at all stages of the development assessment process. I do not know why the bill has not implemented any such recommendations. In general, the bill goes some way towards implementing the reforms suggested by the report of the working party. The question is, as always: Is the glass half full or half empty, or, in this case, is it ten-thirty sevenths full or twenty-seven thirty sevenths empty?

Prior to the last election the Environmental Planning and Assessment Act was amended to favour developers. One could not help but wonder whether it was a political attempt to please them and attract donations, which have been highly forthcoming, if one is to believe the electoral returns. In this case, after a huge outcry, there is some movement of the Acts—but not too much—towards the people. One could take the line: We had to do something so we did as little as possible. It is a harsh judgment. The Government is quick to respond to any concerns by sections of the community about law and order, but it has been far less willing to respond to concerns about overdevelopment. The capacity of Sydney to accommodate an increasing population is controversial. We must balance higher urban densities with concerns about their environmental impact.

The Democrats approach is to identify areas that must be conserved and areas that could sustain higher-density developments if transport infrastructure, such as railways, were available. Areas such as the north-west sector fall into that category. We should devise a way to capture the increased value provided by a transport corridor and use it to build public transport links. We could then produce an overall plan rather than rely on higgledy-piggledy development based on whatever the developer can buy and whatever can be rammed through council or the Land and Environment Court. We would have a desired corridor, the value of which would increase. Perhaps tax on the corridor would be higher, which would reflect increased land values. When people sold they would recoup some, but not all, of that money. The money that the Government took out would build the corridor.

We would have a city of systematic urban consolidation rather than future transport problems. Groups such as the Environmental Defender's Office have suggested that it is not the court that is the problem but rather the legislative context in which it operates. We must rethink planning policy in New South Wales along the lines I have suggested. The development of the Brisbane to Melbourne railway inland would help to develop inland areas. A serious decentralisation policy for New South Wales would ensure that Sydney does not keep growing as people in towns west of the ranges abandon their houses. They are suffering from the relative changes in agricultural products on the world market. We support the bill, but we believe the Government could have done more. We are disappointed that it did not.

The Hon. RICHARD JONES [4.25 p.m.]: The Land and Environment Court Amendment Bill amends the Land and Environment Court Act and the Environmental Planning and Assessment Act to implement reforms arising out of the Land and Environment Court working party review of the way the court deals with development applications. Although the bill implements a number of the recommendations proposed by the working party—modification of consent granted by the court, the council's power to review determinations, qualifications for appointment, use of panels, part-time commissioners, minor matters, conferences for minor matters, major matters and ancillary orders—it does not implement all of the recommendations, or even the majority of them. The bill could, therefore, be improved and strengthened in a number of ways. For example, it could require the Minister to ensure that commissioners, as a group, hold qualifications across the range of areas set out in section 12 of the Land and Environment Court Act, and ensure that part-time commissioners cannot act as expert witnesses or advocates before the court during their tenure as commissioners.

Although new section 12 (2) (h) seeks to extend the breadth of qualifications that commissioners may hold to special knowledge of and experience in urban design or heritage, it raises the breadth of expertise currently held by commissioners. None of the commissioners presently has special knowledge of or experience in environmental science, or matters relating to the protection of the environment and environmental assessment. This lack of expertise must be addressed sooner rather than later. Potential conflicts of interest regarding part-time commissioners acting as expert witnesses or advocates before the court during their tenure as commissioners also needs to be resolved. The bill could also extend the time for objector appeals, expand the rights of third parties to be joined, extend the notification requirements for the modification of consents and build the public interest into alternative dispute resolution mechanisms.

Under section 98 of the Environmental Planning and Assessment Act objectors to designated development have 28 days in which to appeal against a decision to grant consent to designated development. For complex developments this time frame is often too short for third parties to review the necessary evidence and determine whether to commence proceedings. If the logic of the bill were followed in relation to extending the period by which developers can seek a section 82A review this time limit would also be increased. Although the Land and Environment Court has permitted third parties to participate in proceedings when those parties wish to raise issues that would not otherwise be raised, the third parties have not been given a right of appeal against the decision of the court. Third parties who were not objectors to designated development have not been permitted to call expert evidence.

These oversights need to be rectified. Although the bill makes further provision for the modification of consent in certain circumstances, in schedule 2, the procedure for notification of applications for modifying development consent remains inadequate, so much so that the court may not be fully informed of objector concerns when considering a modification application. Under clause 72A of the Environmental Planning and Assessment Regulation the notification of modified applications extends only to the publication of details in a newspaper. Persons subjected to the original development applications are not required to be notified and may not, therefore, be aware of any proposed modification or be able to notify the court of the concerns. The period provided for comment in relation to modification of designated development is potentially less than half the period provided for public comment on the initial proposal. This is unacceptable, as a designated development has potentially greater and more complex environmental impacts, and even minor changes may result in significantly increased harm to the local community or the environment.

The public exhibition provisions under part 5 of the Environmental Planning and Assessment Act where modifications to a development are made are also flawed and must be amended. It is important that alternative dispute resolution mechanisms used in connection with class 1 proceedings in the court recognise the importance of public involvement and adequately take into account the interests of third parties. Statutory force should therefore be given to an existing practice direction of the court, clause 9 of the Practice Direction 1993, as amended by the Practice Direction 1998. The need to recognise the public interest in court-annexed dispute resolution mechanisms also applies to section 34 conferences and court-annexed mediation. At present, commissioners are able to dispose of proceedings following a section 34 conference despite the fact that there is no requirement for notification of objectors or provision for objectors to participate in such a conference.

Providing increased opportunity for public participation in the development assessment process is, after all, one of the objects under section 5 (c) of the Environmental Planning and Assessment Act. I will therefore move amendments in Committee to ensure that the Land and Environment Court Act provides that the Minister has a duty to ensure that commissioners of the court, as a group, hold qualifications across the range of areas set out in section 12 of the Act; part-time commissioners cannot act as expert witnesses or advocates before the court during their tenure as commissioners; the time period for commencement of objector appeals under the Environmental Planning and Assessment Act is increased; and in applicant and objector appeals the court can order the third parties seeking to raise issues that would not otherwise be adequately addressed joined as parties in proceedings.

I will also move amendments to ensure that the Environmental Planning and Assessment Act provides that each objector must be notified in writing of any proposed modification of consent; the public has 28 days in which to make submissions on any advertised modification application; determining authorities cannot approve development with modifications that have a significant impact upon environment or citizens unaffected by the proposed development, unless those modifications have been exhibited for public comment; consent authorities must demonstrate to the court that all relevant persons have been notified of proposed orders, the content of those orders and their rights to seek to be heard by the court; persons objecting to a proposal must be notified of the usual practice of the court in awarding costs, their rights to apply to be legally represented and to lead evidence; and in preliminary conferences or mediation matters, consent authorities must demonstrate to the court that all relevant persons have been notified of proposed orders, the content of those orders and their rights to seek to be heard by the court.

These amendments will increase the breadth of expertise of commissioners, remove possible conflicts of interest, enable evidence to be adequately reviewed before proceedings are undertaken, allow all parties to appeal court decisions and court expert evidence, and ensure adequate notification of proposed modifications and increase public involvement in alternative dispute resolution. I understand that the Government will accept the amendments relating to the Land and Environment Court commissioners qualifications, part-time commissioners acting as expert witnesses or advocates, joiner of third parties in appeals, and written notification of objectors of modifications of consent. While these amendments do not address all the issues of concern I have raised, I commend the Government for accepting them. In particular, I thank the Minister's adviser Alistair McConnachiea.

Reverend the Hon. FRED NILE [4.30 p.m.]: The Christian Democratic Party supports the Land and Environment Court Amendment Bill. This bill will amend the Land and Environment Court Act 1979 and the Environmental Planning and Assessment Act 1979 to implement reforms arising out of the recent independent working party review of the Land and Environment Court and the State planning system. As honourable members would know, the independent working party, chaired by the Hon. J. S. Cripps, QC, was asked to examine the legislative basis upon which decisions in relation to development applications are currently reviewed by the Land and Environment Court, including the most appropriate manner in which to review the decisions of local councils in relation to development applications. The working party was also to inquire into the constitution of the Land and Environment Court in reviewing the decisions of local councils, including whether the court should be constituted by more than one judge or commissioner or by commissioners possessing specified qualifications or expertise; whether the court should have regard to any additional matters in reviewing a council decision in relation to a development application; ways in which to streamline the manner in which development applications are processed by councils and PlanningNSW, so as to reduce the incidence of appeals; and whether greater reliance could be placed upon alternative dispute resolution mechanisms in resolving disputes in relation to development applications.

The Christian Democratic Party believes that this bill deals with the matters that were referred to the working party. The working party, as it conducted its review, received more than 300 submissions from interested parties, as well as comments and advice from a range of relevant experts and stakeholders. The report of the Land and Environment Court working party made a very important observation that less than 1 per cent of development applications are determined by the Land and Environment Court and that these are generally dealt with in an expeditious way and without undue delay. However, litigating a matter in court is expensive and may cost parties tens of thousands of dollars. There needs to be a more streamlined, less formal process. As we have done in other areas, we must try to reduce the legalese and minimise the role of lawyers in cases where they are not necessary. We hope that the process of on-site hearings will produce speedy decisions that do not involve a great deal of expense for the parties concerned.

The bill will introduce two new procedures for dealing with appeals brought under section 97 of the Environmental Planning and Assessment Act 1979. Appeals relating to small-scale developments will be dealt with by way of a conference held on the site of the proposed development and presided over by a commissioner of the court. It is anticipated that this process will help minimise formality and the role of lawyers and reduce costs and disposal times. Appeals relating to large-scale developments will be dealt with in the court room, with a discretion in the Chief Judge to convene a panel of commissioners, or a judge and commissioners, to determine the matter. Before disposing of any such appeal, the court will be required to visit the site of the proposed development. I believe that is an important requirement. The procedure for appeals relating to large-scale development will allow the court to focus appropriate expertise on these appeals and ensure that its decisions are of the highest possible quality.

The bill will also add urban design and heritage to the fields of expertise capable of qualifying a person for appointment as a commissioner of the court. I believe that provision is sufficient. Further, the bill will provide for commissioners to be appointed on a part-time basis and give the court the power to impose easements over the land in certain circumstances. It will also expand the period of time within which local councils may review their determinations of development applications, with the aim of reducing the number of appeals to the Land and Environment Court, and give councils the power to modify concerns granted by the court, with enhanced consultation requirements and a special right of appeal for objectors as a safeguard. I note that the Greens and the Hon. Richard Jones intend to move a large number of amendments to the bill. The Christian Democratic Party is concerned about the introduction of third party objections because, it is argued, it would give a better result. Such a provision would also allow for manipulation by vested interests, which include the Greens and affiliated organisations and groups associated with the Hon. Richard Jones. A third party objection can be a delay mechanism to try to stop or even wreck a project that, in some cases, could be of great benefit to society.

The Hon. HENRY TSANG (Parliamentary Secretary) [4.35 p.m.], in reply: I thank all honourable members who contributed to this debate. I have worked with the Hon. James Samios on the Ethnic Communities Council of New South Wales for 21 years. Gentleman Jim Sir James, as I refer to him, has always been a gentleman and is always reasonable. I thank him for his contribution in support of the bill. In addressing the contributions of the Hon. Dr Arthur Chesterfield-Evans and Ms Lee Rhiannon it is important to note that the Land and Environment Court working party heard various allegations that the court is biased, that certain members of the court are biased and that there is a systemic bias inherent in the appeals process for development applications. The working party investigated those allegations and found every one of them to be unsubstantiated. None of the accusers pointed to a single case where a reasonable apprehension of bias could be shown on the part of any member of the Land and Environment Court.

Ms Lee Rhiannon is correct when she says that I was Deputy Lord Mayor of Sydney from 1991 to 1999 and that I am aware that the Council of the City of Sydney presented to the working party a glossy publication entitled "Unwanted Legacies". That publication purports to identify poor or incorrect decisions of the court. As well, a statistical review of court decisions purports to show a systemic bias in favour of applicants for development. The working party found that both submissions were noteworthy for the amount of ratepayers money that was clearly expended in their production and their entirely selective treatment of the truth. "Unwanted Legacies" contained a range of misleading statements and inaccuracies, while the statistical review examined only a select sample of court decisions. In the circumstances, the various allegations of bias appear to be nothing more than a scurrilous attack on the court, motivated by discontent in certain quarters of local government that councils do not always get their way in planning appeals. I have no sympathy with the sore loser mentality that these allegations clearly demonstrate. I thank the Hon. Dr Arthur Chesterfield-Evans for supporting the bill. I thank the Hon. Richard Jones for his contribution, in which he made some excellent suggestions. The Government will consider supporting some of his amendments. I thank Reverend the Hon. Fred Nile for his contribution and support. I commend the bill to the House.

Motion agreed to.

Bill read a second time.

In Committee

Clauses 1 to 5 agreed to.

Schedules 1 and 2

Ms LEE RHIANNON [4.40 p.m.], by leave: I move Greens amendments Nos 1 and 6 in globo:

Insert ", special knowledge of and experience in urban design, heritage, community consultation and ecologically sustainable development and" after "Minister" in section 12 (2).

5 Existing Commissioners

(1) A Commissioner who held office immediately before the commencement of this clause, and who, in the opinion of the Minister, does not have special knowledge of urban design, heritage, community consultation and ecologically sustainable development may not exercise the functions of a Commissioner until the Commissioner has obtained that knowledge.

(2) For that purpose, the Minister may grant the Commissioner paid part-time leave.

The bill as presented to Parliament requires the new commissioners to have only one of a range of special expertise, which does not include either community consultation or ecologically sustainable development. The Greens believe absolutely that such expertise is required of any person assuming this role. The amendments will ensure that any new and existing commissioners of the Land and Environment Court have special knowledge of, and expertise in, four specific areas: urban design, heritage, community consultation and ecologically sustainable development. The Greens believe it is important that all commissioners, both new and existing, have this expertise so that they may perform their duties to the benefit of the entire community. Under these amendments, existing commissioners who do not have these skills will be given paid part-time study leave in order to undertake the appropriate retraining.

I urge honourable members to consider these amendments carefully. We believe they will go some way to fixing this bill. As I said during the second reading debate, we have been short-changed with this legislation. I hope that Government members will remember the words of former Prime Minister Keating about development in New South Wales. He has shown considerable leadership and commonsense regarding the development chaos reigning in New South Wales and his comments highlight the considerable lack of moral leadership on the part of State Labor. This is legalistic tinkering when the horse has already bolted. Sometimes it is possible to ride the horse and pick up some goodies along the way, but the rider could be thrown and could fall rather heavily. When Labor plays with the big end of town it often gets its fingers burnt. I urge honourable members to consider the amendments carefully as they will strengthen this bill.

The Hon. HENRY TSANG (Parliamentary Secretary) [4.44 p.m.]: The bill will add the words "special knowledge of and experience in urban design or heritage" to the list of qualifications set out in section 12 of the Land and Environment Court Act 1979. Greens amendment No. 1 seeks to make expertise in urban design, heritage, community consultation and ecologically sustainable development prerequisites for appointment as a commissioner in addition to one of the other fields of expertise listed in the Act. This would be completely unworkable: It would drastically reduce the pool of available candidates and could mean that no-one would be eligible for appointment as a commissioner of the court.

Further, ecologically sustainable development is already covered in section 12 by a number of the fields listed, including "environmental science" and "matters relating to the protection of the environment and environmental assessment". It is also worth noting that the court is already required to take account of the principles of ecologically sustainable development in planning appeals. This is provided for by section 79C of the Environmental Planning and Assessment Act 1979 coupled with the objects of the Act, which also include providing increased opportunities for public involvement and participation in environmental planning and assessment. Lastly, the Government has asked the court to provide additional training for judges and commissioners in ecologically sustainable development, total catchment management, and better urban and building design. Greens amendment No. 6 raises the question of who would hear an appeal while the commissioners were taking study leave. The Government opposes the amendments.

Amendments negatived.

The Hon. RICHARD JONES [4.46 p.m.], by leave: I move my amendments Nos 1, 2, 4 and 10 in globo:

[3] Section 12 (2)

(2B) A person appointed as a part-time Commissioner is guilty of misbehaviour if, during the term of his or her appointment, the person appears as an expert witness, or act as the representative of any party, in proceedings before the Court.

