Full Day Hansard Transcript (Legislative Council, 5 December 2002, Corrected Copy)

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

The President offered the Prayers.

Motion by the Hon. John Della Bosca, on behalf of the Hon. Michael Egan, agreed to:

That on Thursday 5 December 2002 Government Business take precedence of General Business.

Motion by the Hon. Duncan Gay agreed to:

1. That, under Standing Order 18, there be laid on the table of the House by 5.00 p.m. on Tuesday 10 December 2002 and made public without restricted access all documents not previously released in the possession, custody and power of the Treasurer, the Office of Financial Management and the New South Wales Treasury relating to Treasury estimates of election commitments, including:

(a) Treasury's costing of the Coalition's Water Tanks policy,
(b) Treasury's costing of the Coalition's Grafton bridge promise,
(c) Treasury's costing of the Coalition's Seaforth Roundabout promise,
(d) Treasury's costing of the Coalition's country public libraries promise,
(e) Treasury's costing of Government election promises,
(f) Treasury's forward estimates for the Department of Health,
(g) Treasury's forward estimates for the Department of Education,
(h) Treasury's forward estimates for the Department of Community Services,
(i) Treasury's forward estimates for the Police Department,
(j) Treasury's forward estimates for the Department of Housing,
(k) Treasury's forward estimates for the Department of Transport,
(l) Treasury's forward estimates for the Roads and Traffic Authority,
(m) Treasury's forward estimates for the Department of Public Works,
(n) Treasury's costing of the Governments' water tank rebate commitment.

2. That an indexed list of all documents tabled under this resolution be prepared showing the date of creation of the document, a description of the document and the author of the document.

3. That anything required to be laid before the House by this resolution may be lodged with the Clerk of the House if the House is not sitting, and unless privilege is claimed, is deemed for all purposes to have been presented to or laid before the House and published by authority of the House.

4. Where a document required to be tabled under this order is considered to be privileged and should not be made public or tabled:

(a) a return is to be prepared and tabled showing the date of creation of the document, a description of the document, the author of the document and reasons for the claim of privilege,

(b) the documents are to be delivered to the Clerk of the House by the date and time required in paragraph 1 and:

(i) made available only to members of the Legislative Council,

(ii) not published or copied without an order of the House.

5. (a) Where any member of the House, by communication in writing to the Clerk, disputes the validity of a claim of privilege in relation to a particular document, the Clerk is authorised to release the disputed document to an independent legal arbiter, for evaluation and report within five days as to the validity of the claim.

(b) The independent legal arbiter is to be appointed by the President and must be a Queen's Counsel, a Senior Counsel or a retired Supreme Court Judge.

(c) A report from the independent legal arbiter is to be lodged with the Clerk of the House, and:
(i) made available only to members of the Legislative Council,

(ii) not published or copied without an order of the House.

Motion by the Hon. Richard Jones agreed to:

1. That, under Standing Order 18, there be laid on the table of the House by 5.00 p.m. on Tuesday 10 December 2002 and made public without restricted access:

(a) all documents in the possession, custody and power of the Minister for Health for the years 2000, 2001 and 2002 in relation to the development and establishment of the Committee now known as the Health Claims and Consumer Protection Advisory Committee, announced by the Minister for Health on 31 October 2002,

(b) all documents in the possession, custody and power of the Minister for Health in relation to the development of the Draft Terms of Reference for the Health Claims and Consumer Protection Advisory Committee,

(c) all correspondence between NSW Health and Committee members, advisors and the Committee Secretariat including:

(i) Professor John Dwyer
(ii) Dr Greg Stewart,
(iii) Karen Crawshaw,
(iv) John Lumby,
(v) Maureen Robinson,
(vi) Dr Ian O'Rourke,
(vii) Professor Felix Wong,
(viii) Sarah Crawford,
(ix) Dr John Eden,
(x) Si Banks,
(xi) Brian Given,
(xii) Rose Webb,
(xiii) Rusty Priest,
(ixx) Norah McGuire,
(xx) Dr Sharon Miskell,
(xxi) Simon Loveday,
(xxii) Val Johanson,
(xxiii) Karen Bridgman,
(xxiv) AACMA,
(xxv) Mary Crum,
(xxvi) Cheryl Freeman, and
(xxvii) Peter Bowditch.

2. That an indexed list of all documents tabled under this resolution be prepared showing the date of creation of the document, a description of the document and the author of the document.

3. That anything required to be laid before the House by this resolution may be lodged with the Clerk of the House if the House is not sitting, and unless privilege is claimed, is deemed for all purposes to have been presented to or laid before the House and published by authority of the House.

4. Where a document required to be tabled under this order is considered to be privileged and should not be made public or tabled:

(a) a return is to be prepared and tabled showing the date of creation of the document, a description of the document, the author of the document and reasons for the claim of privilege,

(b) the documents are to be delivered to the Clerk of the House by the date and time required in paragraph 1 and:

(i) made available only to members of the Legislative Council,

(ii) not published or copied without an order of the House.

5. (a) Where any member of the House, by communication in writing to the Clerk, disputes the validity of a claim of privilege in relation to a particular document, the Clerk is authorised to release the disputed document to an independent legal arbiter, for evaluation and report within 5 days as to the validity of the claim.

(b) The independent legal arbiter is to be appointed by the President and must be a Queen's Counsel, a Senior Counsel or a retired Supreme Court Judge.

(c) A report from the independent legal arbiter is to be lodged with the Clerk of the House, and:

(i) made available only to members of the Legislative Council,

(ii) not published or copied without an order of the House.

Motion by the Hon. John Della Bosca, on behalf of the Hon. Michael Egan, agreed to:

That:

(1) this House directs the President to join with the Speaker to make arrangements for the appointment of Mr Ian Dickson as Parliamentary Ethics Adviser, on a part-time basis, on such terms and conditions as may be agreed from the period beginning 13 December 2002,

(2) the function of the Parliamentary Ethics Adviser shall be to advise any member of Parliament, when asked to do so by that member, on ethical issues concerning the exercise of his or her role as a member of Parliament (including the use of entitlements and potential conflicts of interest),

(3) the Parliamentary Ethics Adviser is to be guided in giving this advice by any Code of Conduct or other guidelines adopted by the House (whether pursuant to the Independent Commission Against Corruption Act or otherwise),

(4) the Parliamentary Ethics Adviser's role does not include the giving of legal advice,

(5) the Parliamentary Ethics Adviser shall be required to keep records of advice given and the factual information upon which it is based,

(6) the Parliamentary Ethics Adviser shall be under a duty to maintain the confidentiality of information provided to him in that role and the advice given, but that the Parliamentary Ethics Adviser may make advice public if the member who requested the advice gives permission for it to be made public,

(7) this House shall only call for the production of records of the Parliamentary Ethics Adviser if the member to which the records relate has sought to rely on the advice of the Parliamentary Ethics Adviser or has given permission for the records to be produced to the House,

(8) the Parliamentary Ethics Adviser is to meet with the Standing Ethics Committee of each House annually,

(9) the Parliamentary Ethics Adviser shall be required to report to the Parliament prior to the end of his annual term on the number of ethical matters raised with him, the number of members who sought his advice, the amount of time spent in the course of his duties and the number of times advice was given,

(10) the Parliamentary Ethics Adviser may report to the Parliament from time to time on any problems arising from the determinations of the Parliamentary Remuneration Tribunal that have given rise to requests for ethics advice and proposals to address these problems.

Message forwarded to the Legislative Assembly requesting it to pass a similar resolution.

The Hon. Michael Costa tabled the following paper:

Annual Reports (Statutory Bodies) Act 1984—Report of Motor Vehicle Repair Industry Council for year ended 30 June 2002.

Ordered to be printed.

The Hon. Ron Dyer, as Chairman, tabled report No. 23 entitled, "Report on the Proposed State Arms Bill", dated December 2002, together with transcripts of evidence, submissions, tabled documents and correspondence.

Report ordered to be printed.

The Hon. Helen Sham-Ho, as Chairman, tabled report No. 22, entitled "Report on Review of the Members' Code of Conduct", dated December 2002, together with transcripts of evidence, submissions, tabled documents and correspondence.

Report ordered to be printed.

The Hon. HELEN SHAM-HO [11.07 a.m.], by leave: The community places a high trust in members of Parliament and expects of them high standards of ethical behaviour. The adoption of a code of conduct by the Legislative Council and the Legislative Assembly in 1988 was an important milestone. This report outlines the background to the code of conduct, including the relationship between the code and the Independent Commission Against Corruption [ICAC] Act 1988. The report also discusses developments since the adoption of the code, including observations about the code made by the Independent Commission Against Corruption, determinations made by the Parliamentary Remuneration Tribunal [PRT], the appointment of a Parliamentary Ethics Adviser, and developments in other parliaments. Reference is also made to the review of the code by the Legislative Assembly's Standing Ethics Committee and to a recent request from the Legislative Assembly for the ICAC to review the adequacy of the code in relation to paid consultancies and advocacy.

The Standing Committee on Parliamentary Privilege and Ethics notes the strict legal context in which the code operates and the consequent need for it to be clear and precise. The committee recommends that, as the code appears to be satisfactory for its intended purpose, no change to the code is required at this time. The committee highlights a number of important issues that have been raised by the ICAC and others in recent years in relation to members' ethics. The committee suggests a number of mechanisms by which these issues can be addressed, including education seminars for new members and other forms of ethics education, clarification of PRT determinations and the issuing of guidelines by the Presiding Officers as to the use of members' entitlements. The committee pointed out the desirability of holding education seminars, drawing attention to the fact that it is unacceptable for a member to use his or her position as a member of Parliament, or the influence deriving from that position, for personal financial gain. I commend the committee secretariat for their work on this report. Finally, I thank my fellow committee members for their constructive approach to this report and for their work on the Standing Committee on Parliamentary Privilege and Ethics.

The Hon. Richard Jones, as Chairman, tabled report No. 18, entitled "Inquiry into the M5 East Tunnel", dated December 2002, together with transcripts of evidence, submissions, tabled documents and correspondence.

Report ordered to be printed.

The Hon. RICHARD JONES [11.10 a.m.], by leave: General Purpose Standing Committee No. 5 should not have had to conduct this inquiry. There is no doubt that there are serious health impacts both inside the tunnel, which is self-evident, and outside the tunnel. It is quite clear that the Roads and Traffic Authority [RTA] must take action to clear up the mess within that tunnel. It is unsafe for employees of both the RTA and Baulderstone Hornibrook Pty Ltd and it is certainly unsafe for people going through the tunnel several times a day. The particulate level to which people travelling through the tunnel are exposed is high indeed—it goes up to 2,000 parts per cubic metre. I am referring to PM1 and PM2.5—the smallest material that goes deep down into the lungs and is extremely dangerous to people's health. It is far more dangerous than PM10, which gets caught in the upper respiratory tract.

Each year between 1,000 and 2,000 people die from particulate matter inhalation in the city of Sydney. The Department of Health, the Environment Protection Authority, the Roads and Traffic Authority and the Department of Planning, with the Minister's co-operation, should urgently do something about this problem. The committee received evidence from a number of distinguished people in the general community and in the scientific community about the impact of PM10, PM2.5 and PM1 in the tunnel. We need to take action to develop a new standard for PM1, the most dangerous of all particulate matter. I hope that the Government accepts that recommendation at the very least.

We require mandatory testing of all diesel vehicles that are three or more years old because, as the report indicates, they cause about 80 per cent of particulate matter pollution, apart from bushfires. If the RTA were to ensure compulsory testing of smoky vehicles every year at the time of registration that would have a tremendous impact not only in the tunnel but throughout the city of Sydney and it would also save a considerable number of lives. I ask the Government to act on important air quality issues in the city of Sydney, in particular, in this tunnel and, more generally, in relation to diesel vehicle testing. Diesel vehicles should not be registered unless they do not emit more than a given amount of particulate matter.

I thank the hardworking committee members on this inquiry and on the other 18 inquiries that have been conducted by this committee. In particular, I thank the Hon. Jan Burnswoods, the Hon. Amanda Fazio, the Hon. John Jobling, the Hon. Malcolm Jones, the Hon. Peter Primrose and the Hon. John Ryan. The Hon. John Ryan, an extremely hardworking member of this committee, has been acknowledged by others for responding to people's inquiries. I hope that one day, when there is a change of government—as there inevitably will be—Opposition members realise his talents and make him a Minister.

I also thank the Director, Steven Reynolds; the Senior Project Officer, John Young; the Committee Officer, Ashley Nguyen; and the committee secretariat. They worked extremely hard given the short time frame within which the committee had to produce its final report. I hope that the Government acts on this urgent and important issue—the health of residents living in the vicinity of the M5 East stack, which, unfortunately and incredibly, was built in a residential area. That political decision, which was made under pressure, is causing severe health problems not only for those residents but also for employees of the RTA and Baulderstone Hornibrook and other people travelling through the tunnel. These problems must be fixed. Tunnel filtration must be provided as soon as possible for the benefit of all those who use the tunnel and for residents in the vicinity of the stack.

The Hon. John Ryan: And all future tunnels.

The Hon. RICHARD JONES: Tunnel filtration must be provided for all future tunnels in Sydney, including the cross-city tunnel, the Lane Cove tunnel and for existing tunnels. We must grasp the nettle. Yesterday the RTA sent the committee evidence that indicates it is not aware of how many tunnels are filtered in Japan. The RTA examined only one of the 42 tunnels that are filtered in Japan. It is appalling that the RTA, which is totally oblivious to that fact, does not know what is going on overseas. The RTA claims to have employed world's best practice, but this unfiltered tunnel clearly demonstrates that it is world's worst practice. The RTA needs a big shake-up. I hope that that happens after the next election. I ask the Minister to act on behalf of the people of Sydney. If he does not act, I am sure there will be repercussions at the next election.

Petition praying that alcoholic beverage sales be restricted to existing outlets, that opening hours be reduced, and that warning labels be placed on all alcoholic beverage containers, received from Reverend the Hon. Fred Nile.

Petition calling for protection of the rights of farmers who wish to remain free from genetic engineering contamination, establishment of genetic-engineering-free zones, declaration of a freeze on the intentional release of new genetically engineered crops, and consultation with all farming groups, received from the Hon. Duncan Gay.

The Hon. MICHAEL GALLACHER (Leader of the Opposition) [11.17 a.m.]: I seek leave to move a motion to suspend standing orders to allow the presentation of an irregular petition from 943 citizens of New South Wales concerning crime in the Moorebank area and praying that the House ensure the Moorebank police station be upgraded to a fully functioning 24-hour police station.

Leave not granted.

Motion by the Hon. Michael Gallacher agreed to:

That standing and sessional orders be suspended to allow a motion to be moved forthwith that Private Member's Business item No. 108 outside the Order of Precedence, relating to a document entitled "WorkCover Fraud Investigation Manual", be called on forthwith.

Motion by the Hon. Michael Gallacher agreed to:

That Private Member's Business item No. 108 outside the Order of Precedence be called on forthwith.

The Hon. MICHAEL GALLACHER (Leader of the Opposition) [11.20 a.m.]: I move:

That this House:

(a) notes that the document entitled "WorkCover Fraud Investigation Manual" was provided to the General Purpose Standing Committee No. 1 as Attachment A to the questions taken on notice by the Hon. John Della Bosca, Special Minister of State and Minister for Industrial Relations, at the budget estimates hearing of the Minister's portfolios on 24 June 2002, and

(i) requested by the Minister to remain confidential,

(ii) not made public by the Committee under Standing Order 252,

(iii) tabled with the Committee's report to the House on 5 September 2002;

(b) orders the publication without restricted access of the following sections of the above document:

(i) "The role of the fraud investigator" on pages 3 to 5,

(ii) "Recent initiatives" on pages 6 and 7,

(iii) "WorkCover or a Police prosecution?" on pages 53 and 54,

(iv) "Main offences: legislation and penalties at a glance" on page 55, and

(v) "The Legal Role" on pages 63 to 76.

As this motion relates to our ongoing review of WorkCover and workers compensation in this State, it is necessary for me to raise these matters in the Legislative Council at this time. Hopefully, with the support of members on the crossbenches, the Opposition will be able to lift yet another layer of the veil of secrecy that seems to permeate the WorkCover Authority and, indeed, the Government's handling of every level of workers compensation in New South Wales. I am fully aware of the Government's position in relation to this debate. The Government is painting a very dark picture of the Opposition's desire to reveal key parts of the WorkCover Fraud Investigation Manual which would be of assistance to members of the public who are thinking about committing a fraud offence against or an exaggerated claim on the WorkCover scheme.

I state at the outset that that is completely and totally false. By requesting small sections of the manual the Opposition is seeking to give the Parliament, and therefore everyone involved in the workers compensation system, a greater understanding of the WorkCover Authority's attitude to fraud investigations. Government members believe that I am somehow interested in talking about matters that relate to ongoing police investigations and that the sections of the manual that I am seeking to have made unrestricted will be of benefit to people in the community who are doing the wrong thing not only by the scheme but, indeed, by the people of New South Wales. The allegation by Government members is completely false. They know that the allegation is false because I have in front of me the document that they have been pushing around the Legislative Council.

Government members do not want small sections of the WorkCover manual being made available because they will be incredibly embarrassing to the Government. They know that the attitude to WorkCover investigations in this State is not consistent with the expectations of employers or, indeed, the hardworking employees of this State. I recognise that certain sections of the manual that I have requested are covered by an in camera provision. In fact, the manual was provided to members of General Purpose Standing Committee No. 1 [GPSC1], which is chaired by Reverend the Hon. Fred Nile, as part of the investigation of WorkCover that Parliament entrusted to GPSC1.

With all due respect to members of GPSC1, I suspect that few members in the Chamber would have had the time to go through the manual, or the vast array of other material that was provided to us during the inquiry, in any great detail. However, I took the time to go through the manual, because I had requested it. I requested the manual because, as a former police officer, I was keen to see how WorkCover conducted its fraud investigations. Also, I wanted to ensure that the way WorkCover conducted its investigations was consistent with how I felt a criminal investigation should be conducted.

As honourable members would be aware, it has been my view—and it will always be my view—that there is no difference between a person who commits a fraud on the workers compensation scheme and a person who rips $100 out of an employer's till. It is a criminal offence the moment the person sets about the chain of events to put that fraudulent claim in place. The intent at the time is fraudulent and, therefore, in my view the claim should be investigated in a way that reflects that. I think, from recollection, members of the committee even thought that way, and the committee recommended that future reforms of the WorkCover scheme should consider the whole question of whether matters are proceeded with under the Crimes Act.

Be that as it may, there is a degree of sensitivity about what I can refer to in my speech without breaching the in camera provisions that are placed on the document. However, I can allude to the small number of pages in the manual that I have requested. If honourable members are so inclined and want to find out more, I am sure the Minister would be more than happy to provide them with copies of the pages that I have requested. If honourable members have doubts about what I have specifically requested, and if they are concerned that what I am seeking will somehow give people who are thinking about committing fraud the information they require to fulfil their intent to commit fraud, I suggest that they ask the Minister to provide a copy of the pages.

We will sit down in this Chamber, perhaps with ministerial staff, and look at the pages; we will not take them away and photocopy them. That would assure honourable members that what the Minister is saying is right or that what I am saying is right. Of course, if honourable members get an opportunity to examine the document they will see that what I am saying is true. What I have requested will not in any way undermine any ongoing, future or, indeed, past investigations into WorkCover matters. The first section of the manual I have requested relates to the role of the fraud investigator. That small section predominantly sets out in a form what newly enrolled WorkCover fraud investigators—the three or four that WorkCover employs in this State—must do when they turn up for work and how they are to conduct fraud investigations.

Fraud investigators would think it was fairly basic stuff. However, the section the Government does not want honourable members to see contains some fairly embarrassing admissions about the resources available to WorkCover investigators to fulfil their role. For the first time we have in written form an admission that WorkCover investigators are not as fully resourced as the Government would like us to believe. I am sure that employers, who are more than concerned about their ongoing increase in premiums and who are more than happy to talk to any one of the 301 inspectors who can turn up at their door on any given day wanting to talk about workplace safety and to ensure that the employer is doing the right thing by premiums would be interested to know the Government's attitude to fully resourcing WorkCover investigators to investigate fraud. One line in a very small paragraph is incredibly embarrassing to the WorkCover Authority and would be embarrassing to the Government and, for that reason, the Government does not want it made public.

After I brought the sentence to the Minister's attention the other day—he indicated to me that he had not read the document either—I am sure there would have been a look of absolute horror on his face when he and his staff went through the document to see exactly what I was looking at, because it well and truly stood out. Honourable members should not feel that there is any information in this very small paragraph about the role of the fraud investigator to suggest anyone thinking of doing the wrong thing could avoid a fraud investigation. If there is any confusion, honourable members should ask the Minister to give them a copy of the document.

The recent initiatives paragraph talks about certain initiatives that the WorkCover authority has put in place and that were available to the committee, but they were not given in camera. It also makes reference to claimant fraud steadily increasing. Again, the Government does not want this information out because it would be embarrassing, but the document is a departmental one that fully sets out the problems in the way WorkCover is investigating fraud. The other sections I ask honourable members to look at relate to main offences penalties and WorkCover or police prosecution. Again, these sections—and I am sure the Minister will be more than happy to provide honourable members with a copy of the document so they can have access to the information—spell out that the responsibility rests with the investigator to proceed under either the WorkCover legislation or the Crimes Act. The Government has put a little chart in this documentation to inform WorkCover inspectors what legislation is available to investigate fraud. What I am telling honourable members is not a State secret; the information is available to any lawyer or anyone who operates in the WorkCover scheme. The State Government is embarrassed that the document has been put together in this form. It shows the distinction between civil legislation and criminal legislation, and it is a very stark difference.

The Hon. John Della Bosca: What is wrong with that?

The Hon. MICHAEL GALLACHER: The Minister is suggesting there is nothing wrong with that. If there is nothing wrong with it, he should put it on the record and let people look at it. He is now starting to believe what I am saying is true. I have been trying to get through to him for a couple of days. He now recognises that there is nothing wrong with what I am asking. The final thing I am asking for is information on the legal role. Again, this is information to assist WorkCover inspectors to decide whether to proceed under the Crimes Act or under the Workers Compensation Act. The document spells out the differences between section 178BA of the Crimes Act, which refers to obtaining benefits by deception, and section 235 of the Workers Compensation Act. Again, I am not giving away state secrets. Any lawyer or anyone who goes to the Law Book Company can buy a book known as the Proofs of Crime, which will show the ingredients one has to satisfy—

The Hon. Peter Primrose: Point of order: It concerns me that the honourable member may be seeking to read into the record the very matters that he is asking to be made public. In doing so, the honourable member is achieving his goal without the House having made a decision. I seek your guidance on that.

The Hon. MICHAEL GALLACHER: To the point of order: The Hon. Peter Primrose has just suggested that I am about to state what is commonly accepted as criminal law versus civil law in New South Wales. I was talking about the elements of proof of the crime of fraud in New South Wales. As a qualified lawyer you know they are readily available to anyone, as they are to anyone who is interested in looking at what constitutes a fraud under the Workers Compensation Act. I am not revealing state secrets. I am merely drawing a distinction between the elements of proof under the Crimes Act and the elements of proof under the Workers Compensation Act. I am not revealing anything from the document. I am quite happy to continue the debate with the document closed.

The PRESIDENT: Order! The documents under discussion were tabled in this Parliament for members of this Chamber only to peruse. The member must not quote from any of those documents or reveal any of their contents until and unless the House has resolved to make the documents public. I uphold the point of order.

The Hon. MICHAEL GALLACHER: In a hypothetical sense, to prove the crime of fraud under the Crimes Act one would have to prove five ingredients. Under the Workers Compensation Act seven ingredients constitute the proof required. It is the view of the committee that the Government should ensure that the primary offence addressed by WorkCover is under the Crimes Act rather than under the Workers Compensation Act. The Government does not want made publicly available the revelation that WorkCover has a completely different focus, that its focus is not consistent with what I suggest is the expectation of the wider community, including both employees and employers, of New South Wales.

I am endeavouring to have this document tabled in a way that enables each and every one of us to speak publicly and say confidently that that is where the Government and WorkCover are going but this is where we should be going. The Government does not want us to have that information because it is incredibly embarrassing to the Government that it has sat so long on an approach by WorkCover that is in no way consistent with the expectations of the employers and employees of this State. I am not asking for the information suggested in the Government's crossbench briefing note, which states:

Publication of the provisions of the manual would help people undertaking fraudulent activity to get information on how WorkCover and the police service decide if and how a prosecution should proceed.