[10] Section 39A

Insert after section 39:

39A Joinder of parties in certain appeals

Environmental Planning and Assessment Act 1979

that the person be joined as a party to the appeal.

Amendment No. 1 guarantees that the Minister ensures that commissioners of the Land and Environment Court, as a group, hold qualifications across the range of areas set out in section 12 of the Act. Amendment No. 2 ensures that part-time commissioners cannot act as expert witnesses or advocates before the court during their tenure as commissioners. Amendment No. 4 ensures that in applicant and objector appeals the court can join as parties to the proceedings persons who can raise issues—including issues in the public interest or in the interests of justice—that would not otherwise be addressed adequately. Amendment No. 10 ensures that councils are given specific obligations regarding notifying objectors in writing of any proposed modification of development consents.

The Hon. HENRY TSANG (Parliamentary Secretary) [4.47 p.m.]: The Government supports amendments Nos 1, 2, 4 and 10 moved by the Hon. Richard Jones. Amendment No. 1 will ensure that as many as possible of the fields of expertise set out in section 12 of the Land and Environment Court Act 1979 are represented among the commissioners. This will simply direct the Attorney General's attention when considering new appointments to the desirability of appointing a wide range of expert commissioners to the court.

The Hon. JAMES SAMIOS [4.48 p.m.]: The Opposition supports the amendments.

Amendments agreed to.

The Hon. RICHARD JONES [4.48 p.m.], by leave: I move my amendments Nos 3, 5, 6, 7, 8, 11, 12, 13 and 14 in globo:

[7] Section 34 (4A)

Insert after section 34 (4):

Environmental Planning and Assessment Act 1979

[10] Section 39B

Insert before section 40:

39B Making of certain orders by consent

Environmental Planning and Assessment Act 1979

[2] Section 79AA

Insert after section 79A:

79AA Public participation—all notified development

(2) The notice of the development application, or the determination of the development application, must include the following information:

[5] Section 96 Modification of consents—generally

Insert after section 96 (1A) (b):

(b1) it has notified the application to each objector to the original development application by sending written notice to the last address known to the consent authority of the objector, and

[6] Section 96 (1A) (c)

Insert "otherwise" before "notified".

[7] Section 96 (1A) (d)

[8] Section 96 (1B)

Insert after section 96 (1A):

(1B) A consent authority must notify the application under subsection (1A) (c) if the modification will have a significant impact on persons different from those affected by the original development application.

[9] Section 96 (2) (b1)

Insert after section 96 (2) (b):

(b1) it has notified the application to each objector to the original development application by sending written notice to the last address known to the consent authority of the objector, and

[10] Section 96 (2) (c)

Insert "otherwise" before "notified".

[11] Section 96 (2) (d)

Insert "of 28 days after the date on which it notified the application as required by this section or such longer period as may be" after "the period".

[12] Section 96 (2A)

Insert after section 96 (2):

[7] Section 98 Appeal by an objector

Omit "28 days" from section 98 (1). Insert instead "2 months".

[8] Section 112 Decision of determining authority in relation to certain activities

Insert after section 112 (1):

original activity

Amendment No. 3 ensures that in preliminary conferences consent authorities must demonstrate to the court that all relevant persons have been notified of proposed orders, the content of those orders and their rights to seek to be heard by the court. Amendment No. 5 ensures that in applicant and objector appeals, consent authorities must demonstrate to the court that all relevant persons have been notified of proposed orders. Amendment No. 6 ensures that notices for development applications or the determination of development applications inform readers of the usual practice of the court in awarding costs, the right to apply to be legally represented and to lead evidence.

Amendment Nos 7 and 8 ensure that consent authorities are given specific obligations regarding notifying objectors in writing of any proposed modification of consents. The public has 28 days in which to make submissions on advertised modification applications and that determining authorities cannot approve developments with modifications that have a significant impact upon the environment or citizens unaffected by the proposed development unless those modifications have been exhibited for public comment.

Amendment Nos 11, 12 and 13 ensure that the public has 28 days in which to make submissions on council advertised modification applications and that determining authorities cannot approve developments with modifications that have a significant impact upon the environment or citizens unaffected by the proposed development unless those modifications have been exhibited for public comment. Amendment No. 14 ensures that the time period for commencement of objector appeals under the Environmental Planning and Assessment Act is increased from 28 days to two months. It ensures that examining authorities cannot approve developments with modifications that have a significant impact upon the environment or citizens unaffected by the proposed development unless those modifications have been exhibited for public comment.

These amendments will increase the breadth of the expertise of commissioners, remove possible conflicts of interest, enable evidence to be adequately reviewed before proceedings are undertaken, allow all parties to appeal court decisions and call expert evidence, ensure adequate notification of proposed modifications and increase public involvement in alternative dispute resolution.

The Hon. HENRY TSANG (Parliamentary Secretary) [4.52 p.m.]: The Government does not support these amendments because they would make the court unworkable.

The Hon. JAMES SAMIOS [4.52 p.m.]: The Opposition does not support the amendments.

Amendments negatived.

Ms LEE RHIANNON [4.53 p.m.]: I move Greens amendment No. 2:

(4) The Commissioner is to give reasons for his or her decision by means of a written statement issued at the conclusion of the hearing.

This amendment would require written decisions for all on-site hearing matters. We have been told that the Government will not support this measure, and that is disappointing. It argues that an audio tape will be kept as a verbal report in a similar manner as a written report is kept. However, the Greens argue that a verbal report is not as rigorous as a written report and that is why I have moved the amendment. The absence of written decisions, as permitted by the bill as it stands, in some cases would remove an important discipline on the commissioners. Being required to justify decisions in writing will make the court accountable for the standard of its decision making. In essence, that is the reason for the amendment. It will strengthen the operation of the court and requires more scrutiny of decisions. Existing Land and Environment Court hearings that do not require written records of decisions in some cases have produced results that have been unsupported by evidence produced at such hearings. I emphasise that having to prepare a written report after a site inspection will require more vigorous application. I commend the amendment to the Committee.

The Hon. HENRY TSANG (Parliamentary Secretary) [4.54 p.m.]: This amendment is unnecessary. The reason for a decision must be made available as a matter of procedural fairness, and the bill makes it clear that reasons will be recorded in every case. However, in order to remove the need for the transcription of on-site conferences, the bill provides for reasons to be recorded in writing or by other means, such as on dictaphone. The registrar has indicated that to maximise efficiency the court plans to keep records of dictaphone recordings of reasons on tape, to be either copied or reduced to writing only at the request of a party. This is the same process as presently used by the Reporting Services Branch for extemporaneous decisions made in courtrooms in most jurisdictions. The Government does not support the amendment.

Amendment negatived.

Ms LEE RHIANNON [4.55 p.m.]: I move Greens amendment No. 3:

[10] Section 39 Powers of Court on appeals

Insert after section 39 (6A):

Environmental Planning and Assessment Act 1979

This amendment addresses the worrying and increasing practice of developers modifying applications before appeal. It would put an end to developers substantially changing a development application between council refusal and commencement of an appeal in the court. This practice severely disadvantages communities and councils that are trying to do the right thing by the communities in deciding whether a development application is appropriate. However, often the development has been changed, and sometimes changed quite substantially. The amendment will ensure that developers appealing against the refusal of the development consent by a local council cannot change their development applications on appeal to the court without the agreement of council. The Greens believe this is a sensible amendment and that it will go a small way towards strengthening the bill.

The Hon. HENRY TSANG (Parliamentary Secretary) [4.57 p.m.]: It is not lawful for the court to consider an application that has been substantially amended since it was considered by the council. The court is concerned to ensure that procedural fairness is observed and for this reason has formulated rule 16 (b1) of part 13 of the Land and Environment Court Rules 1996, which states that, except with the consent of the respondent or by leave of the court, the applicant at a hearing shall not be entitled to rely upon any amended plan of the development which the applicant initiated. However, local councils and others have continued to express concern about amendments to plans on appeal.

Therefore, the Government has resolved to call on the court to further tighten its rules so that amended plans cannot be relied upon in planning appeals, irrespective of the nature and extent of the changes, unless and until the council or other consent authority has had a reasonable opportunity to consider the changed proposal. This will mean there is no latitude at all for the courts to consider amendments if local council has not been given a chance to look at them first. Amending the Land and Environment Court Rules 1996 is an initiative on which the Government's implementation task force will be working closely with the court. While the intention of the proposal is broadly consistent with the Government's position, this matter shall be dealt with in the rules of the court. The Government does not support the amendment.

Amendment negatived.

Ms LEE RHIANNON [4.58 p.m.]: I move Greens amendment No. 4:

[10] Section 39 Powers of Court on appeals

Insert after section 39 (7):

Environmental Planning and Assessment Act 1979

This amendment gives emphasis to the local environment plan in assessing a development application. It will ensure that in assessing a development application the court is bound by the provisions of the relevant local environment plan. It will also ensure that the court has the same regard as council to the relevant control plans. Too often the court ignores LEDs and DCPs in granting approvals for proposals that clearly do not conform with those instruments, even though they have been democratically adopted by the local council after consultation with the community and, in the case of LEPs, approved by the Minister for Planning.

The Hon. HENRY TSANG (Parliamentary Secretary) [5.00 p.m.]: This amendment is unnecessary. Under merits review the court, like the council, can only determine an application that is permissible under the Environmental Planning and Assessment Act 1979 and the applicable environmental planning instruments, including local environmental plans. Development control plans do not have the force of law, but section 79C of the Environmental Planning and Assessment Act 1979 already requires them to be taken into account by both councils and the court. In short, the amendment precisely reflects the existing law. The Government does not support the amendment.

Amendment negatived.

Ms LEE RHIANNON [5.01 p.m.]: I move Greens amendment No. 5:

[14] Schedule 1, clause 4

Insert after clause 3:

4 Restrictions on appointment of part-time Commissioners

A person is not eligible to be appointed as a part-time Commissioner if the person is, and must immediately resign office as a part time-Commissioner if the person becomes:

This amendment goes some way to addressing the entrenched structural corruption that there is in so many areas of the development process in this State. What we are taking up here is the whole issue of part-time commissioners. We believe that they have no role in the development industry. Our amendment would ensure that part-time commissioners do not work at all in the development industry. The Greens are concerned that the appointment of such commissioners would, without this amendment, create the opportunity for unacceptable conflicts of interest and perverse incentives. Commissioners who work in the development industry as, for example, urban design or planning consultants would be in the untenable position of adjudicating matters that could involve potential future clients. The credibility of the court depends on the independence of its commissioners, and that can only be secured by removing both the reality and perception of conflicts of interest. I put to members that the conflict of interest can only be removed by eliminating part-time positions for commissioners. The Greens feel very strongly about this amendment. It would not address all the problems we have with the development industry in this State, but it would certainly go some way toward cleaning up the big problem at present.

The Hon. HENRY TSANG (Parliamentary Secretary) [5.03 p.m.]: The Greens are suggesting that part-time commissioners should not be permitted to work in the development industry during their period of tenure. It is intended that part-time commissioners will be forbidden to act as advocates or expert witnesses before the court during the period of tenure. The court has expressed the view that the conditions of employment for part-time commissioners should prohibit any secondary employment, except by permission of the chief judge in a given case. It will be very important to avoid any possibility of conflicts of interest, but this may be done by imposing appropriate conditions of employment. The amendment is opposed by the Government.

Amendment negatived.

Ms LEE RHIANNON [5.04 p.m.]: I move Greens amendment No. 7:

[2] Section 82 Circumstances in which consent is taken to be refused

Omit "the relevant period, prescribed by the regulations, applicable to the development the subject of the development application" from section 82 (1).

Insert instead "100 days of the application being made".

[3] Section 82 (2)

Omit "relevant".

This amendment deals with the issue of deemed refusals. The amendment would extend to 100 days the period of time available to a local consent authority to determine a development application before deemed refusal. Under the current laws deemed refusal occurs after 40 days. This places councils under pressure to rapidly process applications, sometimes without allowing due time to assess the full range of the impacts of the application. Some developers ruthlessly exploit this provision in order to remove the application from the local council. Why can we not grant this extension of time? It is just a small provision but something that would bring greater fairness into how the current system operates. One has to wonder why, by not supporting the amendment, the Government supports a system that so much favours the developers.

The Hon. HENRY TSANG (Parliamentary Secretary) [5.05 p.m.]: The working party considered the duration of assessment periods in detail, and concluded that the existing 40 day period—60 for designated development—should be retained. Councils need to make appropriate use of the "stop the clock" provisions of the Environmental Planning and Assessment Regulation 2000. Clause 54 provides that the council may request an applicant to provide such additional information about the proposed development as it considers necessary to its proper consideration of the application, and may specify such reasonable period within which the information must be provided. Clause 109 provides that so long as the council's request was made within 25 days after the date the application was submitted, the days occurring between the date of the request and the date on which the information is provided—or the applicant notifies the council that it will not be provided—are not counted in calculating the number of days in the assessment period. In other words, the clock stops. Extending the deemed refusal period as the Greens suggest would result in longer delays for minor developments such as house extensions. The Government opposes the amendment.

Amendment negatived.

Ms LEE RHIANNON [5.06 p.m.]: I move Greens amendment No. 8:

[7] Section 97 Appeal by an applicant-development applications

Omit "for consent to carry out designated development" from section 97 (4).

[8] Section 98 Appeal by an objector

Insert after section 98 (1):

(1A) An objector who is dissatisfied with the determination of a consent authority to grant consent to a development application (other than a development application referred to in subsection (1)) may appeal to the Court within 28 days after the determination of the application or the date on which the application is taken to have been determined under section 82 (1).

This amendment would grant objectors to a development application the right to appeal against a development consent granted by a council. The amendment would put developers and the community on a more equal footing. The amendment would restore balance to the development assessment process to some extent.

The Hon. HENRY TSANG (Parliamentary Secretary) [5.07 p.m.]: Currently, only objectors to designated development can appeal to the court against a development consent issued by a council. Designated developments include aircraft facilities, breweries, cement works, coalmines, electricity generating stations, marinas and so on. They are not the normal residential and commercial developments. The Government is not prepared to extend third party appeal rights. It would need careful consideration and consultation with councils, industry and the community. Public interest arguments would need to be balanced against certainty or efficiency arguments. The Greens amendment opens up the possibility that someone who lives six blocks away from a person wishing to erect a new carport could force that person into court, even though the council considered the development application complied with all the relevant development controls. This could create considerable anxiety and hardship for people. Likewise, third party appeals could be used by businesses to head off competition, such as by delaying and adding to the cost of opening a new shop. Significant economic consequences would need to be considered as any general extension of third party appeal rights could considerably slow down economic development. It is also necessary to consider who should be allowed to appeal, and whether the extent of public participation prior to decision making should regulate such an entitlement. The Government opposes the amendment.

Amendment negatived.

Ms LEE RHIANNON [5.09 p.m.]: I move Greens amendment No. 9:

[7] Section 99A

99A Limits on appeals

Despite any other provision of this Part, an applicant who is dissatisfied with the determination of a consent authority with respect to the applicant's development application may not appeal to the Court if the site to which the application relates or any part of the site has, within the preceding 24 months, been the subject of an unsuccessful appeal to the Court by the applicant or a related entity of the applicant (whether or not the application involved the same kind of development).

This amendment would ensure that where an appeal has been refused on a site the court is not to hear a matter in respect of an application from the developer or a related entity on that site or any part of that site for a period of 24 months from the date of refusal. The Greens have brought this amendment forward because of the current unsavory situation that allows developers to go to the Land and Environment Court time and time again until they get the result they seek. That is one of the most common complaints that we get from the many community groups who beat a path to the door of the Greens seeking our support. Many people perceive the court system as a form of Russian roulette, and say that it is unfair to councils and communities. Developers know that eventually they will strike it lucky and have their matter heard before a sympathetic commissioner. That is no way to run a court. That is an absolute abrogation by the Government of its responsibility to present a fair legal system.