I have not suggested that, nor do the sections of the document I have requested spell that out. If crossbenchers were shown the document by the Minister they would know that what I am saying is true. They would realise that in no way do those sections of the document reveal to anyone how WorkCover goes about its investigations. The document does reveal, as we have all been aware for some time, that fraud investigation in New South Wales, of employee or employer fraud, is not fully resourced and does not have the backing of the WorkCover Authority to proceed under the strongest legislation available to investigators, the Crimes Act. The focus of the Government and the WorkCover Authority is to proceed under civil legislation. Until the Government's hand is forced on this issue, we will be unable to prove conclusively that which we have known for some time: that the approach of the WorkCover Authority and the Government to fraud is out of kilter with that of the rest of the community.

I note with some interest that the briefing note states that "investigations by WorkCover and the police could be potentially undermined by the publication of the manual". I have not sought publication of the manual. There are parts of the manual that I would not want made available to the community of New South Wales. The parts that I have sought publication of are embarrassing for the Government but are of absolutely no use to anyone who would think of committing a fraud on the WorkCover Authority or New South Wales employers. The briefing notes refer to the types of frauds as "including a physiotherapist charging for work that was not performed", "overservicing by a GP", and "an employer taking out multiple insurance policies". Each of those has been selectively chosen in an attempt to hit the raw nerve of crossbench members.

The reference to the "employer taking out multiple insurance policies" is designed to antagonise the Greens, who have been strong in pursuing the issue of employer fraud. The Government hopes that those references will set the Greens against my motion. My request will in no way give people information other than that which the Opposition has requested. All we have asked for is introductory material in the document that tells a WorkCover investigator how to operate while working for that organisation—not the decisions that the investigator must make on the fine detail of any case. This is basically a one-paragraph motherhood statement. If crossbenchers were given the opportunity by the Government to look at the document I am sure that they would know what I am saying is true. The other points restate the differences between civil law and criminal law in this State.

The Hon. John Della Bosca: You don't think you should do that?

The Hon. MICHAEL GALLACHER: The Special Minister interjected and said, "You don't think you should do that?" He is now arguing my case that this documentary material on the difference between the civil law and criminal law should be available. The Special Minister does not know which side of this debate he is on. He probably has to keep looking back to staffers to be told: "No, you're on the other side, remember. You're voting against this proposal." Be that as it may, publication of the sections of the document I have sought will not reveal any information helpful to any person seeking to commit fraud. This is merely documentary material setting out the approach that the WorkCover Authority takes, in conjunction with NSW Police, to investigation of these matters.

The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [11.43 a.m.]: The manual, as I think has been made clear from the context of the debate, and as all honourable members of the Chamber are now aware, was made available to General Purpose Standing Committee No. 1 following a request by the chair and I think some Opposition and crossbench members of the committee that the entire manual be made available to the committee.

The manual details the way in which WorkCover conducts fraud investigations. Clearly, that manual was made available to parliamentary members on a confidential basis. I advised the estimates committee at the time that, in the interests of the committee being able to develop a full understanding of how that work is conducted, I would be happy to make all details available to the committee members. In other words, the entire context of the manual was made available to members of this Chamber as members of General Purpose Standing Committee No. 1. I said also at the time that there would be serious problems with disseminating that information—that is, part or the whole of the manual—more broadly.

If the Leader of the Opposition is serious about ensuring WorkCover's capacity to detect fraud in the system, why would he want to aid fraudulent employers and claimants by giving them all the information they need to get around the detection methodologies that WorkCover has put in place, and thereby avoid prosecution? It is all very well for the honourable member to say he wants only one paragraph here and another paragraph there. He knows this is a matter of context. He knows that this is a training manual.

Reverend the Hon. Fred Nile: Pages, not paragraphs.

The Hon. JOHN DELLA BOSCA: The Leader of the Opposition said he wants disclosure of a particular paragraph so that he can embarrass the Government, and disclosure of another paragraph so that he can embarrass WorkCover. As he said himself in his contribution, he is a former serving policeman, and therefore knows about investigation methods and training manuals. He knows that I, as Minister, do not look over the shoulder of every WorkCover officer composing every internal training manual. Training manuals are not composed for the purposes of observing political correctness. They are not composed to appeal to Government, Opposition and crossbench members. They are composed to allow officers of an organisation such as WorkCover, and where relevant police or other professionals and semiprofessionals, to gain as quickly as possible the basic information and resources they need to go about their work as efficiently as practicable.

One does not compose training manuals for officers, whether for prosecution of WorkCover matters and compliance requirements or for review of occupational health and safety, from the perspective that some day an Opposition or crossbench member of Parliament might be upset about the manual or will focus on it to embarrass the organisation that one works for. A manual is composed in language that is as plain and clear as possible in order to train certain people to develop their skills and refine their capacities. Making public the sections identified by the Leader of the Opposition has the potential not only to prejudice particular fraud investigation by WorkCover or fraud investigations in general but to prejudice entirely the composition of manuals on investigation as laid out by WorkCover.

WorkCover has given me advice that even current investigations that are under way could be undermined by the publication of the manual or significant parts thereof. The Leader of the Opposition said the briefing note provided to members of this Chamber made reference to a number of particular pending prosecutions that could be undermined, including overservicing by a medical practitioner, some of the more obvious instances of employers taking out multiple insurance policies and making fraudulent claims against those policies, and physiotherapists charging for work that has not been performed. The Leader of the Opposition has a fair idea about the consequences of those sorts of fraud, but there are many others. We have not sought to set out a sort of popery of cases that might appeal to individual crossbench members, but we could easily have done so. There are many prosecutions under way.

The Hon. John Jobling: That is why the Leader of the Opposition sought the general and not the specific, and the Special Minister knows that.

The Hon. JOHN DELLA BOSCA: The Hon. John Jobling interjects that the Leader of the Opposition did not want the particular; he just wants the general. He knows full well that when dealing with a manual that is being used as a tool or resource to brief officers about methodology of investigation revealing the part is the first step in revealing the whole. It is like playing the child's game of Battleship. The Leader of the Opposition, as a former serving policeman, knows full well that that would assist offenders to put together any defences they may have against prosecution. Publication of extracts from a manual is not in the public interest or in the interests of the WorkCover organisation, because that would help people undertaking fraudulent activities to manipulate the system and undermine the integrity of fraud investigation by WorkCover and police services. I have outlined in brief a case against the motion of the Leader of the Opposition and his call for the information. I understand that the Chamber 's attitude is generally in favour of transparency.

The Hon. John Jobling: So it should be. Are you saying that we should not have an attitude generally in favour of transparency?

The Hon. JOHN DELLA BOSCA: I do not cavil with that. I accept that as a basic assumption and I accept that the Government bears the onus to explain to this Chamber why the material should not be made available. First, I submit that even the component parts of the manual will allow those who commit fraud to gain some advantage, and that that is not a cause that this Chamber would want to advance in any way. Second, a resolution in the terms of the motion will undermine the training of officers in a critical area of reform of a matter upon which this Chamber, the community at large and the Government have said that WorkCover is failing—in its fraud investigations—and those groups have pointed out the need to beef up those investigations. The Government has been doing just that, and that has been done very effectively. But as soon as we start to deal with the program of operational training and begin publishing the manuals, resources and toolkits used by investigators that will be a backward step.

Third, the Leader of the Opposition accused me in his speech of playing to the sympathies and prejudices of the crossbench. The entire pitch of his remarks was not about why acceding to the motion will advance fraud prosecutions or how it will somehow advance WorkCover reforms of internal methodologies, et cetera; his entire speech was all about how to have a bit of fun and embarrass the Government before the next election. If that is not a crude pitch to the lowest common political denominator, I do not know what is.

The Hon. Rick Colless: You would not do that!

The Hon. JOHN DELLA BOSCA: I am saying to the Opposition that the motion, if passed by this Chamber, will undermine WorkCover fraud prosecutions and will undermine the reform program, which seeks to obtain a better and clearer set of objectives for WorkCover, and it will undermine the morale of the WorkCover organisation. I point out that the entire manual was given to some honourable members of this Chamber who are also members of a committee for any purpose they determined, including the preparation of reports. The entire manual was given to crossbench, Opposition and Government members of a committee and that allowed them to form judgments that comprised part of their report to this Chamber. The motion represents a little bit of churlishness on the part of the Leader of the Opposition, who has sought to use the committee's examination of the manual to pick out a couple of paragraphs to propagate an argument, and use that opportunity as a wedge. The Opposition's intention is clearly to embarrass people, without concern for the consequences. The Opposition is confident that the crossbenchers and others will support that strategy because the motion will embarrass the Government.

However, a deeper obligation is involved. I would like to think that I have established a case for an exception to apply to the general sentiment of this Chamber in seeking transparency. This is one case in which no Government secrets are involved. There is nothing that causes me general concern about the entire manual being released, but what I am concerned about is the consequence of the release of the manual for WorkCover fraud investigations, the consequences for WorkCover's morale, and the responsibility of the Government and this Chamber to protect both. I urge all honourable members to vote against the motion.

The Hon. MALCOLM JONES [11.52 a.m.]: Throughout the term of this Parliament there has been a raft of workers compensation reforms, and I have been in favour of the vast majority of them, with the exception of the Workers Compensation Legislation Amendment Bill that was passed last night, which I thought was dreadful. Although I am a supporter of workers compensation reforms, one of the matters that I have not been happy about is the weight of responsibility resting on the shoulders of employers, whereas to a certain extent the obligation of employees to do the right thing has been glossed over, based on the assumption that employees not doing the right thing does not happen. It has been suggested that the benefits of worthy claimants of workers compensation may be infringed by attention being drawn to fraudulent claims for workers compensation. However, it is possible that the time has come for a higher standard of accountability to be set.

I appreciate that the Minister has made the papers available to General Purpose Standing Committee No. 1. However, I have been swayed by the argument advanced by the Leader of the Opposition that the manual's contents should be generally aired. An accusation has been made about politicking—everybody knows that an election is imminent—but that is just too bad. In my opinion, the Government has had a good run with its workers compensation reforms. Perhaps the time is ripe for examination of the possibility of raising the standards of accountability and strengthening the effectiveness of attempts to crack down on fraud. Generally I am in favour of orders for papers to be produced being made by this Parliament and if, because of the timing, a call for papers opens a Pandora's box and causes embarrassment for the Government, that is just hard luck.

The Leader of the Opposition has just handed me a note stating a proposition that I think is quite reasonable: Will the Minister consider supplying members with the documents in question over the luncheon recess to enable honourable members to make up their minds? I ask the Minister that question, and perhaps he will take advice. If all that is put at stake by passing this motion is embarrassment for the Government, in light of the fact that this Chamber has been grinding away at workers compensation for four years, the timing of the motion is just too bad for the Government. I support the motion moved by the Leader of the Opposition.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [11.57 a.m.]: I am very keen on transparency and have advocated the strengthening of the provisions to promote transparency in this Parliament. Honourable members will be aware that the Government (Open Market Competition) Bill was passed by this Chamber and was sent to the lower House where the Carr Government effectively strangled it by not allowing it to be brought on for debate. Generally I believe there is a need for a culture of openness in the public service. If the manual is written in a manner which will make it embarrassing for the Government, in a sense that is a reflection of the assumption that anything that is done in the public service will not be public. That is part of the problem that needs to be addressed in the context of a lack of openness in government in New South Wales.

I have been very concerned about the lack of prosecution by WorkCover and that its accident rate still is not as good as it ought to be. When I sought the Government's approval for my Crimes Amendment (Corporate Manslaughter) Bill, the response was negative and the Government's opinion was that it was not necessary because WorkCover's very strong prosecution laws apply in New South Wales. Be that as it may, not many prosecutions have been undertaken against people who are on the higher rungs of the corporate ladder. Although WorkCover legislation might be strong, it has not been effective in addressing corporate manslaughter and putting some stick into workers protection laws, quite apart from the fact that corporate manslaughter of a worker not in a workplace is not covered. There have been few prosecutions and relatively little publicity given to workplace accidents relative to the incidence of the problem. More attention should be given to this issue and delivery of the manual may engender public recognition of its importance.

I note that in this Chamber over a very long period the Leader of the Opposition has adopted a very pro-police attitude and he would know the effect that releasing the manual would have on prosecutions. Based on his track record in this Chamber, he should be credited with personal integrity and with the presumption that he is unlikely to do anything that would hinder police in prosecuting people who have done the wrong thing. In the interests of reaching a balance, honourable members should be able to see the manual and draw attention to the corporate manslaughter problem.

Pursuant to sessional orders business interrupted.

The Hon. DUNCAN GAY: I direct my question to the Treasurer or, in his absence, the Assistant Treasurer. How does the Premier's description of the work force of Pacific Power International [PPI] as "engineers sitting at desks with no function" compare with the company's results for the last financial year showing a dramatic turnaround from a loss of $2.71 million to a profit of just over $650,000? How does that statement compare with the numerous highlights in Pacific Power's annual report detailing the work of PPI, including a statement from company chairman Ross Dunning which reads, "Throughout the region, the PPI brand is highly regarded as a result of our standards and performance"? Is the company continuing to complete extensive and essential engineering works across New South Wales, Australia and South-East Asia, and therefore negating the very reason that the Government is using to privatise this State-owned company that it said it would not privatise?

The Hon. JOHN DELLA BOSCA: The Leader of the Government probably missed the first part of the question, which compared the issues raised in Pacific Power's annual report with comments made earlier in the year by the Premier. Since I cannot answer, and would not be called upon reasonably to answer for the Premier's comments, I will ask the Premier to provide an answer to the question.

The Hon. TONY KELLY: Will the Special Minister of State inform the House about changes to the WorkCover scheme which assist farmers to fit roll bars to tractors?

The Hon. JOHN DELLA BOSCA: WorkCover's Roll-Over Protective Structures Scheme [ROPS] commenced in May 2000. The scheme has been an outstanding success. Since its introduction the scheme has paid out more than $1.2 million. This money has helped to fit life-saving roll bars to more than 6,000 tractors across the State. The scheme has been a valuable tool in reducing fatalities and injuries on farms. The ROPS scheme provides farmers with a $200 rebate to install rollover protection bars on their tractors, combating a major hazard for rural workers. The Government has agreed to extend the ROPS scheme until June 2003. The extension forms part of the Government's response to the New South Wales Workplace Safety Summit held in Bathurst in July this year. The extension to the ROPS scheme will make a significant contribution towards meeting the target set by the safety summit's rural industry working group, which set a target of reducing workplace deaths on farms by at least 30 per cent over the next five years.

Tractor rollovers are the leading single cause of farm deaths. In the past 10 years 17 people have lost their lives in tractor rollovers in New South Wales. For those who survive a tractor rollover the average time off work is nine weeks. That is a long time to be unable to work on a property. The financial cost of each accident is approximately $15,000. So the ROPS rebate has been $1.2 million well spent. The ROPS rebate forms one part of the three-year program of safety initiatives announced by the Government following the Workplace Safety Summit. That package focuses on developing practical solutions for the prevention of injury in high-risk areas. The New South Wales Government's efforts on injury prevention have had a real effect in workplaces around this State. The incidence of workplace injury has fallen for six consecutive years. By assisting to fit more than 6,000 roll bars to tractors around New South Wales the WorkCover ROPS scheme is playing its part in making rural workplaces as safe as they possibly can be.

The Hon. MICHAEL GALLACHER: The Minister for Police has now had two days to be briefed on the slow progress of investigations into serious fraud and assault allegations involving the New South Wales State Secretary of the Australian Workers Union. Will he now advise the House why certain basic procedures have not been carried out? I refer, first, to the DNA testing of a balaclava used in the vicious assault of Scott Wyatt and, second, to not informing the complainant of the final outcome of the fraud investigation even though she supplied a 13-page statement to investigators?

The Hon. MICHAEL COSTA: This is the third question on this matter that the Opposition has raised. I do not intend to delve into operational matters—I have already made that clear. But I am sure that the Leader of the Opposition, when he is unemployed after the next State election, could go back to operational policing if he wants to direct our police in how to investigate. I have full confidence in our police to engage in proper investigatory procedures. If he has any evidence that they have not done that he ought to raise the matters with the Police Integrity Commission [PIC]. If he does not have any evidence he should just be quiet about the matter and let the police get on with the job of investigating the matters in the manner in which they have been trained to. As I said, after the next State election I am sure there will be a vacancy for a Coalition Opposition leader in this Chamber. The Leader of the Opposition can always go back to the police.

The Hon. IAN COHEN: My question is addressed to the Treasurer. Several months ago the Premier announced that State Forests of New South Wales was to receive $100 million of the national action plan on water quality and salinity money for plantation establishment. Has the Commonwealth agreed to this project and has New South Wales Treasury received the money?

The Hon. MICHAEL EGAN: I must concede that I do not know the answer to either of those questions. I will obtain advice and provide it to the House as soon as I can.

The Hon. IAN COHEN: I ask a supplementary question. If the money has not been received, could this be because the Commonwealth has been advised that the State Forests proposal could actually worsen rather than mitigate salinity?

The Hon. MICHAEL EGAN: The honourable member's question is hypothetical, and in view of my earlier answer I thought it was a strange supplementary indeed.

The Hon. PETER PRIMROSE: Will the Treasurer, Minister for State Development, and Vice-President of the Executive Council provide the House with information about yesterday's fires and their effect on the electricity network?

The Hon. MICHAEL EGAN: I know that I speak on behalf of all members of the House in expressing our sympathy to those people who have lost homes and possessions in the last 24 hours. Thankfully, there has been no loss of life, and we ought to pay tribute to the tremendous efforts of our emergency services for that fact. Sydney's electricity network coped extremely well under very difficult conditions created by the fires. Major bushfires were burning around high-voltage transmission lines operated by TransGrid and EnergyAustralia, causing dips in the power supply system in Sydney, the Central Coast and the Hunter. These momentary dips in power supply caused lights to flicker and computer systems to restart as the fires burned close to or under major transmission lines at Kemps Creek, Ingleburn, Picnic Point, Mason Park and Vineyard. It is testament to the robustness of the electricity network that it withstood these extreme environmental conditions.

The Hon. Duncan Gay: It is testament to poor planning that you had these problems. We have had bushfires before.

The Hon. MICHAEL EGAN: I would urge and advise the Deputy Leader of the Opposition not to say silly things. Fire also threatened EnergyAustralia's zone substation at Mason Park. Thankfully, the planned clearing of vegetation around the substation kept the bushfire away and allowed the substation to escape major damage. Bushfires were also burning under TransGrid's high-voltage network in Sydney's south-west. Its major substation at Picnic Point, which is part of the electricity network supplying power to the southern suburbs and the central business district, was also affected. The momentary blackouts that we experienced yesterday were as a result of the electricity network's protection systems operating as they should. The dips in the supply system occurred because the protection systems on these major transmission facilities worked exactly as they were designed to work.

The fire, or smoke from the fires, burning close to and directly under the transmission lines caused arcs similar to lightning strikes. These arcs are detected by the automatic protection systems, which then trip the power to prevent permanent damage. After a short time the lines automatically reclose and stay in service. I am told that between 3.00 p.m. and midnight last night this happened more than 70 times on TransGrid's high voltage network. This is what would normally be expected in a week or so during severe bushfires.

The power interruptions experienced by a number of major venues, commercial buildings, railway stations and traffic light installations around the city were caused by the internal protection systems of these installations tripping out. There were no EnergyAustralia or TransGrid network interruptions to these customers. With hot, dry and windy conditions again today we may see more temporary interruptions to power supply as the network protection mechanisms go to work.

The Hon. MALCOLM JONES: My question is addressed to the Hon. Carmel Tebbutt, the Minister representing the Minister for the Environment. I draw the Minister's attention to an invitation to tender by the National Parks and Wildlife Service that appeared in the classifieds section of the Land on Thursday 28 November at page 14:

Tenders are invited for the utilisation of sheep as a conservation management tool on Oolambeyan National Park.

Does the National Parks and Wildlife Service have further plans to expand this most valuable conservation tool in these extreme drought conditions?

The Hon. CARMEL TEBBUTT: I am unable to advise the Hon. Malcolm Jones whether the National Parks and Wildlife Service has further goals to utilise sheep as a conservation management tool. I will refer the question to the Minister for the Environment and I undertake to obtain a response for the honourable member as soon as possible.

The Hon. CHARLIE LYNN: My question is addressed to the Minister for Police. When he was appointed the Minister for Police, did he notify the Premier that he had an interest in an ongoing police investigation? I refer to the occasion when, as Labor Council Secretary, he had set up an inquiry by John Whelan into fraud in the Australian Workers Union, and that matter had become part of a police fraud investigation.

The Hon. MICHAEL COSTA: This is the fourth time I will answer this question in the same manner. This is a matter for operational police. I am not delving into operational police matters. If Opposition members have any evidence of any impropriety, they can go to the Police Integrity Commission and I will support them and even provide them with an addressed envelope.

The Hon. CHARLIE LYNN: I ask a supplementary question. In the event that the Minister did advise the Premier, would he table that letter?

The Hon. Michael Egan: Point of order: The supplementary question is clearly out of order because it is clearly a hypothetical question. I would draw the attention of the Hon. Charlie Lynn, who has been here long enough to know better, that hypothetical questions are entirely out of order.

The Hon. Dr Brian Pezzutti: To the point of order: The Hon. Charlie Lynn first asked if the Minister had advised the Premier. In the supplementary question, he asked that if the Minister had advised the Premier would he please provide the letter. That is entirely in order. I believe the Leader of the Government is simply raising a red herring.

The Hon. Michael Egan: To the point of order: If the Hon. Charlie Lynn and the Hon. Dr Brian Pezzutti had read the standing and sessional orders, they would know that the question is out of order.

The PRESIDENT: Order! The sessional orders relating to rules for questions clearly provide that questions must not contain hypothetical matter. The same rule applies to supplementary questions. The question does not comply sufficiently with the guidelines relating to supplementary questions in that it seeks information of a hypothetical nature rather than elucidation of the Minister's answer. I rule the question out of order.

The Hon. RON DYER: My question without notice is to the Treasurer. Will the Treasurer inform the House of the latest developments in the costing of election commitments?

The Hon. MICHAEL EGAN: I most certainly shall. Today the Leader of the Opposition has shot to pieces his own arguments against Treasury costings of election promises. His hypocrisy, duplicity, rashness and inexperience have been exposed for all to see. Last Friday Mr Brogden was interviewed on ABC's Stateline by Quentin Dempster. The Leader of the Opposition was asked:

Why won't you sign up to an election costing agreement on clear and transparent terms with the government?

In other words, why would he not sign up to the independent costings of policies by Treasury?

The Hon. Duncan Gay: They don't trust Treasury.

The Hon. MICHAEL EGAN: That is right. The Hon. Duncan Gay says it is because "they don't trust Treasury". That was exactly John Brogden's reply. He said, "We do not trust Treasury". It has taken just six days for the Leader of the Opposition to come up with a different story. Today, just six days after that interview, it appears Mr Brogden has decided that he does trust Treasury after all. In the Manly Daily today Mr Brogden is quoted as saying that in a Coalition government his budget and economic and financial forecasts would be "personally signed off by the secretary of the Treasury".

The Leader of the Opposition might be running scared from his wild, rash and reckless tally of over $5 billion in promises, but he cannot have it both ways. He cannot say he does not trust Treasury one day, then declare he does trust Treasury less than a week later! But the Leader of the Opposition is at least playing true to form. Let us look at his weakness, panic and flip-flopping on this issue because on 6 June in Parliament it was the Leader of the Opposition who called for "independent costings of policies by Treasury". They are his words, his own request, and we have acceded to that. We have introduced a protocol for that.

The PRESIDENT: Order! I call the Leader of the Opposition to order for the first time.

The Hon. MICHAEL EGAN: But on 6 November, with regard to the plan to have Treasury cost election promises, Mr Brogden declared "It's not going to happen". Last Friday he held the line that he does not trust Treasury; but today Treasury is back in his good books and he will trust Treasury to sign off on Coalition finances. The Leader of the Opposition cannot be trusted and he cannot be relied upon. How can anyone know what he stands for on any given day? On 6 June the Leader of the Opposition wants Treasury to cost the policies of the Government and Opposition. On 6 November he says it is not going to happen. On 29 November he says he does not trust Treasury. On 5 December he does trust Treasury! Last weekend I referred to the Leader of the Opposition as "Two-job Johnny". I apologise to the House; I was wrong. I should have referred to him as "Two-faced Johnny".

The Hon. John Ryan: Point of order: The standing orders are clear that reflections on members of another place are inappropriate. There is little doubt that the expression just used by the Treasurer is clearly a reflection on the honourable member for Pittwater in another place. It is entirely inappropriate. Most of the Treasurer's speech could have been given yesterday in response to his bill. Clearly, he did not have the courage to give it then.