The Greens are very disappointed with this bill, considering the Government's power. It goes only some way towards tackling the big questions. The bill has not tackled the development chaos that rules in New South Wales and will in no way rein in Government members and Australian Labor Party head office officials who use their position to lobby local councillors to give their support to damaging and alienating developments. The bill in no way will change the Labor culture that favours fast-tracking most developments. The bill in no way will change the system under which Labor councillors, members of Parliament—in fact all Labor members—can win kudos inside the Labor Party by pulling in donations from developers. Those two issues, development donations and shoddy development processes, are absolutely linked, and until we break that link we will run into more and more problems, such as the Obeid disaster that is plaguing this Government every day.

The CHAIRMAN: Order! Ms Lee Rhiannon will address the schedule under consideration.

The Hon. HENRY TSANG (Parliamentary Secretary) [5.11. p.m.]: The Greens claim that developers repeatedly appeal essentially the same application until some commissioner in the court grants consent. However, stripping applicants who have appealed unsuccessfully of the right to do so again for two years, irrespective of the nature of any development proposal, would be a very heavy-handed response and could operate extremely unfairly. The working party suggested that repeated appeals may be discouraged by imposing costs under the proposed rule that costs are awarded where it is fair and reasonable to do so. Costs orders would be a much more appropriate mechanism for dealing with repeated appeals. The Government does not support the amendment.

Amendment negatived.

Schedule 1 as amended agreed to.

Schedule 2 as amended agreed to.

Schedule 3 agreed to.

Title agreed to.

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

COURTS LEGISLATION FURTHER AMENDMENT BILL

Bill received and read a first time.

Motion by the Hon. Henry Tsang agreed to:

Second Reading

The Hon. HENRY TSANG (Parliamentary Secretary) [5.16 p.m.]: I move:

That this bill be now read a second time.

This bill proposes miscellaneous amendments to legislation affecting the operation of the courts of New South Wales. Firstly, it is proposed to amend the Liquor Act 1982 to provide for licensing magistrates who are acting magistrates to be paid on a daily basis, in accordance with the terms of their commissions, rather than under the Statutory and Other Offices Remuneration Act 1975. Acting magistrates are paid a daily rate. Accordingly, if an acting magistrate is not sitting, he or she is not paid. A number of acting magistrates currently hold commissions as licensing magistrates under section 8 of the Liquor Act. The Liquor Act does not presently provide for licensing magistrates who are acting magistrates to be paid on a daily basis. A consequential amendment to the Statutory and Other Offices Remuneration Act is proposed to exclude from schedule 1 acting magistrates who are licensing magistrates.

It is also proposed to amend the Local Courts Act in relation to leave entitlements for magistrates. Pursuant to section 25 of the Local Courts Act, appointees as magistrates who are public servants at the time of the appointment preserve their accrued long service, sick leave and recreation leave entitlements. The section also preserves superannuation entitlements. However, there is no proposal to alter this aspect of the section. The existing determination of magistrates' leave and related provisions defines "service", for the purpose of calculating these entitlements, as including periods of service under the Public Sector Management Act. Under those amendments, any public servants appointed in future as magistrates would be paid out all extended and recreation leave entitlements at the time of their resignation from the Public Service, as they would if they were resigning from any other position, and there will be no right to carry forward sick leave entitlements from previous service as a public servant.

The proposed amendment to the Supreme Court Act 1970 would remove the present restriction on long and complex matters being referred to arbitration. Parties engage in time-consuming argument about the length and complexity of their matters rather than focusing on the substantive aspects of the case that may or may not make it suitable for arbitration. This amendment will bring the arbitration provisions of the Supreme Court Act 1970 into line with those applying in the District Court and Local Court, which were amended to achieve this result last year. Also, minor technical amendments are required to facilitate the introduction of electronic filing of applications in class 1, 2, 3 and 4 matters in the Land and Environment Court.

Provisions in the legislation dealing with the signing, sealing or stamping of process need to be addressed, and will be supplemented by changes to the court rules to permit the court to deal with electronic filings. The amendments contain a provision validating anything done under the electronic filing system after 1 July and prior to these amendments commencing. Finally, the bill was amended by the Government in the Legislative Assembly. This amendment pertains to the Local Courts Act 1982 to enable a judge of the District Court to be appointed to the present vacancy in the office of Chief Magistrate of the Local Court and to retain all remuneration, leave, pension and other entitlements of a District Court judge.

A District Court judge is qualified for appointment as Chief Magistrate because he or she is, or is eligible to be, admitted as a solicitor or barrister of the Supreme Court of New South Wales. However, the doctrine of incompatibility of office would preclude a District Court judge from holding both appointments simultaneously without specific legislative authority. This amendment provides that the District Court judge may retain his or her commission as District Court judge and all of the corresponding rights and entitlements, but the judge will not exercise the jurisdiction of the District Court. An exception is made to permit the judge to finish off any matters currently before him or her. I commend the bill to the House.

The Hon. GREG PEARCE [5.22 p.m.]: The Opposition will not oppose the bill. Generally speaking, we do not have any objection to a number of the changes that, we are told, are supported by the relevant chief judges and magistrates. However, I am concerned about the urgency of the legislation. It appears to be another example of the Government's arrogance and rorting of the system. This is a jobs for the girls. A former member of this House, Pat Staunton, must be replaced to take up her new industrial relations job. This outrageous, urgent bill was introduced to enable the Government to make that happen. Debate on this bill follows some fairly outrageous flouting of conventions and procedures.

We saw the bitter Hon. Jan Burnswoods object to the Hon. Dr Brian Pezzutti making a statement when tabling a report. That is very rare in this House. It was shameful and mean-minded. We then saw the Minister for Mineral Resources, and Minister for Fisheries and the Minister for Police crossing between the chair and the table. Tradition in the Westminster system is aimed at maintaining the dignity of the House. Unfortunately, Ministers in this Government have such little regard for the forms and traditions of the House that they are prepared to abandon the proper processes. The bill is another instance of the Government abusing the proper processes of the Westminster system. The Opposition does not oppose it.

The Hon. IAN COHEN [5.24 p.m.]: The Greens generally support the bill, but we have reservations about the use of acting magistrates and judges. Some initiatives are certainly supportable. For instance, the bill intends to amend the Land and Environment Court Act to facilitate electronic filing. This will enable it to utilise its new electronic filing system to the public. Generally, the Greens have grave reservations about the use of acting magistrates and judges. Commentators on temporary judicial appointments have condemned the practice, arguing that it defies fundamental principles. In 1998 Keith Suter, former Vice-President of the New South Wales branch of the Australian section of the International Commission of Jurists, argued that the appointment of acting judges is an infringement of the community's right to an independent judiciary. This practice is best described as the Executive exercising influence or, worse still, control over the judiciary in defiance of the fundamental principle requiring separation of those powers.

Acting judge appointments are known in some circles of the Sydney bar as auditions, and not without reason. The regrettable appearance is that the Executive is trying out potential judges to assess their acceptability, and the fear is that acting judges will be tempted to decide cases in favour of the Government to secure permanent appointments to the bench. Acting judges have loyalties and duties that are acceptable in a judge. Keith Suter gave the example of the Crown Prosecutor or Public Defender acting as a judge. He or she would judge cases conducted by colleagues, not former colleagues. The same problem arises when barristers act as judges. Solicitors will appear before them whom they hope will continue to brief them. Clearly, acting judges are faced with conflicts of interest in these cases. Justice Michael Kirby of the High Court attacked the practice, saying that it imposes a psychological pressure on the independence of those judges. He said:

We understand the Government uses acting judges to clear the backlog of cases. However, the Greens believe the answer is to appoint more permanent judges and magistrates, and to keep acting judges and magistrates to the absolute minimum. Another amendment specifies that the Bail Act will be amended to allow bail undertakings to be given to authorised officers of the Department of Corrective Services. The Government briefing note specifies that this power was inadvertently removed during amendments to the Bail Act in 2000. The aim of the amendment is to ensure that defendants do not experience unnecessary delays when being released on bail ordered by the court. The Greens support any amendment that reduces delays for people being released on bail. The department should ensure that enough authorised officers are available to take such bail undertakings so that defendants are not disadvantaged because of lack of officers. The Greens do not oppose the remainder of the amendments contained the bill.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [5.27 p.m.]: The bill is the result of doubts raised about the validity of appointment of judges as acting judges. We must consider two issues. First, are judges appointed as acting judges in another jurisdiction qualified? At present the various Acts governing appointment of judges require that a person be a legal practitioner of at least seven years standing. This has caused some confusion, because it has been assumed that judges retained their prior status as barristers or solicitors. This would seem self-evident, but it is proposed to make the qualification definition include a person who holds or has held judicial office. Second is the doctrine of incompatibility of office. In a nutshell, this means you cannot do two jobs at once. This causes a problem when a judge of one jurisdiction, for instance the District Court, is appointed as an acting judge in another, such as the Supreme Court. He or she may return to the other jurisdiction once the acting position ends. The bill will spell out that there is no incompatibility. These sensible amendments are supported by the Australian Democrats.

The Hon. PETER BREEN [5.28 p.m.]: The bill provides for various amendments to legislation affecting the operation of New South Wales courts. They are minor amendments, but I place on record my concerns about some aspects of the adversarial system of justice as it operates in the courts. The amendment to the Bail Act is a sensible provision that was inadvertently removed from the legislation by the passing of the Bail Act amendments in 2000. Under the amendment, authorised Corrective Services officers have the power to take bail undertakings from prisoners, thus avoiding the need for prisoners to go back to court when their bail arrangements are in place.

Amendments to the Liquor Act and the Statutory and Other Offices Remuneration Act clarify the method of remuneration of acting magistrates in the Licensing Court and places them on the same footing as Local Court acting magistrates. I support the amendments as they provide a level playing field for acting magistrates in each jurisdiction. As to the contributions of the Hon. Ian Cohen and the Hon. Dr Arthur Chesterfield-Evans, there has been a change in policy in New South Wales. Former Attorney General Jeff Shaw achieved what I believe is a remarkable milestone in the courts when he scrapped the discredited policy of appointing acting judicial officers from the ranks of barristers and solicitors. These days acting magistrates are appointed from the ranks of retired judges and retired magistrates and many potential conflicts and injustices have been removed from the operation of the courts as a consequence.

Another amendment contemplated by the bill will allow for the appointment of a judge of the District Court to the position of Chief Magistrate without compromising the conditions of appointment of the judge, particularly his or her right to return to the District Court. A precedent was set for this provision with the appointment of the Hon. Barry O'Keefe, formerly a judge of the Supreme Court, as Commissioner of the Independent Commission Against Corruption. One of the terms of his appointment was that he be allowed the opportunity to return to the Supreme Court. This provision mirrors that precedent. This amendment supports the principle of security of tenure for members of the judiciary, and I commend the amendment to the House.

Similarly, another amendment to the Local Courts Act removes an anomaly that exists between magistrates appointed from a public sector background as opposed to those from the private sector. This amendment prevents magistrates appointed from the public service carrying forward leave entitlements which put their remuneration in a different category to that of other magistrates. The employment conditions of all members of a particular court and their remuneration ought to be the same where they perform the same judicial function. I note that the inequality that exists between masters of the Supreme Court and other judges is long overdue for review. Why should masters who do the same work as judges be employed on less favourable conditions and remuneration?

I urge the Attorney General to address this anachronism in the Supreme Court by appointing the masters as judges, which is their appropriate status. The last area I want to cover in the reach of the Courts Legislation Further Amendment Bill concerns the amendment to the Supreme Court Act which allows long and complex matters to be referred to arbitration. I note that the amendment has the support of the Chief Justice, but I wonder whether law consumers would agree that long and complex matters—indeed, any matters—ought to be referred to arbitration. My own experience is that arbitration is just one more costly step on the tortured path to justice in New South Wales, a path that only lawyers will tread with any satisfaction.

Recently I had an extraordinary case which I brought to the attention of the Chief Justice by letter two days ago. In that case, Mr X was parked at an intersection near his home when another vehicle, driven by Mr Y, ploughed into the back of his vehicle. The impact was so severe it demolished the rear of Mr X's vehicle and his car seat broke off its mountings. Several vertebrae in his neck were damaged. Proceedings were commenced in the District Court. The defendant's insurer admitted liability and offered to settle for $200,000. An arbitrator subsequently awarded Mr X $400,000 and the insurance company then appealed this decision. A District Court judge decided that Mr X was a malingerer. The judge overturned the decision of the arbitrator, found for the defendant and awarded costs against Mr X.

I am pleased that the Motor Accidents Authority now handles claims on behalf of motorists injured after 5 October 1999. The case I have referred to proves that the role of judges as protectors of citizens is a lost ideal in the New South Wales legal system. When the judiciary acts in this capricious way, it is simply acting as another branch of the Executive Government. I always advise people to follow the biblical imperative and settle their disputes before going to court. Mr X has been effectively ruined by the District Court judge's decision and the question of an appeal needs to be considered. To this end, I have asked the Chief Justice to advise me of the statistical success rate for appeals from a decision of a District Court judge. I look forward to obtaining those figures. In conclusion, the bill covers a number of amendments which are supported and will improve the operation of the courts in New South Wales. I commend the amendments to the House.

The Hon. RICHARD JONES [5.34 p.m.]: I support this bill, which has been rushed through the House primarily because of speculation about the appointment of a District Court judge as Chief Magistrate on the resignation of Patricia Staunton, who has been appointed to the Industrial Relations Commission. Patricia Staunton was a very good member of this House. It was predicted that she would rise to greater things, as indeed she has. I understand that Justice Derek Michael Price will be appointed Chief Magistrate. There has been speculation about this and the Government decided to pass the legislation quickly so that the appointment can be effected promptly. I support the speedy passage of the legislation.

The Hon. HENRY TSANG (Parliamentary Secretary) [5.35 p.m.], in reply: The Government thanks the Hon. Greg Pearce, the Hon. Ian Cohen, the Hon. Dr Arthur Chesterfield-Evans, the Hon. Peter Breen and the Hon. Richard Jones for their contributions and support. I would like to address the concerns raised by the Hon. Ian Cohen. The Government has a policy of using only retired judicial officers, not practising solicitors or barristers, to undertake acting judicial positions. This policy is maintained to ensure that there is no actual or perceived conflict of interest. It has the added benefit of ensuring that the acting judicial officers have the experience and expertise to immediately and fully contribute to the jurisdiction to which they are appointed. I commend the bill to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages.

THREATENED SPECIES CONSERVATION AMENDMENT BILL

Second Reading

Debate resumed from 19 June.

The Hon. JOHN RYAN [5.38 p.m.]: The Threatened Species Conservation Amendment Bill presents the Opposition with some difficulty. Whilst we generally support the bill, we believe that changes should be made to some aspects of it. The Government has introduced this amending bill to create, most importantly, the additional category of "vulnerable species". Attached to that category will be a lessening of the provisions that normally apply to the Threatened Species Conservation Act and, in particular, the requirement for an eight-part test. I was a member of the select committee that examined the Threatened Species Conservation Act 1995. The evidence presented to the committee left us in no doubt that for certain categories of people affected by the Threatened Species Conservation Act, the provisions of the Act were a great deal more onerous than they needed to be in order to meet the objective of conserving threatened species. We were presented with substantial evidence about the application of the eight-part test and other extensive bureaucratic requirements that are significantly expensive, particularly for primary producers who may want to make some reasonably simple modifications to their properties to improve production.

The report of the Joint Select Committee on the Threatened Species Conservation Act made a series of recommendations that this bill acts upon to some extent. However, the Opposition is disappointed that the bill does not go as far as the report recommended. Additionally, the Opposition has engaged in its own consultation about this Act generally. As a consequence, we are now of the view—particularly with regard to the operations of the Scientific Committee—that between decisions made on a scientific basis and the implementation of those decisions there must be a process that enables consideration of social and economic issues before the bill's full provisions come into operation. The Opposition proposes to address those matters by way of amendment in Committee.

I note that some Opposition and crossbench members requested that the Government delay consideration of this bill in Committee until the House has a full complement of members. However, the Government is continuing to press on with the legislation notwithstanding the fact that the Coalition is one member short as a result of the unfortunate death of Doug Moppett and that Elaine Nile has retired due to illness. That leaves the House without two voting members and, as a consequence, the Government has a significant voting advantage. The Opposition did not oppose the idea of considering this bill later when the House has a full complement of members but the Government has decided to proceed to the Committee stage, so that is how we shall proceed.