The Hon. Amanda Fazio: The same thing could have been said about you.

The PRESIDENT: Order! I remind the Treasurer that he must not make implications against members of this Chamber or the other Chamber.

The Hon. Greg Pearce: Point of order: During the previous point of order the Hon. Amanda Fazio interjected on the Hon. John Ryan in the same terms as the matter complained of by the Hon. John Ryan. I therefore ask you to suggest to the Hon. Amanda Fazio that she not cast aspersions on members of the upper House, which is in breach of the standing orders.

The PRESIDENT: Order! Interjections are disorderly at all times.

The Hon. RON DYER: I ask a supplementary question. Is the Treasurer able to elucidate his answer?

The Hon. MICHAEL EGAN: Yes, I am. This New South Wales Treasury—the organisation that one day the Leader of the Opposition in the other place does not trust, then the next day he does trust—is the same New South Wales Treasury that served the Government of John Fahey and the Government of Nick Greiner. Only two senior officials now in Treasury were not there under Mr Fahey's Government. The two officers who did not serve under former Premiers Mr Fahey and Mr Greiner are both senior officers, one from the Commonwealth Treasury and one from the New Zealand Treasury. They are experts and they have, fairly and impartially, served governments on both sides of the political fence.

The Hon. Dr Brian Pezzutti: Point of order: Clearly, the Treasurer is misleading the House—

The PRESIDENT: Order! That is not a point of order.

The Hon. MICHAEL EGAN: It is quite clear that whenever I refer to this very sensitive subject of Opposition promises, their unaffordability and their costing, members of the Opposition try to eat up as much time as they can by taking senseless points of order. The Auditor-General has agreed to scrutinise Treasury's compliance with the costing protocol. The legislation that passed through this House yesterday will make it illegal for any Treasury officer to reveal any confidential information about Opposition or Government policies that are being costed. [Time expired.]

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: My question without notice is directed to the Minister for Community Services. Is the Minister aware of a consulting psychiatrist report on the children of the Al' Abaddi family currently detained in the Villawood Detention Centre, which recommended the immediate release of Nashwa and Humam, the two eldest children? Will she act on these recommendations? What steps will she take to achieve the release of these young people? Will the Minister agree to an inquiry into children in detention in New South Wales?

The Hon. CARMEL TEBBUTT: The Hon. Dr Arthur Chesterfield-Evans has raised an important issue of concern within the community. However, I make it clear to the House, as I have done on previous occasions to the honourable member, that the Department of Community Services [DOCS] has no jurisdiction over the Villawood Detention Centre, which is operated by the Commonwealth Department of Immigration and Multicultural and Indigenous Affairs [DIMIA]. The Children and Young Persons (Care and Protection) Act 1998 does not apply to children and young people in the Villawood Detention Centre. People might like that to be different, but that is the fact of the matter.

The Department of Community Services can only investigate reports received about individual children confined in Villawood if DIMIA invites DOCS in. When this occurs DOCS can only undertake assessments and make recommendations to DIMIA about required action. Previously, the department has investigated reports about children at Villawood. However, I cannot say whether the report referred to by the honourable member involves one of the children we have investigated previously, which was prior to my time as Minister. I am happy to follow that up. The New South Wales child protection legislation does not apply to children and young people in the Villawood Detention Centre.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: I ask a supplementary question. Does the Minister have an opinion from the Solicitor General? It does not seem possible for a memorandum of understanding about the detention centre to override State laws at a constitutional level.

The Hon. CARMEL TEBBUTT: The answer I have given is based on advice from the Department of Community Services. It is accurate and correct advice.

The Hon. RICK COLLESS: My question is directed to the Minister for Mineral Resources. Is the Minister aware of concerns from opal miners in the Grawin region, near Walgett, about the future of their operations? Why has the Department of Mineral Resources so far failed to adequately respond to a number of concerns raised by the opal miners association in that area? Is he aware that in three years of correspondence from the local mining association, the department has provided just one response? Is this situation acceptable? What action will he take to deal with the concerns of the association?

The Hon. EDDIE OBEID: As I am aware of the issues raised by the Glengarry Grawin Sheepyard Miners Association, I am advised that all correspondence to the Department of Mineral Resources has been acknowledged and addressed at regular meetings of the Lightning Ridge Mining Board. The board has representatives of opal miners associations, State government agencies, local government, landowners, farmers and graziers. The department has actively explored with all stakeholders options for the operation of mullock dumps as part of an effort to improve safety and environmental outcomes. The Government values the contribution of opal mining to local communities, and will continue to consult with all stakeholders on all issues that impact on the opal mining industry and protection of the local environment.

The Hon. AMANDA FAZIO: My question is addressed to the Minister for Fisheries. What has been done to help educate our children about the importance of sustainable recreational fishing?

The Hon. EDDIE OBEID: I commend the honourable member for her continuing interest in protecting our fish stocks for future generations. Recently the New South Wales Government released a new education kit, "Get hooked … It's Fun to Fish", that teaches primary school students about responsible fishing. The kit will be trialed in 25 public and private primary schools in New South Wales. Two environmental education centres and three sport and recreation centres are also helping NSW Fisheries to trial this new kit, which is a first for the New South Wales Government. It contains topics to help school students from year 3 to year 6 learn more about fishing and the aquatic environment. It is helping children learn about aquatic life, fishing safety, habitation protection, catch limits and responsible fishing. Recreational fishing is one of the top 10 sports in New South Wales, and it is one of the most popular activities enjoyed by families when they are on holidays.

It is a great opportunity for kids to have fun and get involved in a healthy outdoor sport. NSW Fisheries is assisting teachers and schools participating in this trial by organising school visits, fishing clinics, field trips and hatchery visits. It is important that young people understand the importance of responsible fishing practices so that they can help to protect our fish stocks in the years to come. NSW Fisheries worked closely with the Department of Education and Training and the New South Wales Board of Studies to ensure that the kit met New South Wales syllabus requirements. The Commonwealth Government, other States—Victoria, Queensland, Tasmania and the Australian Capital Territory—and RecFish Australia, a national recreational fishing organisation, were also involved. Subsequently, the education kit will be released statewide in 2003. This is a fantastic learning opportunity for children, who are the key to future sustainable fisheries management. It is great way to teach children about our State's great recreational fishing.

The Hon. RICHARD JONES: I ask the Minister for Community Services, representing the Minister for the Environment, my very last question in this House. Given that we are experiencing what is arguably the worst drought in 100 years, with devastating consequences for not only householders around Sydney but also farming communities and our native wildlife, will the Minister call an immediate halt to the issuing of licences to kill any protected wildlife, whether they be flying foxes, kangaroos, wallabies, native ducks or swans, to give drought survivors a chance to recover their numbers? If not, what excuse can the Minister give?

The Hon. CARMEL TEBBUTT: I thank the Hon. Richard Jones for this question, which may well be one of the last questions he asks on this issue—he has certainly asked many. I will refer it to the Minister in the other place and undertake to get a response as soon as possible.

The Hon. MELINDA PAVEY: I direct my question to the Minister for Community Services, representing the Minister for the Environment. When will the Minister make a decision to give Telstra access to construct a mobile phone tower on national park land at Yabbra Mountain at Old Bonalbo to give the people of the upper Clarence mobile phone coverage? Is the Minister aware that the local community has raised substantial funds to support mobile phone coverage for the region? Why is the Government stalling on a decision when amendments have been drafted to allow the construction of the tower in the national park?

The Hon. CARMEL TEBBUTT: I am aware that the issue of mobile phone towers in national parks is particularly difficult. I will refer the question to the Minister for the Environment and undertake to obtain a response.

The Hon. IAN MACDONALD: I direct my question to the Treasurer. Will the Treasurer inform the House about the latest New South Wales Government initiatives to help small communities in regional New South Wales?

The Hon. MICHAEL EGAN: I do not think there will be any more Australian Technology Showcase questions or answers in this Parliament.

The Hon. Michael Gallacher: That is a shame.

The Hon. MICHAEL EGAN: I agree. I will tell honourable members about each one in the next Parliament. The Townlife Development Program encourages small communities to work with the Government to promote economic development and jobs growth. A fantastic recent example is the Nymagee Outback Music Festival. It attracted more than 1,000 people to the tiny hamlet, which is about an hour's drive from Cobar. I have been to Cobar but not to Nymagee. Acts including the Bushwackers, the Remains, the Rovers and Drivers Outback Show and Campbell the Swaggie came to the Nymagee festival this year.

The Hon. Duncan Gay: Do you know Marsha?

The Hon. MICHAEL EGAN: No, I do not. Nymagee has a permanent population of 62, give or take one or two. It is now experiencing a population boom, due in part to the popularity of the festival.

The Hon. Melinda Pavey: Marsha is the most popular person in the area.

The Hon. MICHAEL EGAN: I do know the mayor of Cobar—everyone knows Lilliane.

The Hon. Duncan Gay: But you haven't met Marsha.

The Hon. MICHAEL EGAN: No, I have not.

The Hon. Melinda Pavey: Marsha is fantastic.

The Hon. MICHAEL EGAN: Is Marsha larger than life—larger than Lilliane?

The Hon. Duncan Gay: Yes.

The Hon. MICHAEL EGAN: I find that impossible to believe. Nymagee held its first Outback Music Festival when the hamlet had a population of only 35. It now has a population of 62 and no vacant houses, so new residents must have their houses built. The Nymagee school was on the verge of being closed a few years ago because it had only four students. It now has 10 students and will remain open.

[Interruption]

I know that Nymagee does not have an Opera House, but I can assure honourable members that that will not be in the Government's list of commitments for the next Parliament. This truly grassroots festival celebrates young, emerging artists and established Australian musicians. The positive effects of the festival are tangible. For example, travellers from Japan, Belgium, Switzerland, Sweden, Mexico and Korea are interested in outback New South Wales and the festival; they regularly visit the area. City people have bought historic buildings such as the post office, bank and general store, and plan to renovate. The general store, which had been closed for more than a year, was reopened for the festival. I am pleased that the New South Wales Government is helping communities with a maximum population of 2,500, or, in the case of Nymagee, 62 and rising. The town has one of the highest population growth rates in Australia. The population was 35 last year and it is now 62. There is not another town or city in Australia with a better population growth rate.

Reverend the Hon. Dr GORDON MOYES: I thank the public relations officer for Nymagee! I direct my question to the Minister for Police, representing the Minister for Gaming and Racing. Is it true that gamblers spent $35 billion on poker machines last year and that profits increased to $4.3 billion? Is it true that the total number of poker machines in New South Wales has now reached a record—the equivalent of one machine for every 66 people? Is it also true that families bear the brunt of the pain and misery that accompany problem and pathological gambling, which damages families resulting in divorce, child abuse, neglect and domestic violence? What action will the Government take to further address the growing problem of gambling addiction by returning more of these huge profits to the community to help problem gamblers and to fund counselling services?

The Hon. MICHAEL EGAN: It is true unfortunately that addiction to gambling can cause very serious personal and social problems. For that reason the Government is very active in formulating and implementing a comprehensive range of harm-minimisation measures. By and large, the hotel and club industry has been very supportive of those measures. In July last year the Government introduced the first cap on the number of poker machines in New South Wales at 104,000 machines. The total number of machines could not be predicted because applications had been made by clubs or hotels which were entitled to have machines but which had not installed them.

As at 30 June the number was a little more than 101,000. Despite a short-term increase, over time the number of machines will decrease. That is because the reforms introduced by the Government last year demand that for every two poker machines traded on the market—and we have recently established this market—a pub or a club must surrender a third machine. New South Wales gambling revenue, as a proportion of the total State revenue, is 9.1 per cent. That is a significant amount and helps fund schools, hospitals, roads, community services and all the other services that a government provides.

Although the New South Wales proportion is 9.1 per cent, which is quite high, it is just over half the proportion of total revenue that Victoria gets from gaming, which is 15 per cent. It is well below that of Queensland, which is 12.3 per cent, South Australia, which is 13.3 per cent, and Tasmania, which is 11 per cent. That is because, although New South Wales has more poker machines in total and per capita than other States, tax rates in other States are significantly higher than in New South Wales. When the Government introduced those reforms last year it undertook to the club industry that there would be a moratorium on those tax levels for a designated period.

The honourable member raised a serious and important question. There is no doubt that gambling can have very deleterious consequences for people who are addicted to it, as well as their families and the community. I assure the honourable member that the Government is mindful of the problem. I assure him also that, as I indicated earlier, by and large the club and hotel industry is being very co-operative in this area.

The Hon. JAMES SAMIOS: My question without notice is addressed to the Minister for Police. Is the Minister's unwillingness to advise the House about the police investigation into the Australian Workers Union [AWU] associated with his close personal relationship with Russ Collison, the New South Wales branch State Secretary?

The Hon. MICHAEL COSTA: That is the most appalling attempt to smear that I have ever been privy to. It is just unbelievable. I have said, and will say again, that if the honourable member has any evidence of any impropriety he should make sure that he understands the process under which it operates. If he has a skerrick of evidence he should take it to the Police Integrity Commission [PIC]. Do I know Russ Collison? Yes, I do. I think most people on this side of the House would know him. If there is a police investigation, let it go forward. If the honourable member has any allegations of corruption, or anything to do with that investigation that needs investigating, he should take it to the PIC.

The Hon. JAMES SAMIOS: I ask a supplementary question. Is the Minister's refusal to advise this House about matters relating to his Police portfolio connected to the fact that as secretary of the New South Wales Labor Council he was dependent on the AWU's support? Is this a conflict of interest?

The Hon. MICHAEL COSTA: I will deal with the false premise in the question. I am proud that as secretary of the Labor Council of New South Wales I was elected unopposed on every occasion. Clearly, I was not dependent on the AWU for a vote; I had the overwhelming support of the trade union movement because I did such a good job, just as I am doing as Minister for Police.

The Hon. HENRY TSANG: My question without notice is to the Minister for Industrial Relations. Will the Minister inform the House why the Government believes that reinstatement should be the main remedy for unfair dismissal?
The Hon. JOHN DELLA BOSCA: When the five-year review of the Industrial Relations Act 1996 was conducted, the Government received submissions proposing changes to the way that the unfair dismissal jurisdiction operates. Concern was expressed from both industrial parties about the way the jurisdiction had changed from one that sought to redress potential injury suffered by a worker unfairly dismissed by restoring the employment relationship to one that focused on finding a money-based compensation solution. Such an approach is not good for employers or employees, or for the health of the unfair dismissal system.

The Government understands that on-the-job relationships can and do break down irretrievably. Forcing people back into jobs that they do not want, with employers who do not want them, is not the way to restore and maintain workplace harmony. It has never been, and is not, the Government's intention to put an end to monetary settlements or orders by the commission as a remedy for unfair dismissal. We want to make sure that reinstatement is properly considered by the commission before it is found to be impracticable. It is apparent from the public statements of the Leader of the Opposition that the Opposition does not support this view. Last night in the House the Leader of the Opposition said:

… to ensure that employees got their jobs back, to make that a primary focus—was inconsistent with the reality in the workplace.

The Leader of the Opposition is outflanking Tony Abbott, the Federal Minister, to the Right—a very ugly thought indeed—which will not do his preselection any good at all. He said:

… to make reinstatement the primary remedy is inconsistent with the reality in the workplace.

On 13 November, when the Federal Minister for Employment and Workplace Relations proposed a new law on unfair dismissals, he told Federal Parliament that the new law "emphasises that reinstatement is the primary remedy". While there are other aspects of the Federal bill that the New South Wales Government does not support, the sentiment expressed in those words is endorsed and is correct. I place on record that the Government will consider a similar option in the New South Wales unfair dismissal jurisdiction if there is community and small business support for similar State-based legislation.

It is little comfort for New South Wales workers to find that Tony Abbott is more supportive of their cause than is the Leader of the Opposition and the New South Wales Coalition; but that is true. Last night the Leader of the Opposition described Tony Abbott as "my learned colleague". There are some things he could learn from Tony Abbott, and praise for the New South Wales industrial relations system is one. On 26 November Tony Abbott singled out the construction of two almost identical Orica plants, one in Sydney and one in Melbourne. Mr Abbott said, "The Sydney plant was finished on time and on budget." Who constructed the plant? It was one of Australia's greatest unions, the New South Wales branch of the Australian Workers Union.

It covered the membership of the site under the New South Wales industrial jurisdiction. That organisation was subject to a series of vicious and pointless questions by the Leader of the Opposition. Mr Abbott said further that "Woolworths had much the same experience". Referring to that construction, he said that "The Sydney warehouse was on time." Site coverage was with the Construction, Forestry, Mining and Energy Union. Mr Abbott recognises that the New South Wales industrial relations system is delivering results for employers and employees. I remind all honourable members of the magnificent effort of the New South Wales trade union movement in the construction of the Olympic Games venues, on time and on budget. [Time expired.]

The Hon. HENRY TSANG: I ask a supplementary question. Will the Minister elucidate his answer?

The Hon. JOHN DELLA BOSCA: Yes. I wish to make one more point in keeping with the spirit of the supplementary question. As I have made clear in this House and in the public arena, the New South Wales system is based on co-operation and respect for an independent umpire, based on the principal of reasonable and fair treatment and achieving fair outcomes, and based on the assumption that fairness is efficient. A more efficient workplace can be achieved if there are fair workplace rules. The New South Wales system is delivering results for workers and employers and is helping to ensure that New South Wales is competitive and that workplaces remain harmonious and productive. It has become part of the competitive advantage of New South Wales against the other States.

Reverend the Hon. FRED NILE: My question is addressed to the Treasurer. Has the homosexual Gay Games 2002 unpaid bills of $2.5 million and gone into voluntary administration? Did lacklustre ticket sales and a general disinterest in the event cause the failure of the homosexual Gay Games? Today the media reported that the State's taxpayers could be forced to foot the bill for this failed event. Will the Treasurer ensure that no New South Wales taxpayers' dollars are used to bail out the failed Games, and that wealthy homosexual promoters should pay all outstanding bills to assist local Sydney businesses that are facing bankruptcy?

The Hon. MICHAEL EGAN: I am not aware of the matter to which Reverend the Hon. Fred Nile refers. However, I take it from his question that there may have been press reports on the matter which I have not seen. I am not aware whether the Gay Games finished with either a loss or profit. In any event, I do not know how that would impact upon the State. According to the newspaper article which the honourable member has now provided me, I understand that some money is still owed to the Australian Taxation Office and also some government entities. I will obtain further information on the matter and provide it to the House as soon as possible.

The Hon. JENNIFER GARDINER: My question is to the Minister for Mineral Resources, representing the Minister for Transport, and Minister for Roads. Will the Minister inform the House what steps are being taken to dredge the Yamba bar? Is he aware that the Government's failure to address this situation threatens jobs and businesses in, for example, the local timber, shipping and fisheries industries? If dredging is to occur, what is the timetable for completion?

The Hon. EDDIE OBEID: It is an important issue, and I will endeavour to obtain a detailed answer as soon as possible. However, I wish to correct the Hon. Jennifer Gardiner. The appropriate approval process for dredging is handled by the Minister for Land and Water Conservation, not the Minister for Transport, and Minister for Roads.

The Hon. JAN BURNSWOODS: My question without notice is to the Minister for Community Services. Will the Minister inform the House about the level of support being provided by the Department of Community Services to communities affected by the current bushfires?

The Hon. CARMEL TEBBUTT: Unfortunately, yesterday was one of the busiest days for the Department of Community Services [DOCS] and community agencies—not to mention our rural fire services and firefighters—since the chaos of the Christmas 2001 bushfires. Yesterday saw one of the largest number of evacuation centres set up by the department in a single day. The fires are having a devastating impact on local communities, with many families and individuals losing their homes and all their possessions, walking away with little more than the clothes on their backs. It is difficult to imagine what those people must be going through. The Treasurer has already extended the heartfelt sympathies of the House to all those who have suffered losses as a result of these bushfires.

Last night a total of seven evacuation centres were set up by the Department of Community Services: five in Sydney, one at Nowra and one at Mangrove Mountain near Gosford. More than 600 people attended the department's evacuation centres yesterday and overnight as fires threatened homes in Sydney, on the Central Coast and on the South Coast. Evacuation centres are the first phase of DOCS assistance for people affected by disasters. The next phase can include the establishment of disaster recovery centres, and help at local DOCS offices in meeting people's longer-term needs in recovering from the disaster.

The department established evacuation centres at five Sydney locations: New Brighton Golf Club at Moorebank, Moorebank Sports Club at Holsworthy, Menai Catholic Club at Menai, Revesby Workers Club at Revesby and Dural Country Club at Dural. Evacuation centres at Dural Country Club and Mangrove Mountain Golf Club, near Gosford, are still open. Two centres are also on stand-by at Thornleigh Baptist Centre and Berowra Community Centre, ready to roll if the situation worsens. Let us hope that is not the case. A centre also remains on stand-by at Pokolbin, in the Hunter Valley. Yesterday about 300 people registered at a DOCS evacuation centre at Nowra Showground. The centre remains open as fires continue to threaten homes in the Shoalhaven area.

The Department of Community Services has a fine record in responding quickly to the bushfire crisis in New South Wales, setting up evacuation centres where residents have been forced from their homes. However, yesterday high temperatures and strong winds forced DOCS to set up evacuation centres in just several hours. DOCS and community agency staff at the evacuation centres will help to provide things like immediate cash assistance, temporary accommodation where necessary, and food and transport. It will also help people get in touch with other community services as appropriate.

As bushfires threaten Sydney and New South Wales, DOCS has now assisted more than 1,000 victims since September 2002. The department has also distributed a total of 36 Helping Hand grant payments worth $340,000. I take this opportunity to acknowledge and thank all the staff of the Department of Community Services who have been involved in the bushfire efforts. Together with community agencies such as the St Vincent DePaul Society, the Red Cross, the Salvation Army and Adracare, they are working extremely hard to ensure that assistance is provided to evacuees and fire victims.

The Hon. DAVID OLDFIELD: My question is to the Minister for Mineral Resources, representing the Minister for Transport, and Minister for Roads. Is the Minister aware that on 17 October the Boat Owners Association of New South Wales supplied a legal opinion to Parliamentary Secretary Kevin Moss regarding the Minister's responsibility for the dredging and maintenance of navigation channels? Does the Minister acknowledge that expert opinion makes it clear that the Minister has ultimate responsibility for maintaining the safety of navigation channels outside ports, and that the Minister may be liable for such matters as injuries and oil spills resulting from any mishaps occurring through the Minister's failure to ensure safe navigation in channels throughout New South Wales, such as the channel at Swansea? Given the expert advice of Mr Michael Cranitch, SC, who is a specialist in maritime law, is the Minister still relying only on likely flawed advice from the legal manager of the Waterways Authority? Is the Minister concerned that, despite the seriousness of this situation and this advice also being given to the member for Swansea, the Boat Owners Association has not yet received a response from either the Minister or his Parliamentary Secretary?

The Hon. EDDIE OBEID: I am sure that safe navigation falls within the portfolio area of the Minister for Transport, in his capacity as the Minister responsible for waterways. Dredging falls within the portfolio area of the Minister for Land and Water Conservation. It is an important and detailed question, and I will seek a detailed answer from the relevant Minister.

The Hon. JOHN JOBLING: My question without notice is to the Minister for Mineral Resources, representing the Minister for Transport.

The Hon. Michael Egan: I thought you were going to ask me.

The Hon. JOHN JOBLING: Let us see how he handles it. Will the Minister advise the House of the terms of the memorandum of understanding for the upgrade of Burwood railway station signed by Transport NSW, State Rail, PlanningNSW and Burwood Council in July 2002? Will the feasibility and planning studies not be available until late 2003? Will the Minister advise the House which year the construction for the upgrade will commence and where any funds have been allocated in the State budget for this project—or is this a political stunt aimed at improving the failing election chances of the local Labor candidate?

The Hon. MICHAEL EGAN: I will take the question.

[Interruption]

I am not in a position to answer the question because, clearly, it is a detailed question and it was asked of the Minister for Mineral Resources, and Minister for Fisheries in his capacity as representing the Minister for Transport. I will therefore refer the question to the Minister for Transport for a detailed response.

The Hon. Duncan Gay: Why didn't you let Eddie answer it?

The Hon. MICHAEL EGAN: I simply wanted to take the opportunity to answer the Hon. John Jobling's last question in this House.