The Hon. CARMEL TEBBUTT (Minister for Community Services, Minister for Ageing, Minister for Disability Services, Minister for Juvenile Justice, and Minister Assisting the Premier on Youth) [5.42 p.m.], in reply: I thank honourable members for their thoughtful contributions to this debate. A number of issues were raised during the second reading debate to which I shall respond in replying to it. I stress that the Threatened Species Conservation Amendment Bill represents the Government’s legislative response to the recommendations of the Joint Select Committee on the Threatened Species Conservation Act. Suggestions that the Government has ignored many of those recommendations are incorrect. Of the 30 recommendations made by the committee, the Government has endorsed all but six. Many of the recommendations are addressed in the bill before the House and the others are being pursued through the administrative and policy processes of the National Parks and Wildlife Service.

Throughout the debate members opposite questioned the independence of the Scientific Committee and called for ministerial intervention in the listing process. In effect, the Opposition argued that the Government should be able to veto a proposed listing. I state for the record that the Government remains committed to the view that the threatened species listing process must be based strictly on scientific considerations. It is a matter of fact, based on scientific examination, as to whether a species is threatened with extinction. It should not, as those opposite would have it, be a political decision. The Opposition has failed to tell the House and the farmers that it moved the amendment that ensured the independence of the Scientific Committee. In moving the relevant amendment on 15 December 1995, the Hon. John Ryan said:

The Scientific Committee should be able to deliberate on its determination free from political interference.

The Government agrees with the Hon. John Ryan. In reference to the comment made by the Hon. Don Harwin that section 136 of the Commonwealth Environment Protection and Biodiversity Conservation Act provides for mandatory consideration by the Commonwealth Minister of social and economic factors in making determinations under that Act, I point out that the section in question actually refers to the approval of developments, not to Scientific Committee determinations. That said, the Government is aware of concerns expressed by the New South Wales Farmers Association that the social and economic impacts of listings are not considered fully in some circumstances. I assure the House that the Government is committed to ensuring that social and economic issues are considered properly at the point when a decision that might impact on a land-holder is made. In fact, the Threatened Species Conservation Act 1995 already provides comprehensively for the detailed consideration of economic and social issues in the identification and declaration of critical habitat, the preparation and approval of recovery and threat abatement plans and as part of the assessment of licence applications.

The Minister has advised that the operation of these provisions for considering social and economic issues would be enhanced by establishing a socioeconomic committee. This committee will not involve itself in issues that will remain the province of the Scientific Committee. The Minister has advised that the socioeconomic committee will be non-statutory and that its membership will be by ministerial appointment. It will include persons with expertise in environmental and/or social impact assessment, as well as other relevant key stakeholders such as representatives from the New South Wales Farmers Association and the Nature Conservation Council. This committee will be able to ensure more effective and timely decision making under the statutory provisions listed above. The Minister will consult key groups in the drafting of terms of reference for the committee before they are finalised.

Concerns have been expressed about the provision in the bill that gives the Scientific Committee the ability to withhold information in nominations when this is considered to be in the public interest. The Government acknowledges that a decision as to what is in the public interest could be seen as being beyond the scope of the committee's scientific role. Consequently, the Government would support an amendment that would require the Scientific Committee to advise the Minister when it considers that information should not be disclosed. The Minister would then decide whether a document that contains such information should be exempt under the Freedom of Information Act.

With respect to concerns raised about the listing of vulnerable ecological communities, I emphasise that the intent of listing is to draw attention to communities that are in decline and to serve as a precautionary function. Further, the establishment of the new category will enable the status of endangered ecological communities to be re-evaluated and, where appropriate, listed as vulnerable rather than endangered. As far as environmental planning instruments are concerned, I am advised that such instruments may already contain provisions regarding environmental protection for native animals and plants and their habitat. The amendments proposed in the bill enhance this situation.

I am advised that the National Parks and Wildlife Service intends to undertake extensive consultation on draft assessment guidelines. Therefore, the Government has no objection to proposed amendments making this an explicit requirement. As Reverend the Hon. Fred Nile pointed out in his contribution, the joint select committee recommended the establishment of a user-pays register of determinations. This was not considered necessary by the Government because anyone who is interested in accessing this information can do so, free of charge, from the National Parks and Wildlife Service web site. They can also obtain it from the committee. I have been advised that the joint select committee's recommendations about the establishment of rural advisory committees and the question of community education in general are being pursued by non-legislative means. In particular, the State's Biological Diversity Advisory Council will ensure that the particular concerns of rural communities are accorded high priority in the council's deliberations.

In response to concerns expressed by the Hon. Don Harwin and the Hon. Richard Jones, the Government recognises that there is an anomaly in the current Act regarding the accreditation of consultants who assess species impact statements. Therefore, we would support moves to amend the Act to require the institution of arrangements for the accreditation of suitably qualified and experienced persons who prepare species impact statements by an independent peer review body. Honourable members raised a number of other more specific issues, which I expect to be considered fully in Committee.

In conclusion, the Threatened Species Conservation Act aims to secure the recovery of plant and animal species that are in danger of becoming extinct. It integrates species impact assessment into the concurrence provisions of the Environmental Planning and Assessment Act. The amendments contained in the bill will enhance the biodiversity conservation objectives of the Threatened Species Conservation Act and safeguard the independence of the Scientific Committee. The bill responds appropriately to the recommendations of the joint select committee and to the enactment of new Commonwealth threatened species laws. I commend the bill to the House.

Motion agreed to.

Bill read a second time.

Motion by the Hon. John Jobling agreed to:

That standing orders be suspended to allow the moving of a motion forthwith: That it be an instruction to the Committee of the Whole that it have power to consider an amendment relating to the appointment of a socioeconomic committee.

Motion by the Hon. John Jobling agreed to:

In Committee

The CHAIRMAN: Order! I advise that the Committee has received an instruction from the House that it has the power to consider an amendment relating to the appointment of a socioeconomic committee.

Clauses 1 to 4 agreed to.
Schedule 1

Reverend the Hon. FRED NILE [5.54 p.m.]: Mr Chairman, I move:

The Hon. CARMEL TEBBUTT (Minister for Community Services, Minister for Ageing, Minister for Disability Services, Minister for Juvenile Justice, and Minister Assisting the Premier on Youth) [5.54 p.m.]: The Government does not support the motion moved by Reverend the Hon. Fred Nile. The Government wishes the bill to proceed tonight and does not believe it should be adjourned, for a number of reasons. The bill has been in the public domain for a number of months and was introduced in the other place in May. It has been the subject of numerous consultations and discussions. Only this week the Minister met with representatives of the Farmers Association to discuss various issues, which has resulted in the Government's decision to establish a socioeconomic committee. In essence, the bill is a legislative response to the parliamentary committee inquiry, which conducted extensive public hearings and inspections. Hundreds of public submissions have been received and considered. The Government does not believe that adjourning consideration of this bill at this time is necessary. It would do nothing more than delay the passage of important legislation designed to help ensure the better protection of species threatened with extinction.

The Hon. JOHN JOBLING [5.55 p.m.]: The Opposition supports the motion. The bill covers many matters. The fact that it was debated in the other place is irrelevant. This bill includes new amendments that were not considered in the other House and in many cases have not been in the public domain. These amendments were received by the Opposition today—they are very recent. Therefore, interested parties have not had time to consider them, nor has the Opposition had time to seek advice from various stakeholders. This is a poor camouflage of an ambush by the Government. Because of the importance of the bill and the need to consult relevant parties, the Minister should agree to the motion. If the Opposition is not given time to consider its position and to receive appropriate advice people will ask, "What has the Government got to hide?" This bill is too important to New South Wales. The Chamber must pass the motion and adjourn the debate.

The Hon. DON HARWIN [5.58 p.m.]: The contribution to the second reading debate by the Hon. Richard Jones foreshadowed 15 major changes the conservation movement seeks to make. These amendments became available this afternoon—a couple of hours ago. There are several pages of amendments from the Hon. Richard Jones and the Greens. The Opposition has been advised that the Government will support the amendments of the Hon. Richard Jones, yet the Opposition has had them for only a matter of hours. None of the affected interest groups—such as the Farmers Association, the Irrigators Council and others—has had a chance to consider the amendments. It is symbolic of the way in which the Government disregards the interests of regional New South Wales. If the Committee stage is not adjourned Country Labor members will feel the wrath of regional communities.

The Hon. IAN COHEN [6.00 p.m.]: It is disconcerting that the second reading debate on this threatened species legislation started last session and has gone on for a very long time. It has become extremely drawn out. Many people are concerned that the Opposition really is saying: Give us another couple of weeks to get the farmers' representatives out to beat up the issue in rural areas. We know exactly where the Opposition stands on this matter. It is quite clear that the Opposition is running a political agenda on this important legislation.

The Hon. Michael Gallacher: You see a window of opportunity, and you jump through the window and close it as quickly as you can.

The Hon. IAN COHEN: When we are dealing with a matter as important as threatened species, I have to say that I would not like to leave this legislation to the designs of the Opposition. I support the Government.

The Hon. RICK COLLESS [6.01 p.m.]: This is an absolutely heartland issue for the National Party. This legislation will seriously impede the people we represent in their aim of creating the wealth that they generate for all in New South Wales. The date on the amendments submitted by the Greens is 4 September, at 4.08 p.m. The amendments proposed by the Independent the Hon. Richard Jones are dated 4 September, at 4.01 p.m. The Coalition amendments are dated 27 August, at 12.38 p.m. All honourable members have had plenty of opportunity to consider the Coalition's amendments. All we are seeking is an opportunity to consider the amendments submitted to us today, less than two hours ago, so that we can debate them after proper consultation with and input from the people that we represent in this Chamber—the people that Country Labor purports to represent in this Chamber, but that Country Labor fails to represent in this regard.

I have discussed this issue with many people from a broad area of New South Wales. There is universal concern about the proposed amendments to the Threatened Species Conservation Act. All that Coalition members ask for is deferral of the debate on these amendments until two weeks time, after we have had a chance to have a look at the amendments and when we have a full representation of members sitting on the Opposition benches. The Hon. Ian Cohen said that the debate had been going on for many months and we need to finalise it. Sure, we need to finalise the debate, but what difference will another two weeks make to the process that has been going on since May?

The Hon. Michael Gallacher: Just two more sitting days.

The Hon. RICK COLLESS: What difference will another two sitting days make in the overall implementation of these provisions? None at all.

The Hon. Michael Gallacher: In fact, it is only one day because Government members want the House to rise at 5 o'clock tomorrow and tomorrow is private members' day. That means we will have just one more sitting day.

The Hon. RICK COLLESS: Just one more sitting day and two weeks in time. What possible difference could that make? I put to the Committee that it will make no difference to the overall implementation of these provisions. But it will allow parliamentary process to take its appropriate course, allowing proper consultation. The Minister has not consulted the stakeholders on this matter. The Minister has not consulted rural people. Those people have been talking to me, so I know they have not been talking to the Minister.

The Hon. RICHARD JONES [6.03 p.m.]: The Opposition well knows that the amendments to be moved by the Hon. Ian Cohen and me have been well canvassed in our speeches. If Opposition members had taken note of our speeches they would know what amendments we will move. The Opposition amendments were tabled only today. We had no forewarning of those amendments. We are happy to debate the Opposition amendments. Coalition members have had plenty of warning about the content of our amendments. They can be assured that the Government will not accept anything radical because it does not want to upset the rural community. The Government will indicate that it will either accept or not accept the amendments that we put forward. It will be for the Committee ultimately to decide what amendments it will accept or reject.

The Hon. DON HARWIN [6.04 p.m.]: I would like to respond to the latter comments made by the Hon. Richard Jones about Opposition amendments and clarify what the Hon. Rick Colless had to say. The Opposition's amendments on the Threatened Species Conservation Amendments Bill were tabled in this Chamber in June, and they have lain on the table of this Chamber since then. The Coalition has removed a series of amendments from one discrete area of the tabled document. The remaining amendments are exactly the same as those that were tabled in this Chamber in June. Yes, a new sheet of amendments was circulated this afternoon, but not one amendment on that sheet was not on the sheet of amendments tabled in the last week of June. If we could do that, why could not the Hon. Richard Jones and the Hon. Ian Cohen do the same with their amendments?

The Hon. RICHARD JONES [6.06 p.m.]: I accept the statement of the Hon. Don Harwin that the Coalition subtracted some amendments from its June document, so those amendments have been available to honourable members for some time. However, the import of the amendments to be moved by me and the Hon. Ian Cohen have been known for the same period. We also have refined our amendments, some of which the Government will accept and some of which the Government will not accept.

The Hon. JENNIFER GARDINER [6.06 p.m.]: I remind the Committee that it was not the Opposition that withdrew this bill from the speakers list for weeks and weeks before the recess. It was the Government that was responsible for its disappearance from the speakers list. Coalition members were ready for this debate. However, as far as I am concerned, if the Government goes ahead and pulls on this debate it will dance on the grave of the Hon. Doug Moppett. That is what I will be saying to my country constituents. It is absolutely disgusting that that would happen. The Government should think very clearly about this matter. There are hundreds and hundreds of people turning up to rallies being held in all over New South Wales on native vegetation and water issues. Everywhere that the Hon. Rick Colless and I and others go we are being told that the threatened species issue is even bigger than those issues. If the Government wants to bring on this debate, terrific! But, as far as I am concerned, it will be a totally disreputable thing to do.

The Hon. JOHN JOBLING [6.07 p.m.]: As all honourable members know, what is said in this Chamber may or may not have a direct relationship to an amendment that is subsequently moved. It is important to Committee debate and deliberations that members have time to consider amendments. In this case we are really talking about allowing one extra parliamentary sitting day for Government business. That is what it comes down to, because tomorrow is private members' day. We are arguing about equity and fairness. As has been pointed out, the Coalition has removed amendments from the list tabled in this Chamber. We have not added to or varied those amendments. I would assume that the Government would want to check that what I have said is quite correct. However, the amendments given to honourable members today by the Hon. Ian Cohen and the Hon. Richard Jones include changes, additions and refinements.

I do not know whether any honourable members have had fair opportunity to satisfy themselves about the import of those amendments. It is the role of all members of this Chamber to satisfy themselves about the nature of the amendments and their import before voting upon them. Honourable members have not had that opportunity. I do not know why the Government would insist on proceeding now to consideration of the amendments. Yes, there has been protracted debate. Yes, this bill has been in the public arena for a long time. And, yes, many issues have been discussed. That is fair. If we assume a continuation of that fairness and equity, it is fair to say that one more parliamentary sitting day is really of no consequence to the timeframe for the implementation of these measures, but it is of national and statewide importance to ensure that all honourable members are satisfied, when they proceed to debating the amendments, that they know what the amendments they are considering are all about. We should then be comfortable debating these measures after consulting the parties that we would wish to consult on them. The Government may well wish to consult other parties on these issues. It may wish to talk about these issues with various farming groups.

This is an opportunity that I am sure they would want to take advantage of to satisfy themselves. We are simply asking that we be given the advantage of that day, that we have the chance to consult. I cannot stand here in fairness and say that I am sure that what is in these amendments is what is purported to be. Nor can I say with surety that I understand the implications and ramifications of what the amendments might mean. The Minister is placed in the same invidious position, unless an advance copy of the amendments was given to her and she had the chance to have them carefully examined—something that the Opposition has not been given.

The Hon. CARMEL TEBBUTT (Minister for Community Services, Minister for Ageing, Minister for Disability Services, Minister for Juvenile Justice, and Minister Assisting the Premier on Youth) [6.11 p.m.]: I did not intend to speak again—I think I have clearly put the Government's reasons for believing that the bill should proceed tonight—but the contribution of the Hon. Jennifer Gardiner has forced me to do so. The Government accepts that the bill engenders controversy and there is concern. The Government has attempted to address that through a fairly extensive public consultation process, which I referred to in my previous comments. The bill was a legislative response to a parliamentary inquiry that also involved extensive public hearings, inspections, discussion and debate, along with public submissions. To suggest that in some way having the debate tonight is an attempt by the Government to manipulate the perceived numbers in the Chamber is wrong and misleading. I have to put on record that the Government rejects that outright. It is most unfortunate that the Hon. Jennifer Gardiner made the comments she did in the way that she did. I, along with many other people, hold the deceased Hon. Doug Moppett in a great deal of respect and I am greatly discomforted at the way the comments of the Hon. Jennifer Gardiner were put forward.

I make clear that it was never the Government's intention to in some way manipulate the timing of the debate. The bill has been debated in this Chamber previously and has been on the agenda for some time now. The Hon. Ian Cohen and the Hon. Richard Jones referred to the amendments in their speeches during the second reading stage. Let us not pretend that this is the first time when amendments in this Chamber have not been available more than a couple of hours before the relevant debate. I am not saying it is a good thing but we know that it happens time and again—this can apply also with Coalition amendments—that amendments appear only as we are going into Committee. Self-righteous comments about the amendments just being received, making it inappropriate to proceed, are inconsistent with the situation often faced in this Chamber. I make clear that the Government in no way has manipulated the timing of the debate. The fact that two people are missing from the other side of the Chamber I believe will not change the outcome of the bill. The Government believes that the matter should proceed.

Reverend the Hon. FRED NILE [6.13 p.m.]: When I moved on behalf of the Christian Democratic Party that progress be reported I was under the impression that it was a procedural motion and that I could not speak to it. Various members have now presented their views. The Government should remember two important points. One is that this Chamber is two members short. One, who has now been elected at the joint sitting, is a National Party member. The National Party has a deep and genuine concern about any legislation that affects country regions, particularly farmers. That is the reason National Party members are in this Chamber. On many occasions amendments, and even bills, have been passed by one vote. The second member yet to be sworn in is Reverend Dr Gordon Moyes. Our party, like the National Party, has always had a very deep concern about the welfare of the country and the farming community.

From memory, there has been a convention in this Chamber not to deal with controversial legislation when there are members to be sworn in. The records could be checked to establish that. This is not the first time members have been elected to fill casual vacancies. Usually the Government respects that situation and allows this Chamber to have a full complement of members before dealing with controversial legislation. This may not affect the final outcome—that is a matter for the Government to observe in the voting process—but I believe that has been the convention. The second convention that has been followed by the Government, which seems to have disappeared at present—all members of the crossbench will acknowledge this—is for the Government to consult with the crossbench on whether to proceed to the Committee stage of a bill. The Greens and the Australian Democrats often have many amendments. If some members do not want to proceed, the Government has been happy to wait until all crossbench members are ready to proceed.

Suddenly that second convention has been thrown out tonight. A number of crossbench members are concerned and want time to consider the amendments before being forced to vote on them. We have no idea of the ultimate impact of the amendments. The Minister correctly said that sometimes amendments are circulated at the last minute. But from my observation when that happens we are not dealing with life and death amendments as we are dealing with tonight—very serious amendments that could have a long-term effect on the State. Machinery or technical amendments may not have a major impact on the State but tonight we are in a different situation altogether. Passage of some of these amendments, even with the well-meaning intentions of the Greens and the Hon. Richard Jones and others, could have further ramifications than even those members understand. We need time to consider them. People who are experts in the area on the other side of the green equation, so to speak, may be able to point out that the amendments could have particular consequences.

Even the Hon. Tony Kelly and Country Labor would like to know the full impact of amendments before they are passed. It is difficult to understand the total impact of amendments when dealing with them in this Chamber, and they could be serious. For those two reasons the Government should accept the suggestion in good faith and let us proceed with the bill without any hesitation or question on 17 September when all members are present in the Chamber and have had time to consider the amendments and, importantly, discuss them with their constituents. That cannot be done tonight.

[The Chairman left the chair at 6.19 p.m. The Committee resumed at 8.00 p.m.]

The Hon. CARMEL TEBBUTT (Minister for Community Services, Minister for Ageing, Minister for Disability Services, Minister for Juvenile Justice, and Minister Assisting the Premier on Youth) [8.04 p.m.]: Earlier the Committee was debating with some vigour the motion by Reverend the Hon. Fred Nile to adjourn consideration of this bill. As I said previously, the Government is confident that the Threatened Species Conservation Amendment Bill will receive the support of this Chamber. The bill has been the subject of extensive consultation and discussion. The Government recognises that, as is often the case with legislation that does not have uniform consensus about its progression, not everyone will be totally pleased with the outcomes. However, we believe that there is an understanding of the decisions the Government has taken and the bill is a balanced response to the parliamentary committee's recommendations.

Having said that, I advise that the Government will not allow the Opposition to ignore the widespread support for the bill and to claim that it was carried only because of the timing of the debate. I make it very clear that the Government rejects categorically the argument that the timing of this debate has been manipulated. If members search their own hearts, they will know that is not the case. We particularly reject any suggestion that we have taken advantage of the absence from the Chamber of the member who has been elected in the place of the Hon. Doug Moppett. To allow that to go unchallenged besmirches the great integrity and decency that the Hon. Doug Moppett always showed in this Chamber. For these reasons, the Government does not oppose the adjournment of the consideration that has been sought by Reverend the Hon. Fred Nile. We will not let it be said that this bill passed on a manipulation of the numbers. We believe the bill has absolute merit and we are confident that it will stand up to consideration in this Chamber and pass with the support of this Chamber. We will not push ahead with the consideration in Committee tonight and allow it to be said that we in some way manipulated this process. For those reasons, the Government does not oppose the adjournment sought by Reverend the Hon. Fred Nile.

Motion to report progress agreed to.

Progress reported and leave granted to sit again.

HEALTH RECORDS AND INFORMATION PRIVACY BILL

Second Reading

Debate resumed from 11 June.

The Hon. Dr BRIAN PEZZUTTI [8.07 p.m.]: This important bill is part of a suite of legislation that is the result of the commitment of the Federal Government, in combination with a number of Ministers, to ensure appropriate privacy of health records and appropriate access by people to their records. The bill has two major functions. It protects the privacy of individuals and their health information, which is held both in the public and private sectors, and enables individuals to gain access to their health information. Further, it provides an accessible framework for the resolution of complaints about the handling of health information. That is a summary of the aims of the bill. The Minister's second reading speech was extraordinarily extensive. I was amused to hear the Leader of the Government read the entire second reading speech in this House. The usual practice is to incorporate second reading speeches. However, because the bill was introduced in this place, the Treasurer had to read the entire second reading speech.

The Hon. Richard Jones: It's not the first time it has happened.

The Hon. Dr BRIAN PEZZUTTI: It is the first time that it has happened to the Hon. Michael Egan. The bill contains a good definition of health information. The Treasurer listed the various privacy principles in their entirety, and I think even he was amazed at the nature of those principles. I believe this bill will go a long way towards achieving the aims that have been set. In drafting the legislation it was important to ensure that it established a process that protected people's privacy but did not get in the way of patient care. We could prevent all access to a patient's private health records but that could create dangerous problems if that person were hospitalised again in the future.

The best privacy principle for health records would be to burn them to prevent all access. However, that would not to be a very useful strategy if we needed to rely on those records some time in the future. For example, 20 years hence a health professional might need to know whether a patient was immunised at age four or at 20 or whether evidence of Crohn's disease was detected following an appendicitis operation. This is important information: A patient's medical history is useful if that patient gets sick again. This legislation addresses the need to keep health records private while allowing access to those records when necessary. This legislation ensures that patients can access their health records at any time. That was not necessarily the case in the past.

Patients will now be able to access information stored in medical records that was previously unavailable to them. Patients can now correct their records. For example, a patient can say, "No, they made a mistake: I'm not allergic to penicillin, I'm allergic to erythromycin." It is important that patients are able to check that information. It is also in patients' interests to ensure that their health records are retained for a certain period and to nominate how their records should be disposed of. In that regard the bill is very specific, well drafted and practical. Of course there are some costs involved. Electronic health records have been created in order to make records accessible within a reasonable period while maintaining barriers to public access.

People move around these days: They do not reside in the same place their whole lives or see the same doctor. The Commonwealth is fostering the creation of electronic health records in all Australian States. The major difficulty confronting the New South Wales Privacy Commissioner, the very learned Chris Puplick, was how to compile those records while retaining privacy. With the assistance of the Privacy Commissioner, the Ministerial Advisory Committee on Privacy and Health Information was established. The Privacy Commissioner and the committee have signed off on this legislation as being effective both in protecting privacy and in providing information. That is a very big ask. Of course the process will not be perfect, but this is about as good as man can do.

Electronic records are being created now. In public evidence to the Select Committee on Mental Health the Director of the New South Wales Centre for Mental Health, Professor Beverley Raphael, indicated that the Commonwealth Government has funded the compilation of electronic health records for people with mental health problems in this State in compliance with the provisions of this legislation. Commonwealth funding has been used to get that process started. Because Professor Raphael and her team were so advanced in their thinking and because this legislation had been drafted, they were able to tender for contracts to establish a process that complied with the bill. As a consequence, we are streets ahead of the other States because the Commonwealth is now able to fund Professor Raphael.

The other States have not introduced the relevant legislation and protections that allow medical information to be collected, collated and kept. It is also important to have a mechanism for checking who accesses health records. Professor Raphael is leading the Commonwealth in producing electronic health records for people with mental illness that comply completely with the 15 Federal privacy principles and with State legislation. I have no idea what this scheme will cost. The Department of Health has embarked upon a tender process for replacing handwritten health records with electronic records—at least in the public sector. I understand that that program will cost about $450 million over a number of years.

Huge savings will be achieved through this process and there will be huge advantages for patients, not just because health records will be available electronically and can be transmitted and accessed rapidly but because we will be able to track who accesses those records. We can then identify whether that person is allowed to do so. That is an important protection. The benefits of this scheme include rapid access to health records, the ability to make corrections to those records and, more importantly, the ability to identify who has accessed health records. I will not go through the principles of the bill as the Minister's second reading speech does not need repeating. However, I have several concerns about this legislation.

I am worried about limitations to access by relatives and friends. Those who would appear to have one's interest at heart will be prevented from accessing one's health records. A husband will not necessarily be able to access his wife's records without her explicit consent. Children aged 18 or even younger must consent to their parents accessing their records. The privacy principle does not allow others to access a patient's health records even if it is in that patient's best interests. Written consent must be obtained to enable access, which is a little clumsy. There will be difficulties when a person is not in a position to give written consent and a guardian's consent must be obtained. There are some access problems but this bill is about as good as it gets in striking a balance.

The other important point is that the Minister may by regulation introduce health privacy codes that may modify the application of the agreed privacy principles covering the collection, retention, disclosure, use or transfer of electronic or computer linkages and procedures to deal with information held by organisations. Changes may be made by way of regulation when this legislation is enacted. Honourable members in this place must watch carefully what the Minister does by way of regulation. He will not be able to do anything that is prohibited by the Act but via regulation he will be able to change the way in which we do things. It is imperative that the process be subjected to the same level of scrutiny as that applied to the introduction of the bill. The bill contains additional reasons for non-compliance relating to private sector providers where other Acts apply, such as regulations under the Medical Practice Act to deal with retention and disposal of records held by individual practitioners, and special provisions relating to the retention of and access to records and amendments to other health information. I believe these practical arrangements will be workable.

The provisions do not apply to small businesses that employ less than five people. Originally the Opposition foreshadowed moving amendments to exclude small businesses or agencies within the meaning of the Privacy Act. The Opposition was concerned with the operation of HealthQuest, a government agency that provides advice to the Government on government employees. However, the Opposition has been assured by the Minister and his advisers that HealthQuest is not an independent agency and that all agencies of the State are covered by the bill. More important, HealthQuest is an agency within the Central Sydney Area Health Service and those who are part of that area health service are covered by the bill.

The Opposition is of the view that the bill should not contain a definition of "compliance" that is different from the definition in Commonwealth legislation. It would be nonsense if people in New South Wales who run a practice with three or four employees with a turnover of less than $3 million were subjected to different rules and reporting mechanisms. In light of the Government's assurances, the Opposition will not move the foreshadowed amendments to clause 4 of the bill. My colleague in the other place the honourable member for North Shore has had wide consultation with the Privacy Commissioner, the Council of Social Service of New South Wales [NCOSS], the New South Wales branch of the Australian Medical Association [AMA], the Mental Health Association, the Mental Health Co-ordinating Council and the Private Hospitals Association.

The last three associations did not provide her with a response. NCOSS welcomes the bill but has concerns about unauthorised access and auditing compliance. The AMA is of the view that the intent of the bill, as disclosed by the second reading speech, appears reasonable, but expressed concern about the practical aspects and seeks early review of its ramifications on the health sector after six to 12 months. The regulations provide a practical way in which to implement the bill. They do not conflict with the bill but expand on it, dealing with the requisite forms, records and so on. This House will have the opportunity to amend the regulations if necessary. The AMA, NCOSS and the Privacy Commissioner can decide whether the regulations are fair and reasonable or otherwise.

I believe adequate protections are contained in the bill provided that this House keeps its mind on the job, because the other place is far too busy with other matters. The bill is binding on the Crown. This means that no-one in this State—no Minister of the Crown or government agency—is beyond prosecution or being held to account for privacy records. I note that the Anti-Discrimination Act does not include a definition of small business, but I understand that the definition contained in the Commonwealth legislation will apply. I understand also that the Government will move amendments to the bill with regard to the use of health records by the media. The Opposition will consider those amendments when they are moved, but from my briefing I believe they will be acceptable to the Opposition. I have not seen a copy, but I have been briefed on their intent. The shadow Minister and I are confident that the identified problem will be solved by the amendments.

The Minister gave his second reading speech on 11 June. The bill has been the subject of major consultation and forensic review by the Privacy Commissioner. It has been discussed widely with major organisations, and my colleague in the lower House and I have carefully read the bill. I believe that the bill deserves the support of the Opposition. However, the Opposition will not move the foreshadowed amendments because they are in conflict with Commonwealth legislation. I look forward to the Minister moving amendments in Committee. I have now received a copy of those amendments and indicate that the Opposition can see its way clear to support them. I wish the Government well in the implementation of the bill. We look forward to the regulations and the production of the electronic records, because the absence of e-records could put people's health at risk. The Opposition supports the bill.

Ms LEE RHIANNON [8.28 p.m.]: The Greens welcome the Health Records and Information Privacy Bill, which sets out a regime to protect the privacy of the people of New South Wales with respect to their health records. We recognise that it represents a genuine attempt to put in place an appropriate privacy regime, particularly for electronic records. However, we have significant concerns that the bill as it stands lacks important privacy safeguards. The issue of privacy is, of course, a matter of some importance for the Greens. All too often both government and the private sector act with reckless abandon with respect to the privacy of individuals. Personal information, financial data, consumer history and political opinions are all details that can be put to inappropriate and invasive ends.

Health records are particularly personal in nature, and their inappropriate release could result in considerable embarrassment and discomfort for individuals. In some cases it could have more serious consequences, such as the loss of employment, the suffering of discrimination or a strain on personal and family relationships. In this vein, we are concerned that the bill does not make it an offence to access health records without authorisation. An offence only arises if it can be proven that a health record was used inappropriately. This, we believe, does not offer sufficient protection to the public.

Similarly, we are concerned that the bill does not prevent health providers from forcing patients to allow their files to be placed on electronic files or used for research purposes. This is particularly an issue for people in isolated areas, who may not have the option of going to another doctor or hospital if their first choice will only accept them on the condition that they sign over their files. The Greens acknowledge that this bill is the result of recommendations from an independent committee chaired by the Privacy Commissioner, and that the process which produced it was thorough. The bill articulates 15 health privacy principles governing the management of health records and information, as well as procedures for the handling and management of complaints about breaches of those principles.

The Greens welcome the role in the bill for the New South Wales Privacy Commission as the complaints-handling body for the private sector, but we are concerned that the current budget of the commission is inadequate for its current functions, let alone this added responsibility. It is imperative that the Government provides the Privacy Commission with the added funding necessary to handle health-related complaints. It is easy for government to delegate responsibility, but apparently much harder for government to allocate the requisite funds, a phenomenon which we see frequently with respect to local government.