The Hon. Dr Brian Pezzutti: Madam President—

The Hon. MICHAEL EGAN: If the Hon. Dr Brian Pezzutti wants to ask a question, he will get a go as well. I have enjoyed answering the Hon. John Jobling's questions over the last almost eight years. Indeed, I first met the Hon. John Jobling at a seminar in Muswellbrook in about 1979 when I was representing the then Minister for Mineral Resources and Development, Ron Mulock. The then Mayor of Muswellbrook, the Hon. John Jobling, invited me to dinner. I must say that he had embarked on a great project, which was the restoration of a stately old home that had fallen into disrepair. It was a Herculean task that he had undertaken, and he was doing it with enormous success. I had a very enjoyable evening with the Hon. John Jobling and his wife that evening. Subsequently, of course, he became a member of this House.

Like me, the Hon. John Jobling had made many attempts to be elected to Federal Parliament years earlier. But for 200 votes, he would probably now be the Federal member for Paterson—the seat for which he stood in 1969. If he had taken 100 votes from the National Party candidate and been elected on that occasion he would probably still be in Federal Parliament. The Hon. John Jobling has certainly been a valued member of this House and a credit not only to Muswellbrook but to his party and the Parliament, both of which he has served very well. I am sorry that I am not in a position to give him a more detailed answer.

Ms LEE RHIANNON: I direct my question to the Treasurer, representing the Premier. Is the Treasurer aware of the comments of the Federal Attorney-General, Daryl Williams, on ABC radio yesterday? He said:

… when you look at what we have in our bill and compare it to what the NSW government is proposing in its bill you'll see that there are an enormous range of safeguards in ours that are not present in the NSW bill.

The Federal Attorney-General was referring to the Terrorism (Police Powers) Bill. In light of this information, will the Premier hold back on promoting the New South Wales model of fighting terrorism until it has been subject to the same proper and open parliamentary inquiries that the ASIO bill has been through?

The Hon. MICHAEL EGAN: The Hon. Lee Rhiannon has been in this place long enough to realise that she should not reflect on a vote of the House or on legislation passed by the House. The legislation to which she refers has been subject to debate in this House and the other place in the past week or so. It passed through this House last night, and I think it is very balanced legislation. We live in quite difficult times and we are subject to threats that we once thought would never emerge. It is very important to have in place safeguards that balance our civil liberties with our right to be protected from harm. I think the legislation that Parliament passed yesterday achieves that aim.

The Hon. Dr BRIAN PEZZUTTI: My question is directed to the Treasurer, representing the Premier. As months have passed since the completion of the Police Integrity Commission's Operation Malta hearings during which the inquiry heard serious allegations that senior former and serving police officers were derailing the reform process, when will the report be finalised and made public? Will the Treasurer assure the House that the report will be written by Judge Urquhart, who heard all the evidence, and not by someone else who did not hear all the evidence? Will the report be made public prior to the March 2003 State election?

The Hon. MICHAEL EGAN: I thank the Hon. Dr Brian Pezzutti for his question. I am not in a position to answer it but I will refer it to the Premier and obtain a considered and detailed response. I am pleased to have this opportunity of answering the Hon. Dr Brian Pezzutti's final question but I am sorry that it is his last. Tutti-Frutti has become almost an institution in this place. I think he made a number of attempts to enter the lower House.

The Hon. Dr Brian Pezzutti: One: Federal Parliament.

The Hon. MICHAEL EGAN: And I am sure he would have made a very good Federal member. He has certainly been a very good member in this place.

The Hon. John Ryan: He was beaten by Charles Blunt.

The Hon. MICHAEL EGAN: I would have voted Labor No. 1 and Tutti-Frutti No. 2 if I had been a constituent in that electorate at that time. The people of the Tweed River region, who missed out on having the Hon. Dr Brian Pezzutti as their Federal member, did the other citizens of New South Wales a favour in that he then became a Liberal candidate for the New South Wales upper House. Timing is everything in politics. We cannot do much about it: timing is a matter of luck. I think that if the Hon. Dr Brian Pezzutti had been in the other place at another time he would have been a very senior Minister. It was his misfortune that he has served in Parliament largely during a period of Labor ascendancy, and when there was a Coalition Government only a few ministerial spots were available in this House.

Like the Hon. John Jobling, the Hon. Dr Brian Pezzutti has had a distinguished parliamentary career. He has also had a distinguished career in other areas, such as the Army and medicine. We will all miss him. We will particularly miss his irascible temperament and his inane interjections. We look forward to seeing both him and the Hon. John Jobling playing a significant role in their new careers—whatever they may be—for the benefit of not only them and their families but the people of New South Wales.

If honourable members have further questions, I suggest they put them on notice.

The Hon. EDDIE OBEID: On 14 November the Hon. Don Harwin asked me a question without notice concerning caulerpa taxifolia control. I provide the following answer:

The Government has allocated $923,000 for better management of aquatic pests in NSW and some of this funding has been used to establish an aquatic pests taskforce that is working with local communities to bring the weed under control. Control of Caulerpa taxifolia is the taskforce's first and highest priority.

Since the discovery of Caulerpa in Burrill Lake, Lake Conjola and Narrawallee Inlet in 2001, NSW Fisheries has extensively mapped these areas using high tech underwater video technology to determine the extent of the outbreak.

Two information sessions on controlling Caulerpa were hosted by NSW Fisheries in October 2002 for community members on the NSW South Coast.

Salt treatments were applied in September to an area of high use adjacent to Lake Conjola Caravan Park, and on a patch on the western shoreline of Burrill Lake. In late November, a team of six divers, scientists and technicians began treating patches of Caulerpa in Narrawallee Inlet, using swimming pool salt.

Salt applications are planned in the near future in Lake Conjola and Burrill Lake. Monitoring is ongoing at all these sites.

NSW Fisheries has not separately calculated the costs of these specific measures, given that they form part of the overall initiative.

The Hon. EDDIE OBEID: On 3 December the Hon. Jennifer Gardiner asked me a question without notice regarding Hawkesbury River commercial fishing restrictions. I provide the following answer:

I am assuming the Honourable Jennifer Gardiner is referring to the new fishing rules that commence on January 17, 2003, as part of the estuary prawn trawl fishery management strategy.

I refer the Honourable Member to the Estuary Prawn Trawl Fishery Environmental Impact Statement. The document includes a socio-economic assessment of the estuary prawn trawl fishery and an extensive reference section.

The Hon. MICHAEL COSTA: On 31 October the Hon. Charlie Lynn asked me a question without notice regarding Lavington policing. I provide the following answer:

NSW Police advise:

The Lavington CBD is situated approximately five kilometres from the Albury Police Station, being the head station in the Albury Local Area Command. As at October 2002, the Command had an actual strength of 147.

I am further advised the Local Area Commander currently undertakes weekly tasking and deployment meetings to review crime, assign personnel to hotspots and target repeat offenders.

Police Accountability Community Teams (PACT) enable local communities to raise issues directly with their Local Area Commanders, including issues related to station operating hours and deployment of police resources.

Questions without notice concluded.

[The President left the chair at 1.07 p.m. The House resumed at 2.10 p.m.]

Reverend the Hon. FRED NILE, by leave: I wish to make a personal explanation. Yesterday according to Hansard the Hon. Peter Breen, whose acknowledged patron is my long-term opponent John Marsden, made a savage and unprovoked personal attack on my Christian faith and Christian values. He falsely accused me of making many comments and failed to acknowledge that I simply asked a question in the House about terrorism precautions. In his irrational attack on me and my constituents' newsletter, Family World News, the Hon. Peter Breen failed to acknowledge an important fact: that it was a special annual issue that is published each November that included reports of the persecution of Christians around the world as well as a recognition of the annual International Day of Prayer for Persecuted Christians on 10 November. I do not apologise for urging prayers for persecuted Christians or for reporting that the majority of cruel persecutions and brutal murders of both Asian and African Christians in the world are currently occurring at the hands of Islamic fanatics and Islamic terrorists in Indonesia, Pakistan, the Sudan, Nigeria and other nations. I thank honourable members for this opportunity to set the record straight.

Motion by the Hon. Michael Gallacher agreed to:

That standing and sessional orders be suspended to allow a motion to be moved forthwith that Private Members' Business item No. 108 outside the Order of Precedence, relating to the document entitled "WorkCover Fraud Investigation Manual", be called on forthwith.

Motion by the Hon. Michael Gallacher agreed to:

That Private Members' Business item No. 8 outside the Order of Precedence be called on forthwith.

Debate resumed from an earlier hour.

Reverend the Hon. FRED NILE [2.13 p.m.]: This motion calls for the following pages from the WorkCover Fraud Investigation Manual to be made available to the public:

(i) "The role of the fraud investigator" on pages 3 to 5,
(ii) "Recent initiatives" on pages 6 and 7,
(iii) "WorkCover or a Police prosecution?" on pages 53 and 54,
(iv) "Main offences: legislation and penalties at a glance" on page 55, and
(v) "The Legal Role" on pages 63 to 76.

This motion arises from an inquiry held by General Purpose Standing Committee No. 1, of which I am the Chair, into WorkCover, related matters and legislation. During that inquiry the Minister agreed to make available to the committee the WorkCover Fraud Investigation Manual. It was then tabled with the report on 5 September and made available for all honourable members to read at their leisure, so it is not a secret document. The Minister requested that the manual remain confidential and that the committee not make it available to the general public. Members of the crossbench are faced with the dilemma of whom to believe. The Leader of the Opposition said that the subject pages, if made public, would not have a detrimental effect on the work of the compliance division of WorkCover. On the other hand, the Government has made out a strong case to the contrary.

The WorkCover manual is not an Australian Labor Party document or a Coalition document. Many manuals are used in many ways by various departments—Health, Education, et cetera. The Government in principle approves the operations of WorkCover but has not checked every word in the manual as to whether it is politically correct or whether it would convey the wrong impression if made public. If we make such internal departmental documents public, especially those that deal with fraud, units may be thwarted in their efforts to deal with investigations. Manuals are provided as a guide to investigators and can be used by new investigators as an orientation tool to help them carry out their duties. Indeed, many manuals are written with that purpose in mind.

The Government's argument is persuasive that the pages in the motion do not refer to individual cases but reveal the strategy or tactics followed by the compliance unit of WorkCover to tackle fraud and would give an advantage to the lawyers of people charged with fraud. It could also assist people who have not been charged with fraud to follow a procedure to avoid being charged with fraud. I understand that the Leader of the Opposition believes that making the pages public will reveal that the Government is not as tough on fraud as it should be, but that is a subjective judgment. I know that the Opposition has been critical of the Government in the way it deals with employer and employee fraud. On the other hand, making the pages public may inhibit investigators in their fraud inquiries.

In my simplistic view, if the pages are not made public there can be no adverse effect because the status quo remains. However, if they are made public they may jeopardise investigations—and the Leader of the Opposition agrees—but that is another subjective judgment. However, we may later find that making those pages public has made it more difficult for investigators to carry out their role or to secure successful prosecutions because that material was available to the legal representatives of the alleged offenders. I was influenced by the sentence in the Government's briefing paper that states:

Publication of the extracts of the manual is not in the public interest because it would help people undertaking fraudulent activity to manipulate and game the system and undermine the integrity of fraud investigation by WorkCover and the Police Service.

That is a very strong argument. Subject to any other evidence, we accept that proposition at this stage. Therefore, we cannot support the motion. Although we are getting to the end of the parliamentary session, I believe that the Leader of the Opposition has other ways and means of pursuing his concerns, which I believe are genuine, about achieving successful prosecutions.

The Hon. MICHAEL GALLACHER (Leader of the Opposition) [2.20 p.m.], in reply: I thank all honourable members who contributed to the debate. If I heard the Special Minister of State, and Minister for Industrial Relations correctly, he said he was quite relaxed—or not concerned—about sections of the document being released, or words to that effect. I look forward to reading Hansard tomorrow to get an exact interpretation of what he said. Be that as it may, I thank him for his contribution and his interjections, which seemed to be supportive. The Hon. Malcolm Jones and the Hon. Dr Arthur Chesterfield-Evans were prepared to consider what I put to the House in the debate. With all due respect to Reverend the Hon. Fred Nile, his contribution was disappointing, although he was in the fortunate position of having the chance to review the sections of the document I have requested—and I made reference to that.

The Hon. Malcolm Jones asked the Minister whether he would make sections of the document available, and I am told that they have been made available. As the Chair of General Purpose Standing Committee No. 1, Reverend the Hon. Fred Nile has a copy of the document in his office. I am disappointed that he made a contribution without reading the sections of the document that I have requested. It would have been appropriate for him at least to go and do the work before making a contribution. I note that reference was made to the general purpose standing committee. One point I made in my earlier contribution was that, in seeking the release of sections of the document, I was seeking clarification of the Government's position in terms of whether WorkCover should proceed under the Crimes Act or the Workers Compensation Act.