The Greens are also concerned that the bill does not include a scheme for compulsory compliance audits. It is clear that such audits are necessary to provide both cultural change and community confidence that the privacy of health records is secure. We are disappointed that the Government has taken this conservative path, citing the financial burden that compliance audits would place on both the public and private sectors. Clearly this situation may change in the future, and we certainly hope that down the track this Minister or a future one will utilise the regulation-making power in the bill to introduce compulsory compliance audits. We acknowledge, however, that on the whole the bill is a step forward for privacy in New South Wales, and we call on the Government to make this step only the first of many. We will be supporting the amendment that I understand the Democrats will move. I urge all honourable members to do so as that will indeed strengthen the bill.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [8.33 p.m.]: The Democrats support the Government's aim: of giving a framework to health records and information privacy in the bill. This is a very difficult endeavour, and we believe the Government has made a very sincere and genuine effort to address the difficult balancing act between the needs of privacy and the need for access to information. This bill will establish an Act that will regulate the use of, and access to, health records held by public and private sector organisations operating in New South Wales. It is intended to establish a regulatory framework for the management of electronic personal health information by public and private sector organisations.

Those who have not worked in the health sector may not realise the immense difficulties that lack of health information causes the doctor seeing a patient. The doctor basically starts from square one. To take a reasonable record of someone's health history requires at least half an hour, and that assumes that the patient is coherent and remembers everything. However, often patients do not remember the sequence or timing of occurrences in their health history, important aspects may be omitted, drug treatments and dosages may be unclear, and many other matters of interest may well require the new doctor to ask the pertinent questions again. That takes, and sometimes wastes, an immense amount of medical time. Make no mistake about that. It is worse in complex cases.

Of course, patients may not be able to communicate, in the simplest case because they cannot remember, do not understand, have language problems, or have had a stroke and have difficulties with speaking, or may be none too bright or unconscious. In each case, a great deal of information has been lost, or great difficulty is involved in obtaining that information. All too often patients suffer because the medical practitioner does not have that information. The fact that a patient is diabetic and in a coma is highly significant on occasions. If the doctor does not know that a patient is a diabetic, by the time the practitioner establishes that fact the patient could have suffered irreversible brain damage. This is extremely important information.

So, although we are very conscious of privacy, we must also be conscious of the fact that ignorance is not an absolute safety factor and something to be protected at all costs. There is a considerable advantage in having information. Of course, there are some disadvantages, such as inability to obtain insurance, or incidents of discrimination occurring where the wrong people get hold of health information. Indeed, such information may cause severe embarrassment in family relationships. This is a matter that was referred to by my colleague the Hon. Dr Brian Pezzutti. So information about individuals must be handled delicately in an effort to manage their health and interpersonal relations.

At another level, I was one of the highly unusual Democrats who supported the Australia Card. Not many people supported the Australia Card. I was a supporter of it because questions of whether pesticides increase the incidence of lymphoma, or whether electric fields cause leukaemia among electricians, are difficult to research and require studying a large number of people for a long time. The cost of building and maintaining those databases is horrendous. Much of that type of research simply is not done because of the difficulties in collecting data. The good research comes out of Scandinavia, where cards enable the tracing of individuals, and the cross-referencing of their health and mortality to their occupations.

While it may be threatening to know that this sort of information is in the hands of the State, access to such information has its advantages in the maintenance of public health, the identification of public risks and the formulation of preventive health policies, which are dear to my heart. So it is a question of ensuring that the use to which information is put is in the interests of the individual and hopefully of the population, and not to their detriment. It is not the information that is harmful; it is how it is used. The bill establishes codes of practice, mechanisms for complaints and dispute resolutions, and criminal penalties for offences committed against the Act. The Act will implement the recommendations of the Ministerial Advisory Committee on Privacy and Health Information. The proposed Act establishes 15 health privacy principles regarding the use of health records. Those are defined in schedule 1 to the bill. I will not go through all the other provisions of the bill one by one as they are available for people to read. Under part 5 of the bill the application of information technology to the management of health and the transfer of data from New South Wales to other States or Commonwealth agencies may be subject to a code of practice.

People rejected the Australia Card but we all got a tax file number, which was a unique identifier. Under this system we will have a unique health record. And we are all identified by the Credit Reference Association. So databases have been built up about us that are under less scrutiny than the Australia Card records would have been. Indeed, the worry is that we will have all the disadvantages of not having a universal scheme together with all the disadvantages of having people build databases that are less supervised than a universal scheme would have been—in other words, the worst of both worlds.

In the early 1980s, I think—it was certainly quite some years ago—I spoke to a committee chaired by Barry Jones about the management of information. I talked about the use of pooled information for the public good, particularly with relation to health research but also so that bills could be staggered and would not arrive all at once. I also spoke about the cost of many different organisations having to maintain separate databases. Costs could be cut if they could all plug into a common database. That has not yet been agreed to but perhaps if the licensing agencies, the electricity agencies, councils and all the other groups that have records plugged into an agreed system it would be far more convenient for people moving house, paying their bills and so on. Fear of the misuse of information has caused the loss of available benefits yet information on the database is still quite vulnerable to misuse. That is the case with this proposal.

My philosophy that it is not the information that is the problem but the way in which it is used has led me to look at situations in which the information is misused. Some private hospitals require a patient entering the hospital to sign an agreement that any information about the patient's health may be used by the hospital in assessing the treatment required. So a large private hospital chain could gather magnificent comparative data on the performance of surgeons, the success of one operation against another, or the efficacy of one drug against another. That may then have an economic value. Indeed, research may even be privatised as part of the process in that the only people able to do this type of research would be private sector organisations with the data management setup and the permission in place to gather the data.

The implications of that are significant. The technology for gathering this type of information already exists in computerised private hospital chains and indeed in public hospitals. It could be done relatively easily. So we should look at what is done with the information. For example, if an insurance company had information on a father with a hereditary problem and his son applied for insurance the son could be discriminated against on the basis of the father's record. If the son had not revealed the information and was knocked back for insurance should the insurance company be forced to offer the same sort of deal as it would to someone it had no information about? If information about health leaks is traded illegally, which is clearly a possibility given the huge financial incentive to find out whether patients are high risk, should the onus of proof be on people to prove that the insurance company that is not offering them the normal deal on insurance has information and has achieved access to their health records, or should the onus of proof be on the insurance company to prove that it had a valid reason for not offering the same deal as everybody else and did not have access to the information?

The Government has indicated that it is not willing to support the amendments I prepared to reverse the onus of proof, on the grounds that it is difficult for insurance companies to prove a negative. Given that information can be traded quite untraceably in many cases, which approach is better? The information is neutral; it is how it is used that is the problem. That is the same point I make when we talk about drug policy: it is not the drug; it is how is used. The Government has made a good step in trying to protect privacy while making records more available. It has supported the Privacy Commissioner's powers under the Act. I fear that the Government has been slightly unrealistic in the sense that people complaining about the misuse of their health information breaching their privacy have a difficult task in proving it. People whose information has been illegally obtained and misused often will not be able to prove that, and thus the bill will not protect their privacy. At least the Government has addressed this area.

The Council of Social Service of New South Wales [NCOSS] had concerns in relation to unauthorised access to health information. Sanctions are provided against corrupt disclosure, use or supply of health information, but there are no sanctions against unauthorised access to information. NCOSS asked that that be prohibited. It also said that consent to link health records must not be a condition of treatment and asked that the legislation make it unlawful to refuse to provide health care on the grounds that a person had not consented to participate with electronic health records. Unfortunately, the Government would not support either concept. It will be difficult to predict how it will work in practice. It worries me that there may have to be a tightening up, because there will be a period in which information has been accessed in a certain way. Information about a number of individuals may have been transferred. This is a genuine and reasonable attempt to address this difficult issue. The Australian Democrats support the bill.

The Hon. RICHARD JONES [8.50 p.m.]: The Council of Social Service of New South Wales [NCOSS] released a report in May that offered support for the bill. However, it outlined some concerns that organisations and individuals had and it proposed amendments to rectify them. First, it proposed that the legislation be amended to prohibit unauthorised access to health information and include penalties for obtaining such access. Currently the bill contains sanctions for corrupt disclosure, use or supply of health information, but there are no sanctions for unauthorised access. Several New South Wales Acts already prohibit access without lawful authority, including the Crimes Act 1900 and the Births, Deaths and Marriages Registrations Act 1995. The Minister's office has advised me that amendments to the Crimes Act in June 2001 created a range of offences relating to unlawful access, modification and impairment of data. It included penalties involving between two and 10 years imprisonment. It was developed in conjunction with other States and Territories to ensure a nationally uniform approach to such offences.

Second, NCOSS argued that the legislation should provide that it is unlawful for a health facility to refuse treatment on the grounds that a person has not consented to participate in electronic health records [EHR]. The bill currently does not forbid discrimination on the basis of whether a person has consented to have his or her health information linked in EHR. Clause 70 (2) of the bill addresses this issue by making it an offence to obtain any consent required under the Act including, but not limited to, consents required under Health Privacy Principle [HPP] 15 by use of threat, intimidation or false representation. While EHR will encourage consistency of practice throughout the health system, there is certainly concern in the community that information recorded by prior practitioners could prejudice or unduly influence the opinions and diagnosis of future practitioners. The security of EHR is also of concern. The workshops run by NCOSS revealed that consumers feared that hackers could obtain sensitive information and they wanted a high level of control over who could access their records. Fear was also expressed that in years to come the integrity of the information could be compromised should a future government outsource the administration of EHR.

The AIDS Council of New South Wales notes that EHR raise particular concerns for people with a chronic illness. This issue needs to be addressed in the implementation process. Generally the concerns relate to the potential for prejudicial treatment by private health organisations and insurance companies if an individual's health information were to be disclosed. This highlights the need for the implementation process to include training across all disciplines to ensure that all health service providers have an equal capacity to competently participate in the system. The Privacy Commissioner released a statement in relation to the bill on 14 June. He said:

The commissioner noted that his office has been extensively consulted with respect to the development of this bill. However, he outlined a number of concerns about the legislation, in particular the lack of adequate protection afforded employees in both the public and private sectors; the lack of adequate protection afforded employees and customers of businesses with less than a $3 million turnover; the adequacy of HPP 10 and HPP 11 with respect to the direct relationship test; the need for some retrospective application of HPP 15 to bring existing systems into compliance with the requirement for express consent; and the need to include DNA data used for identification purposes within the provisions of the legislation. I have been advised that amendments pursuant to the commissioner's request were not actioned due to constitutional consistency with the Commonwealth legislation or because of a need to minimise compliance costs. While I can appreciate both reasons I argue that, first, sometimes New South Wales should take and implement improved legislation even if it is not 100 per cent compliant and perhaps the Commonwealth would see fit to follow. Second, whilst compliance is necessary, we should ensure that what people are complying with is as proficient as possible.

The Hon. CARMEL TEBBUTT (Minister for Community Services, Minister for Ageing, Minister for Disability Services, Minister for Juvenile Justice, and Minister Assisting the Premier on Youth) [8.55 p.m.], in reply: I thank honourable members for their contributions to the debate. When amendments are moved during the Committee stage further issues will be canvassed. In response to comments made by the Hon. Dr Brian Pezzutti in relation to HealthQuest, I assure him that it will be required to comply with the terms of the Health Records and Information Privacy Bill, which specifically covers public sector agencies. Clause 4 contains an extensive definition of the term which was designed to ensure coverage of area health services established under the Health Services Act. I am advised that HealthQuest forms part of the Central Sydney Area Health Service, which is serviced and administered under that Act. As such, HealthQuest is already covered by the Privacy and Personal Information Protection Act and will also be covered by the provisions of the Health Records and Information Privacy Bill. I commend the bill to the House.

Motion agreed to.

Bill read a second time.

In Committee

Part 1

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [8.57 p.m.]: I move Australian Democrats amendment No. 1:

information, and

(d) providing a framework for population research in the public interest using pooled, and anonymous, data.

As I said in my contribution to the second reading debate, health information relates to individuals but it needs to be used in a collective manner to discover public health trends. In the public interest, pooled data can help one to come to conclusions. I referred to the linkage in Sweden of data about one's occupation with one's life expectancy. For example, data is available that compares the amount of fish in the diet of Swedish fishermen to their blood pressure. Data is available on railwaymen who use a lot of pesticides while keeping weeds off the tracks and their incidence of lymphoma compared to that of the general population. Generally it is important to use data from large populations when comparing public health trends. This amendment states that an objective of the bill is to provide a framework for population research in the public interest, using pooled and anonymous data. In other words, you take the names off it but you keep the other data about their demographics and their health. You compare the demographics with their health, then you can formulate public policy. This is an important objective of the bill, and it should be included.

The Hon. CARMEL TEBBUTT (Minister for Community Services, Minister for Ageing, Minister for Disability Services, Minister for Juvenile Justice, and Minister Assisting the Premier on Youth) [9.00 p.m.]: The Government does not support the amendment moved by the Hon. Dr Arthur Chesterfield-Evans. As honourable members would be aware from the second reading speech, the Health Records and Information Privacy Bill deals exclusively with the collection, use and management of information that either identifies or can identify an individual person. It does not deal with the de-identified—that is, anonymous—information. The amendment, which is intended to be included in the purpose and objects clause of the bill, in reality runs counter to the purpose of the bill. In addition, it refers to population research using anonymous data. However, no provisions in the bill deal with population research. The only research provisions relating to the use of health information is de-identifying. The amendment also fails to reflect the content of the bill. The Government is also concerned that important public health projects rely on the use of anonymous data. Any suggestion, however misleading, that this type of research must seek to comply with the requirements of privacy legislation could undermine the research. For these reasons the Government does not support the amendment.

The Hon. Dr BRIAN PEZZUTTI [9.01 p.m.]: The Opposition does not support the amendment. Clause 3 (2) states:

The concerns of the Hon. Dr Arthur Chesterfield-Evans are included in the purpose and objects of the bill, despite what the Minister may have said. My only concern about using de-identified information is the way in which the health information exchange process within the computerised system within NSW Health deals with de-identified information. I do not support the amendment of the Hon. Dr Arthur Chesterfield-Evans. It does not add to the bill.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [9.02 p.m.]: I am disappointed with the Government's answer.

The Hon. Dr Brian Pezzutti: My answer was better.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: Yes, the Opposition's answer was far better. The Hon. Dr Brian Pezzutti said that it was in the bill. I do not dispute that in a sense, but it should be stated up front. The idea that the bill is not about population research is silly because it should be about population research. If we are trying to govern for the best of the people of New South Wales, population research is quite desirable. The idea that collecting this much information will have no impact on population research is an almost absurd proposition. The fact that the bill does not refer to anonymous data is also irrelevant in the sense that the data exists. Nearly all the research, certainly population research, will render it anonymous. It is a simple matter of deleting the field that contains the name, or using an identifier that has a unique de-identified identifier that takes out the person's name. Without doubt this will be involved in population research. The Government's idea that it does not relate to population research is a poor answer. It worries me quite a lot that the Government has that poor conception and understanding. Although I thank the Hon. Dr Brian Pezzutti for saying that it may have been covered elsewhere, it does not hurt to put in the objectives. I am disappointed that the Government and the Opposition do not support the amendment.

Amendment negatived.

The Hon. Dr BRIAN PEZZUTTI [9.04 p.m.]: As I indicated in my contribution to the second reading debate, the Opposition does not propose to move its circulated amendments Nos 1 and 2, which were drafted by Parliamentary Counsel.

Part 1 agreed to.

Part 2

The Hon. CARMEL TEBBUTT (Minister for Community Services, Minister for Ageing, Minister for Disability Services, Minister for Juvenile Justice, and Minister Assisting the Premier on Youth) [9.04 p.m.]: I move the following Government amendment:

Page 14, clause 15, lines 15-17. Omit "unless and until the information is actually disseminated to the public or any section of the public".

During the consultation undertaken on the bill an anomaly was identified in the manner in which the bill applies to information that is in a generally available publication. Clause 5 (3) (b) excludes coverage of material that is contained in a generally available publication. Clause 4 (1) defines a generally available publication as a publication that is generally available to members of the public. The provision recognises the difficulty in imposing the requirements and obligations of the bill to material that is broadly in the public domain. Clause 15 (2) creates a discrepancy. It deals with the application of health privacy principles allowing access to information and a right to correct information to the news media. The provision states that these principles will not apply to news activities until information is disseminated to the public or any section of the public. This contradicts the broader intention of the bill, which is that where information has been disseminated publicly it will fall outside the ambit of the bill. The amendment will correct this anomaly.

In proposing this change the Government is also mindful of the fact that there are alternative means of pursuing a correction in a newspaper or other media report. The Australian Press Council Privacy Standards specifically deal with this issue and provide for media organisations to correct their information. I also emphasise that the amendment will not in any way alter the way that other health privacy principles apply to the news media. The bill will require the media to comply with health privacy principle 5, which obliges them to take reasonable steps to ensure the information is held securely. I also draw attention to principle 9, which will oblige news media to take reasonable steps to ensure that the information they use is accurate, relevant, up to date and not misleading.

The Hon. Dr BRIAN PEZZUTTI [9.06 p.m.]: The Opposition very much welcomes this amendment. I admit that we did not notice it. Any news medium will have to keep privacy watch on what it owns. It is not a matter of complying only when they publish. I am very pleased the Government has noticed that and corrected it.

Amendment agreed to.

Part 2 as amended agreed to.

Parts 3 to 5 agreed to.
Part 6

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [9.08 p.m.], by leave: I move Australian Democrats amendments Nos 2, 3, 4 and 5 in globo:

52 Proof of discriminatory behaviour

(e) in the case of a complaint that establishes that the terms of an insurance policy have been varied in contravention of HPP 16, an order restoring the terms of the insurance policy to what, in the opinion of the Tribunal, they would have been had they not been varied,

(f) in the case of a complaint that establishes that the benefits payable to a person, or the contributions payable by a person, under a superannuation scheme have been varied in contravention of HPP 16, an order restoring the benefits or contributions to what, in the opinion of the Tribunal, they would have been had they not been varied,

(4) An order referred to in subsection (1) (e) or (f) has effect according to its terms.

16 Discriminatory behaviour

dealing with

The reality is that it will be much easier to buy health information from corrupt officials than to prove that such information has been bought. This information can be used to track genetic diseases. The presence of a disease in a relative means that it is likely to be found in other relatives. Armed with this information, insurance companies, health funds and superannuation funds can exclude a person from the benefit he or she would otherwise have enjoyed. The financial consequences of certain diseases and genetic information are likely to be known to these agencies before they are recognised by the community. I would like to add a clause to the bill to force insurance companies that deny a benefit—for example, standard rate—to show the basis on which such benefit is denied and where they got the information that resulted in the denial.

If they are not able to show that the information was legitimately obtained, they must offer the benefit as if the information was not held by them or did not exist. The onus of proof that the information was legitimately obtained should lie with the respondent, not with the complainant. In practice, this would be achieved by a person appealing to the Privacy Commission to establish a prima facie case and then asking the Administrative Decisions Tribunal to rule that the insurance company cease using the information and provide the benefit or product that would have been offered in the absence of such information. This amendment would reverse the onus of proof, but I believe that complainants would not be able to prove that the information was illegitimately obtained and used to discriminate against them.

The reversal of onus of proof does not put too great a burden on the companies. Theoretically, if they collect the information from a person or from the a doctor, having obtained a signed release, they would be able to prove they had done the right thing. They could say, "This is the information that was obtained. This is the way it was obtained. This is why the benefit is not being offered." If they could not prove legitimacy, the question to be asked is why could they not prove such a straightforward process? The amendments introduce a reversal of onus of proof, but I believe it is the only practical way for the Act to be workable in a privacy sense. I commend the amendments.

The Hon. CARMEL TEBBUTT (Minister for Community Services, Minister for Ageing, Minister for Disability Services, Minister for Juvenile Justice, and Minister Assisting the Premier on Youth) [9.11 p.m.]: The Government does not support the proposed amendments moved by the Hon. Dr Arthur Chesterfield-Evans. As honourable members are aware, the Health Records and Information Privacy Bill is designed to deal with the collection, use and management of health information. The amendments moved by the Hon. Dr Arthur Chesterfield-Evans deal with discriminatory behaviour, which is a completely different issue. The question of when it is unlawful to discriminate against a person in relation to insurance superannuation or the provision of goods and services is already comprehensively dealt with by the Anti-Discrimination Act.

Under that Act it is already unlawful to discriminate on the basis of a disability, with "disability" defined broadly to include illness or disease. The Anti-Discrimination Act already deals with the issue of discriminatory conduct by insurers and superannuation schemes where a person has a disability. Under the Act, discriminatory conduct can be lawful if the different terms or conditions of a policy are based on actuarial or statistical data on which it is reasonable to rely. The proposed amendment, therefore, cuts directly across the existing scheme under the Anti-Discrimination Act. I would suggest that if the honourable member has concerns with the provisions of the Anti-Discrimination Act, those concerns would be best addressed in the context of that Act. For these reasons, the Government does not support these amendments.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [9.12 p.m.]: The existing Anti-Discrimination Act is sufficient, provided one can prove that discrimination occurred. These amendments relate to the essence of proof. I have moved these amendments because I do not believe that people would be able to prove that they were discriminated against. It may be shown actuarially that a certain gene or medical condition worsened a prognosis, thus giving an insurance company a basis for discrimination. If privacy were maintained and the company did not have that information, it would not have an actuarial basis to discriminate. If a person cannot prove discrimination or, in the case of my amendments, the company is not able to prove that it obtained the information by lawful means, then this is a necessary and practical augmentation to the existing Anti-Discrimination Act. It does not in any way contradict or conflict with it.

Amendments negatived.

Part 6 agreed to.

Part 7 agreed to.
Part 8

The Hon. Dr BRIAN PEZZUTTI [9.14 p.m.]: I draw the Minister's attention to clause 78 (1) of the bill, which states:

(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.

That is a limited review that is proposed rather than included as an actual practice of the Act. Subclause (2) states:

(2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.

This bill will be assented to and various parts will be promulgated. Some parts of the bill will not be promulgated because the Minister will delay the impact of the Act on some private institutions, as is stated in the Act, by allowing a phasing-in period. Therefore, the Act and regulations may not be fully in place in five years. I am concerned that we may have to wait five years for the full impact to be felt before the bill can be reviewed. I seek advice from the Minister about this matter. I am concerned whether the review will be undertaken five years after the entire bill is in place or simply from the date of assent. If things are not going well, it is not acceptable that we have to wait five years before the Minister's review.

The Hon. CARMEL TEBBUTT (Minister for Community Services, Minister for Ageing, Minister for Disability Services, Minister for Juvenile Justice, and Minister Assisting the Premier on Youth) [9.17 p.m.]: As a matter of clarification, does the Hon. Dr Brian Pezzutti want to know whether the review will be five years after the date of assent to the Act or five years after all aspects of the Act are proclaimed?

The Hon. Dr Brian Pezzutti: Five years after all aspects of the Act are proclaimed.

The Hon. CARMEL TEBBUTT: Which would obviously be longer than five years.

The Hon. Dr Brian Pezzutti: That is right.

The Hon. CARMEL TEBBUTT: I do not have specific advice, but I undertake to take up the honourable member's concerns with the Minister and obtain a response. I am advised, however, that the "review of the Act" clause is a standard clause. It says "5 years from the date of assent to this Act" rather than five years from the date of proclamation of all aspects of the Act. I believe that would give some indication that it would be five years after the actual assent of the Act, which will occur in the near future. I will clarify the matter and obtain advice from the Minister and provide it to the honourable member.

The Hon. Dr BRIAN PEZZUTTI [9.18 p.m.]: I am satisfied with that answer. If at any stage we discover that is not acceptable, we can always come back and amend the Act.

Part 8 agreed to.

Schedules 1 to 3 agreed to.

Title agreed to.

Bill reported from Committee with an amendment and passed through remaining stages.

ADJOURNMENT

HOUSE OF REPRESENTATIVES STANDING COMMITTEE ON ECONOMICS, FINANCE AND UBLIC ADMINISTRATION INQUIRY INTO LOCAL GOVERNMENT AND COST SHIFTING

The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [9.21 p.m.]: The Federal House of Representatives Standing Committee on Economics, Finance and Public Administration has commenced an inquiry into local government and cost shifting. This is an important inquiry that is long overdue.
The Hon. Dr Brian Pezzutti: It's about time.

The Hon. DUNCAN GAY: As my colleague said, it's about time. The committee has received more than 250 submissions from individuals, community groups, councils and regional organisations across the country as well as from peak representative bodies for local government in the States and Territories. Some of those submissions are very interesting, and the fact that 65—or more than one quarter—of them come from New South Wales councils gives an indication of the concern about cost shifting in this State. Those 65 submissions represent more than one-third of the 172 local councils in New South Wales and they contain some common themes. Put simply, councils are fed up with the burden of unfunded mandates and the allocation of additional functions and responsibilities placed upon them by other tiers of government—mainly the New South Wales State Government. Lgov NSW—which is the new name of the Local Government and Shires Associations of New South Wales—made an interesting submission to the inquiry, and I commend the organisation for the content of its submission. In its introduction, Lgov stated:

That is a fair statement, which is repeated in one form or another in all the submissions I have examined so far. A medium-sized North Coast council with an excellent track record stated in its submission to the inquiry that its ratepayers are expected to contribute about $1.6 million annually so that the council can comply with legislative requirements and additional responsibilities either imposed by or passed down from higher levels of government. The general manager of that council pointed out that $1.6 million from a total annual budget of $24.5 million represented some 6 per cent of the council's budget. It is a big ask to expect the council to then set its own works priorities. The submissions were received from councils ranging from the smallest to the largest in the State. A small council in the north-west of the State with just over 3,000 residents stated:

A major metropolitan Sydney Council with almost 64,000 residents stated:

All the submissions list concerns about the extent of cost shifting from both the State and Federal governments to local government, but the overwhelming concern is about the actions of this State Labor Government. The House of Representatives committee is sitting in Canberra today and tomorrow and will then travel around the country taking evidence. I hope that the inquiry will formulate some sensible recommendations aimed at easing the burden on local government.

Just today I read some material from a coastal council informing a developer of what requirements he must comply with as part of a development application process. Of the 40 matters listed, just under half were required because of the policies of this State Government. Five were the result of Federal Government policies and programs. This becomes a de facto cost shift to local government because councils are expected to process and assess the documentation and to implement and regulate the policies. That is just one example of cost shifting and unfunded mandates. The submissions to the Federal inquiry contain hundreds of such examples, and I urge honourable members to acquaint themselves with those submissions. The Coalition has already announced the first stage of our response to the unfunded mandates issue in the form of a contract with councils. That concept has been welcomed by the councils that I have met over the past two months because it will require a Coalition government to negotiate with, and better inform, councils prior to the implementation of programs or policies. [Time expired.]

THREATENED SPECIES PROTECTION

The Hon. IAN COHEN [9.26 p.m.]: This week is National Threatened Species Week and 7 September is National Threatened Species Day. This offers a good opportunity to talk about Chaelundi State Forest in northern New South Wales. Eleven years ago today a precedent-setting legal case was being heard in the Land and Environment Court. At the same time conservationists were blocking logging from proceeding in the old-growth forest of Chaelundi. It was a desperate and dangerous forest blockade. The Chaelundi forest was declared by the Land and Environment Court judge to be a veritable arboreal zoo. It is unbelievably rich in wildlife and magnificent old growth and is home to many species of animals in danger of extinction including koalas, masked owls, spotted tail quolls and yellow-bellied gliders. For this reason I am incredulous that State Forests of New South Wales has scheduled part of the Chaelundi old growth for logging later this year.

In 1998 expert panels of scientists commissioned by the New South Wales and Federal governments identified the minimum area of habitat that must be protected for populations of threatened animals to survive. They recommended the inclusion of sufficient habitat in reserves for: 1,224 breeding pairs of masked owls yet only enough habitat for one-fifth of that number has been protected; 3,781 breeding females of spotted tail quolls but sufficient habitat for less than one-fifth of them is reserved; and 9,240 breeding pairs of yellow-bellied gliders in three discrete populations yet sufficient habitat for less than one-fifth of that number has been protected. At least 4,000 hectares of undisturbed contiguous forest should be protected for each koala population to ensure the protection of a minimum population of at least 500. Corridors are required to link smaller isolated populations to bigger populations in order to prevent local extinction. However, sufficient habitat has not been protected to meet these requirements.

Australia has an abysmal record of species extinction. More mammals have become extinct in Australia over the past 200 years than in any other country in the world. In the forests of New South Wales we continue to destroy the homes and therefore jeopardise the survival of our unique Australian animals. They have lived here since time immemorial—a long time before we arrived—and they surely have a right to exist too. On behalf of the endangered species of New South Wales I call upon the New South Wales Government to protect additional areas of forest and woodland in national parks and in Chaelundi to avoid the extinction of the masked owl, yellow-bellied glider, spotted tail quoll, koala and other endangered species. Those species are Australians like us and they are losing their homes. We humans should not take everything for ourselves: We should leave enough for other species to ensure that they do not become extinct.

Protecting ancient forests will benefit humans as well as the species that live in them. The forests are the lungs of our planet: they maintain stability of climate, protect water catchments ensuring clean drinking water as well as protecting from floods and droughts, and they contain the gene pool that holds the foods, medicines and industrial products of the future. If only we humans would think beyond our own narrow, immediate interests and include the other species in our concerns, this would benefit us as much as it would them. We are all strands in the same web of life. If humans allow these creatures to disappear, the web becomes frayed and tattered. I put it to the House that without these wonderful creatures humans will die of a great loneliness of spirit. It is the job of this Parliament to protect these critical habitats and species. We know what must be done. All that is missing is the political will. Extinction? It is the choice of this House.

CONTEMPT OF COURT

The Hon. JOHN HATZISTERGOS [9.29 p.m.]: On Tuesday 20 August I attended a lecture by Justice Margaret Marshall, Chief Justice of the Supreme Judicial Court of the Commonwealth, Massachusetts. The lecture was part of the Distinguished Lecture Series conducted by the University of Sydney as part of its sesquicentenary celebrations. It was entitled "Dangerous talk, Dangerous Silence: Free Speech Judicial Independence, and the Rule of Law".

In recounting American experience Chief Justice Marshall referred to the United States case of Bridges v California, which largely defined modern United States law on the contempt of court. It was held in that case that no considerations of disrespect for the judiciary or disruption of the judicial process could justify censorship unless the comments presented a clear and present danger of substantially distorting the administration of justice. According to that case, the assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the characteristics of American public opinion. Her Honour went on to state from her own experience as follows:

Freedom to criticise judges and their decisions, save for those cases of real and imminent danger, is a necessary condition of judicial independence. This is particularly true, I think, for those pluralistic democracies in which judges hold office for life, or for a very long time during good behaviour, with virtually no check on their power save an unwieldy impeachment process. In the context of the United States one scholar has termed this the most extreme form of judicial independence. The power vested in judges in such circumstances can hardly be underestimated. It is near absolute. The only viable defence available to the people against abuses of such formidable judicial power is the public accountability of judges.

She then went on to state:

By placing the onus of upholding the judiciary's integrity on the muzzled populace the crime of scandalising the court gets it exactly backward: the burden of accountability falls most probably on a transparent judiciary.

Referring then to circumstances in Australia, Her Honour suggested that our law could be more tolerant of judicial criticism. The view that Her Honour expressed should have some resonance for all of us. In Australia liability for sub judice contempt is governed by common law rather than by legislation. In broad terms the test of a breach is whether the publication has a real and definite tendency as a matter of practical reality to interfere with the due administration of justice in specific legal proceedings or the publication prejudges the issues to be decided in the proceedings.

A practical demonstration of the potential impact of this restrictive test was recently drawn to attention when Commissioner Cole, QC, in the Royal Commission into the Building Industry, said that a leaflet distributed by the union that stated "This royal commission is being pushed by a hostile Howard Government, which is trying to abolish workers rights" bordered on contempt. Rhetorically, one must ask : Why cannot such comments be made, why cannot they be responded to and why cannot the public be the judge of the validity or otherwise of the statements made?

Lack of codification of the law of sub judice contempt and the restrictive approach of the Commonwealth have been the subject of large volumes of reports but principally by law reform commissions both in Australia and overseas. Interestingly, a draft bill entitled Crimes (Protection of the Administration of Justice) Amendment Bill 1993 of the Commonwealth was prepared and circulated for comment. It was never introduced. In 1994 the Irish Law Reform Commission published a report No. 47 dealing with contempt, relying heavily on the recommendations of both the English Phillimore Committee and the Australian Law Reform Commission. However, it has not resulted in legislation.

In July 2000 our own New South Wales Law Reform Commission published a discussion paper on the subject. That paper emphasised the desirability for uniformity of contempt laws, since without it the media would be forced to follow the law of the most restrictive jurisdiction when transmitting across State borders. The report criticised the tendency test on the grounds that it was imprecise and too broad. It suggested an alternative test adopted in the United Kingdom and favoured by the New Zealand and Canadian courts. This was basically a test that a publication having substantial risk of interference or prejudice with particular legal proceedings would amount to contempt.

Referring particularly to the case of publications influencing judicial officers, the Law Reform Commission decided by majority that concern about influence on judicial officers is essentially speculative and supports the general assumption that judicial officers are not susceptible to any significant degree of influence by media publicity. It suggested that the risk of influence on judicial officers ought not be a ground of liability for sub judice contempt. This tentative view does not go as far as Chief Justice Marshall has suggested was appropriate. However, the experiences that were recounted by Her Honour in her lecture suggested that the consequences of exposing the judiciary to greater criticism, even if it was in some cases informed, has not affected the faith of United States citizens in the judiciary. Rather, it has made it stronger.

WORLD WAR II COMMEMORATION DAY

The Hon. CHARLIE LYNN [9.34 p.m.]: Tonight I support the call by the Federal Labor Leader, Simon Crean, for a Battle for Australia Day as an annual commemoration of the defence of our nation during World War II. I also support Mr Crean's call for national debate on the issue. I would argue against the notion that it be called Kokoda Day because I think it would provide too narrow a focus on the spirit of the commemoration. Kokoda was certainly a defining moment for us. It was during this campaign that the Japanese thrust towards Port Moresby was finally turned. Australia was finally spared from the threat of invasion when the Japanese received their orders to withdraw from their positions on Iorabaiwa Ridge to a beachhead at Buna and Gona.

Kokoda has certainly been a neglected shrine for the past 60 years. However, the recent opening of the Isurava Memorial and the commitment by the Sydney Swans to dedicate a match at Stadium Australia to the spirit of Kokoda will ensure that the campaign is finally honoured in an appropriate manner. Prior to July 1942 there were many battles in the air and on the sea before the Japanese established a beachhead at Buna and Gona in preparation for their advance over the Owen Stanley Range towards Port Moresby. I refer to the great naval battles of Coral Sea and Midway.

The desperate air-sea-land battle of Milne Bay was fought at the same time the Japanese launched their attack at Isurava as part of their strategy to capture Port Moresby. But it was at Milne Bay that the hitherto undefeated Japanese forces suffered their first defeat of World War II. In the islands of the South West Pacific and throughout the north-western area of New Guinea our commandos were in action and our coastwatchers were risking their lives reporting Japanese air and sea movements.

After Kokoda and Milne Bay there were battles at Lae, Sanananda, Finchafen and many other places as our soldiers, sailors and airmen fought to drive the Japanese from our shores. All these brave hearts, these gallant servicemen and servicewomen, made significant contributions to our eventual victory on 15 August 1945, when Japan finally surrendered. A Battle for Australia Day would, therefore, be a more appropriate title because it recognises all those who served—the front-line troops, the coastwatchers, the logistic and administrative support personnel, the doctors and nurses, the home guard, the cooks, the bottle-washers, the toothless and the ruthless—all heroes in their own way.

Such a day is important for our national psyche because it will cause us to stop and reflect on the legacy left to us—our freedom! It will help create an awareness of our military history, which will hopefully become a compulsory part of our primary and secondary educational curriculum. Patrick Lindsay, author of The Spirit of Kokoda—Then and Now referred to the words of a World War II veteran, William Manchester, who wrote:

Lindsay went on to write:

A few days ago I spoke with a senior Papua New Guinea Government Minister who expressed concern that our two countries had grown apart and did not fully understand each other. He felt that the initiative by the Sydney Swans to honour the sixtieth anniversary of the Kokoda campaign with a match at Stadium Australia was a very positive step because it provides an opportunity for us to bond. I thought they were great words, because we are brothers. We are geographical neighbours, and always will be.

We have a shared history and a shared adversity. We are both endowed with great natural wealth. We have rich and exciting indigenous cultures. We are blessed with unlimited opportunity as Pacific Rim nations. But we also have a great debt to our Australian and Papua New Guinea veterans who put their lives on the line in defence of the freedom we enjoy today. We must never forget this, and a national Battle for Australia Day commemoration will provide an opportunity for us to pause, reflect, and pay tribute to those who made it possible. I commend Simon Crean's initiative to this House.

POLITICAL PARTIES REGISTRATION

The Hon. PETER BREEN [9.38 p.m.]: Tonight I would like to alert the House to a decision of Acting Justice Burchett in the Supreme Court regarding the powers of the Electoral Commissioner to refuse to register political parties under the Parliamentary Electorates and Elections Act. The 1999 amendments to the Act provide that political parties must have 750 members, and each member must sign a membership form to register the party. Registration is to take effect 12 months after the commissioner accepts the formal requirements of the legislation.

The question for Justice Burchett was whether a party named Save Our Suburbs qualified for registration. Although 750 members of the party had signed a membership form, the Electoral Commissioner was not satisfied that the formal requirements of the Act had been met. The commissioner made this decision on the basis that 75 per cent of the members of the party did not respond to a sample mailing in which members were asked to sign a form and return it to the commissioner in a reply-paid envelope. Justice Burchett ruled that the commissioner exceeded his authority under the Act and ordered registration of the Save Our Suburbs Party.

Unfortunately, the court did not make a ruling as to whether the commissioner can register a party retrospectively, which would allow Save Our Suburbs to field candidates at the March 2003 election. If the commissioner does have the power and Save Our Suburbs is registered, six other parties presently standing in line for registration will also get a guernsey for the March 2003 election. That will be an unfortunate consequence of Justice Burchett's decision because each of the six parties may be linked in some corrupt way to three other parties already registered under the Parliamentary Electorates and Elections Act. Those three parties are the Outdoor Recreation Party, the Horseriders Party and the Four Wheel Drive Party.

The six additional parties that may be corruptly linked to those parties are the Reconciliation Party, the Free Education Party, the Workers Party, the Environment Party, the Anglers Party and a party called Stop the Greenies. In other words, nine parties could be working together to secure a seat in this House and only three of those parties have satisfied the perfectly reasonable requirements of the Electoral Commissioner to demonstrate their bona fides to the people of New South Wales. Honourable members will be aware of the 1999 electoral rorts when more than 80 parties fielded candidates for this House in the tablecloth ballot paper. Many parties were not legitimately constituted in that election; they were simply a fraud committed on the people of New South Wales in order to channel votes to a few individuals.

That fraud was evident in the names of the parties, which were a ruse designed to give voters the impression that the names reflected the ideology of the parties. The intention of the people behind those parties was to draw support from votes at opposite ends of the political spectrum. I can demonstrate my point with the nine parties I referred to earlier. To the left of centre we have the Reconciliation Party, the Free Education Party, the Workers Party and the Environment Party. To the right of centre we have the Outdoor Recreation Party, the Horseriders Party, the Four Wheel Drive Party, the Anglers Party and Stop The Greenies. The people behind those parties are so brazen they believe they can get two seats in this House from both ends of the political spectrum. Alternatively, they hope to draw votes from legitimate parties using spoiling tactics.

This Parliament set out in 1999 to remedy the rorts of the tablecloth ballot paper, but the decision of Justice Burchett to direct the Electoral Commissioner to register Save Our Suburbs as a political party effectively means that the reforms have been circumvented. Grouping together large numbers of parties in joint tickets for the March 2003 upper House ballot paper will mean the tablecloth ballot paper and its rorts have not been addressed. I urge the Government to revisit the legislation and take whatever steps are necessary to determine the legitimacy of parties seeking to field candidates at the March 2003 election.

If any parties I have mentioned are fraudulent, or if the parties are corruptly linked as I have suggested, the appropriate course is for the Government to refer the matter to the Independent Commission Against Corruption. Any rorting of the electoral process is a fraud on the people of New South Wales and brings discredit on the democratic system of government. Several parties have legitimate links to other parties, and field joint tickets in an open and transparent way. The obvious examples are the Labor Party-Country Labor ticket and the Liberal Party-National Party ticket. Few people would say this arrangement is misleading or deceptive in the way, for example, that reconciliation and environment groups are linked as I have indicated.

Indeed, I am informed that Justice Burchett made certain observations about the membership of the Reconciliation Party which indicated he believed it is a party intended to represent indigenous people. Similarly, the Environment Party might be expected to represent people interested in protecting the natural environment. If the Reconciliation Party includes one indigenous person, and if one legitimate environmentalist is to be found in the Environment Party, I will convey my deep and respectful apology to the Hon. Malcolm Jones.

TAFE HIGHER EDUCATION CONTRIBUTION SCHEME FEES

The Hon. RON DYER [9.43 p.m.]: When speaking on the adjournment on Tuesday 4 June last I expressed concern regarding the apparent intention of the Federal Minister for Education, Science and Training to require TAFE students to pay Higher Education Contribution Scheme [HECS] style fees. I noted then that Dr Nelson had released a ministerial discussion paper, "Higher Education at the Crossroads", which suggested that HECS could be extended to vocational education and training [VET] courses. I noted that if this were to happen approximately 700,000 TAFE students around Australia could be affected, and that instead of paying TAFE fees ranging from $300 to $690 a year, they would have to meet HECS charges of between $3,500 and $6,000.

My words seem to have been prophetic in that in a further higher education discussion paper released on 19 August this year by Dr Nelson the introduction of HECS style loans for TAFE students to go on to gain a degree at a university was canvassed. My colleague the New South Wales Minister for Education and Training, the Hon. John Watkins, promptly responded by stating that TAFE students who, as I have said, paid between $300 and $690 a year, would be forced to pay up to $6,000 under the Nelson proposal. Mr Watkins said—and I agree—that we should be making it easier, not harder, for young people to get an education. In my speech earlier this year I particularly noted that, especially in regional areas, TAFE makes a vital difference to the employment prospects of many people, including very needy people in our community.

If the prospect of charging at HECS levels for TAFE courses becomes a reality, the skills base and the economy of rural and regional New South Wales will be damaged. Dr Nelson appears to centre his concern on some students who initially study at TAFE and transfer to university after a year or two and then receive credit for their TAFE courses. Dr Nelson is reported in the Sydney Morning Herald of 29 August as asking, "Is this in fact a way for some students to receive a backdoor university degree on the cheap?" In regard to Dr Nelson's reported comment, I note that of the 220,000 students who enrolled in universities in 2001 only just over 5,000 students were given exemptions at universities for their TAFE studies. I would also like to express a more general concern regarding the direction of Dr Nelson's apparent higher education policy.

Writing in the Sydney Morning Herald on 2 September, Associate Professor Robert Manne of La Trobe University notes that one Nelson discussion paper suggests that a new hierarchical system should be created for Australian universities. Under this system some universities would teach only undergraduate courses; others would combine undergraduate and postgraduate courses, and only the best universities under this system would be able to enrol students for doctoral research. Essentially, universities would be divided into high-prestige, research-driven institutions and low-prestige institutions committed almost exclusively to teaching and very basic research. In other words, there would be elite universities, probably the group of eight, at the apex of the higher education system and other less expensive and less prestigious universities at the base of the system.

My main concern is that, although Dr Nelson concedes that in the future a higher level of funding for Australian universities will be necessary, he has made it clear that while the Coalition remains in power in Canberra such new funds will come from students and their parents, either from fee deregulation or a voucher system. It seems inevitable that if Dr Nelson's policies are put into effect by the Howard Government prestige universities will do well and others will enter a process of decline. This does not seem to me to be the best means of promoting the interests of higher education and the future of the great mass of Australian university students.

PILLIGA AND GOONOO STATE FORESTS MINING EXPLORATION

Ms LEE RHIANNON [9.48 p.m.]: I recently had the opportunity to visit western New South Wales, meeting a range of people and organisations committed to positive environmental outcomes and social justice for the people of this region. The Pilliga State Forest and Goonoo State Forest would be well known to many members as two of the jewels in western New South Wales. These two regions include the largest temperate woodland forests remaining in New South Wales. The Western Conservation Alliance has put forward new reserve proposals for both the Goonoo and the Pilliga. On behalf of the Greens I congratulate the alliance and its member organisations on their very detailed work in bringing forward this reserve proposal. Goonoo and Pilliga urgently need protection. This is a top priority of the Greens.

Goonoo and Pilliga are under threat from natural gas exploration and in various other ways. The gas exploration involves the clearing of larger areas of woodland, a network of wide seismic trails that criss-cross the landscape, and pumping water with a dangerously high saline and potentially toxic content to holding dams at the surface. Eastern Star Gas, Great Southern Petroleum and Eastern Energy have been granted licences to look for gas in the western woodlands. I understand that last week the Environmental Defender's Office wrote to the Minister for Mineral Resources seeking a halt to mining exploration activities by these companies until an environmental impact statement is completed, environmental assessment of the impacts on threatened species is undertaken, and a threatened species impact assessment is completed. Conservationists have raised many concerns about the environmental effects of gas exploration in the Pilliga. David Paull from the Western Conservation Alliance has stated:

Current exploration activities in the Pilliga have highlighted ongoing problems connected with the storage of wastewater on site. This water is highly sodic and contamination of surface vegetation and water systems has already occurred.

Conservationists have raised concerns over this issue for some time but as yet no action has been implemented by the Department of Mineral Resources. The Greens support the call of the environmental groups for environmental accountability in the western woodlands. Conservationists have raised many concerns about the environmental impacts of gas exploration in the Pilliga. We are calling for a halt to current exploration activities pending the completion of an adequate environmental impact assessment. [Time expired.]

EDUCATION

The Hon. HENRY TSANG (Parliamentary Secretary) [9.51 p.m.]: Madam President, I ask for your tolerance and the tolerance of other members in speaking on a subject that members know I hold to be highly important—education. I will never stop expounding the virtues of education, including higher education. Education is something we all benefit from, both individually and collectively. The benefits of a well-educated community are immeasurable. I am glad to have had considerable and varied involvement with quite a few universities in my lifetime. Having attended the University of New South Wales and the University of Sydney, I have also had the pleasure of making a modest contribution to several other institutions, namely the University of Technology Sydney [UTS], Charles Sturt University, Macquarie University and the University of Western Sydney.

As a fellow of UTS I have been involved in corporate support for the university over the last decade. The former vice-chancellor of the university, Professor Tony Blake, retired from his post on 26 July. He made a magnificent contribution to the university. Building on the work of his predecessor, my good friend Professor Gus Guthrie, UTS has gone from strength to strength. UTS is well recognised as a leader in innovative education services with a very diverse student population. Ethnically, over a third of its students come from a non-English speaking background. Its courses are well known to cater to mature-age students and those already in employment. Its "sandwich course" with work experience factored in has been adopted in many other places. In fact, my son Derwent is a fifth year student there studying for an architecture degree. My staffer was also a graduate of the university.

I had the great pleasure to visit the city campus and to tour the newly refurbished Building 10 in Jones Street across from the university. The building is probably better remembered as the old Fairfax building, and later the headquarters of the Sydney Organising Committee for the Olympic Games. It has been refurbished into an impressive state-of-the-art teaching, research and administrative complex. An atrium through its centre allows natural light to flood six levels into the heart of the building, and internal glass walls add to the feeling of open space. The refurbishment marks the first stage in the transformation of the campus into a dynamic and exciting place right in the heart of the city. It is fitting that Building 10 was officially opened by Her Excellency the Governor, Professor Marie Bashir. Attending the ceremony was one of Professor Blake's last duties as vice-chancellor.

I pay tribute to Professor Blake's leadership and I am pleased to note that the council of the university hosted a dinner in honour of Professor Blake and his wife Marge at Parliament House in August. The occasion provided an opportunity for his colleagues and many friends to pay tribute to Tony and Marge Blake's contribution to UTS. It was an opportunity also to express the great affection with which they are held by those who know them. In March this year the Chancellor, Sir Gerard Brennan, announced that Professor Blake would be succeeded by Professor Ross Milbourne, currently the Deputy Vice-Chancellor. Professor Milbourne is a distinguished scholar, having published widely in the field of mathematical modelling and statistical testing of macroeconomic theories. I look forward to his investiture and to working with him in making UTS an even greater education institution.

Motion agreed to.

The House adjourned at 9.55 p.m.
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