Unfortunately, Reverend the Hon. Fred Nile has forgotten one of the committee's recommendations. General Purpose Standing Committee No. 1 recommended that the Government should proceed under the Crimes Act with regard to workers compensation fraud. So the position I have adopted is at least consistent with the position adopted by General Purpose Standing Committee No. 1. I do not believe the Government has effectively or, indeed, successfully proved its case that release of these sections of the document will be detrimental to the scheme. The onus was on the Government to prove its case. With all due respect to the Minister, I do not believe that his contribution provided clarity or certainty with regard to how the information I have requested would be in any way detrimental to the workers compensation scheme.

The veil, in terms of the damage that releasing sections of the document will cause to the scheme, is very thin. The truth is that after I brought this matter to the Government's attention it recognised the likelihood of embarrassment to it and concern among the various sectors involved in the workers compensation scheme. For that reason, I believe that the Government's position on fraud investigations will continue completely unchecked. The Government has not been prepared to consider serious attempts at fraud investigation in New South Wales. Again, with only three fraud investigators in New South Wales, how can the Government be serious about fraud investigation? I commend the motion to the House.

Question—That the motion be agreed to—put.

The House divided.

Dr Chesterfield-Evans Mrs Forsythe Mr Gallacher Miss Gardiner Mr Gay Mr Harwin

Mr M. I. Jones Mr Lynn Mrs Pavey Mr Pearce Mr Ryan Mr Samios

Dr Wong Tellers, Mr Colless Mr Jobling

Mr Breen Ms Burnswoods Mr Cohen Mr Costa Mr Della Bosca Mr Dyer Mr Egan Mr Hatzistergos

Mr R. S. L. Jones Mr Kelly Mr Macdonald Reverend Dr Moyes Reverend Nile Mr Obeid Ms Rhiannon Ms Saffin

Mrs Sham-Ho Ms Tebbutt Mr Tsang Tellers, Ms Fazio Mr Primrose

Dr Pezzutti

Mr West

Question resolved in the negative.

Motion negatived.

Motion by the Hon. Dr Arthur Chesterfield-Evans agreed to:

That standing and sessional orders be suspended to allow a motion to be moved forthwith that Private Members' Business Item No. 88 outside the Order of Precedence relating to the Quarantine Station Preservation Trust Bill, be called on forthwith.

Motion by the Hon. Dr Arthur Chesterfield-Evans agreed to:

That Private Members' Business Item No. 88 outside the Order of Precedence be called on forthwith.

Bill introduced and read a first time.

Motion by the Hon. Dr Arthur Chesterfield-Evans agreed to:

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

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [2.34 p.m.]: I move:

That this bill be now read a second time.

As recently as yesterday the Premier was trumpeting the Government's green credentials. That will intensify and amplify as the election draws nearer. Rather than the Government having green credentials it is, unfortunately, in the grip of a "Carrgo" cult. When a developer comes along with a plan to save the Government money it is as though gifts have fallen from the sky. That has been evident in the Government's reluctance to spend money on rail infrastructure for the growth of the north-west sector; it wants to put in a tollway. It has been in full swing at Cooks Cove in Sydney's south where a shiny new marina and shopping complex will replace a golf course, sports fields and environmentally sensitive wetlands.

The quarantine station is situated at Manly on the edge of North Head. It forms part of Sydney Harbour National Park and is the largest area of unalienated bushland on the Sydney Harbour foreshore. It is the site of historical, natural and Aboriginal significance to all Australians. It is of international significance in the same way Ellis Island is to Americans. The site plots the history of Australia from pre-European occupation, through colonial times, through two world wars, to the advent of aircraft, to the present day. The site contains 66 buildings dating back to the 1830s. There are more than 1,500 rock engravings of Aboriginal, European and Asian origin.

The Aboriginal occupation of the Sydney Basin is estimated to have commenced some 20,000 years ago. Evidence of Aboriginal occupation dates from the glacial flooding that formed Port Jackson 6,000 to 8,000 years ago. The area was occupied by the Kameragal clan, who spoke the Guringal language. The site on North Head suggests the area was used for occupation, food gathering, recreation and formal ceremonies. There are many examples of rock art in the caves around the area. The first meeting between Governor Phillip and Aborigines occurred in January 1788 in Spring Cove. It is yet another example of how important the site is.

I seek leave to incorporate the remainder of my speech in Hansard.

Leave granted.

The purpose of this bill is to retain the area known as the Quarantine Station as a public asset and to create a Trust to control its maintenance and use.

The object of the bill is to revoke the reservation of the Quarantine Station as part of the Sydney Harbour National Park and to vest the land in a new Trust to be constituted by this bill.

The new trust will be similar to the Royal Botanic Gardens and Domain Trust.

The objects of the Trust contained in clause 6 of the bill are:

• to maintain and improve the trust lands
• to encourage the use and enjoyment of the trust lands by the public by promoting the recreational, historical, scientific, educational and cultural heritage value of those lands
• to ensure the conservation of the natural and cultural heritage values of the trust lands and the protection of the environment within those lands.

The Quarantine Station area is presently in an area known as Sydney Harbour National Park. Ownership of the Quarantine Station site was transferred back to the State Government in 1984 from the Commonwealth. It is an area of historical and cultural significance encompassing some 66 buildings.

The bill seeks to preserve the historic, aboriginal and natural heritage of the site in conjunction with the surrounding area of the North Head section of the Sydney Harbour National Park. The current operations at the site provide conference and function facilities, tour activities and overnight accommodation for the public. There are also maintenance and administrative facilities for the local National Parks and Wildlife Service operations. Some NPWS staff also stay overnight on site in a caretaker role.

The bill will create a five member Trust to manage the site and membership of the Trust will include representatives of the National Parks and Wildlife Service, The Heritage Council, the local aboriginal community, and the general community.

It is important that adequate funding to be provided to properly maintain all the buildings on the site and the historical and natural heritage. The Historic Houses Trust Act 1980 in Part 4 legislates for an endowment to be paid by the Treasurer to the Trust for specific expenditure. Similar secure funding should be provided for the Quarantine Station site for the proper maintenance of its historic, aboriginal and natural heritage.

Provisions for leasing any part of the site include retention of public control and accord with the significance of the site and not exceed 10 years. The proposed content of any lease must be publicly exhibited for thirty days and public comments on the lease proposal taken into account by the trustees. There is also a provision in clause 12 (2) of the bill that no one person or company can lease the whole of the site.

It is imperative that sites such as the Quarantine Station, which could become an international historical tourist attraction, be preserved by the NSW Government on behalf of the people of Australia.

A site with such significance to the history of Australia cannot be given over to private interests. The reason for the Governments reluctance to embrace the Quarantine Station site comes down to money. There are 66 buildings on the site of varying ages, some in need of urgent repair. National Parks seem to focus their priorities on the plants and animals on the site, rather than the historical aspects of its brief.

The solution proposed by Government, with the active support of the NPWS is to have a private developer, Mawland Hotel Management Pty Limited take the responsibility for the maintenance of many of the buildings on the site, and run a conference centre. There was a lease agreement prepared by Mallesons Stephen Jacques Solicitors dated 24 January 2000 between the Minister for the Environment as lessee and Mawland Hotel Management Pty Limited as tenant and Maxwell Player as Guarantor.

The lease outlines Mawlands obligations to refurbish and maintain many of the buildings on the site.
The cost in the lease of totally developing the buildings it proposed to lease was $3,254,000. National Parks and Wildlife Service estimated in 1998 that a minimum of $5,000,000 is required in the short to medium term to conserve the heritage values of the site and provide limited public access. This may seem to be a large amount of money, but it terms of preserving what is a unique chronicle of Australian history it is not.

The danger of having a private developer who is profit driven having charge of heritage buildings is that money will not be available for their proper preservation.

It would be very easy for the lessee to say they cannot afford to spend the money, as it would be uneconomic. Money would be spent on facilities that would produce an income stream, such as accommodation and conference facilities and preservation of buildings of purely historical value would pass by the way! History will not be saved or served by private developers. This is the business of the Government of the day representing the people of NSW and Australia.

Quarantine Station History

Aboriginal heritage

Aboriginal occupation of the Sydney basin is estimated at some 20,ooo years ago. Evidence of aboriginal occupation dates from the glacial flooding, which formed Port Jackson 6-8000 years ago. The area was occupied by the Kameragal Clan, who spoke the Guringal language. The sites on North head suggest the area was used for occupation, food gathering, recreation and formal ceremonies. There are many examples of rock art in the caves around the area. The first meeting between Governor Phillip and aborigines occurred in January 1788 in Spring Cove. This is yet another indication of how important the site is.

Natural Heritage

The Site is home to home to a stunning array of animals birds reptiles and marine life. There are two endangered species, which inhabit the area, being the little penguin and the long nosed bandicoot. There are 5 species listed as vulnerable being the red crowned toadlet, the sooty and pied oystercatcher, the superb fruit dove and the swift parrot.
The plant life includes remnant rainforest.

Early European phase 1828-1837

It was first used to quarantine people in 1828 when the "Busserah Merchant" was detained in Spring Cove because the passengers were found to have both smallpox and whopping cough. The more healthy passengers were housed in tents on shore and the sick were contained on board ship. In 1832 Spring Cove at North Head was declared a Quarantine Station by Governor Bourke. In 1837 the area was extended to include the whole of North Head. During the quarantining of the "Lady Noughton" in 1837 the first permanent weatherboard structures were erected.

Immigration Phase 1837-1872

Free immigration began to dominate the passenger lists from 1837 onwards. From 1853 there was a building program put in place with accommodation barrack, hospital ward and superintendents cottage being built.

Class defined accommodation 1873-1880

Building during this phase was dominated by segregation of buildings into the classes of passengers on ships. Therefore you had first, second and third class accommodation. These also reflected the health of passengers, first being the healthiest.

Board of Health Phase 1881-1909

There was a severe outbreak of smallpox in 1881, which heightened the awareness of the quarantine issue. The Site was administered by the board of health during this phase and considerable money was spent on buildings.

Commonwealth Phase 1909-1950

The Commonwealth enacted the Quarantine Act in 1908 and took possession and responsibility for the site in 1909.The major accommodation block was built in 1911-1912. The laboratory and mortuary were built in 1916. The present wharf area was laid out between 1913 and 1917. During the 1914-18 war it was used for military quarantine and in 1919-20 for a flu epidemic. During the Second World War it was used for soldiers returning from the war and British evacuee children.

The Aviation Phase 1950-1983

Many people coming from overseas and the site was heavily used again. In 1957 there was a major program of refurbishment with many buildings repaired, demolished and renovated.

By the 1970s there was not much use made for the station. 1974 saw the last ship to be quarantined, the "Niki Maru". 1975 saw the station used to house the housing refugees from Cyclone Tracy. The buildings gradually fell into disrepair. In 1983 there was a revival with the establishment of the Quarantine Station restoration Trust, funded through the Community Employment Program.
State Government Control Phase 1984-

In 1975 Sydney Harbour National Park was established to include lands at North Head, Dobroyd Head, Bradleys head, Shark Island and Clark Island. In 1979 more defence land was added to the park. The most recent additions were that of Fort Denison and Goat Island in 1995. In 1984 the ownership of the Quarantine Station site was transferred back to the State Government and added to the Sydney Harbour National Park. National Parks and Wildlife Service took control of the site at this time and in 1987 began operating a conference centre. Visits to the site at present stands at about 8,500 per year.

In August 1997 the Premier presented a Vision Statement for the future of Sydney Harbour Foreshore. The guiding principles were:

• Maximise public access to, and use of land on the foreshore.
• Land made available for public access and use should be retained or placed in public ownership.

Plans of Management and Leasing of the Site

The National Parks and Wildlife Act 1974 requires that a plan of management is prepared for each nature reserve.

A draft conservation plan, as it was known then, was produced in 1987. A conservation Plan was adopted in 1991 following submissions and review of the 1987 Draft Plan. After that time there was an Expression of Interest Assessment Committee formed and they took tenders for development of the site and commissioned reports on the condition of the buildings and infrastructure.

There was nothing decided about the future development of the site during this time. In 1996 there was produced a new draft plan of management of the entire Sydney Harbour National Park, of which the Quarantine Station is part. Tenders for the Quarantine Station were called for in 1996.

In April 1998 the Tender Board endorsed the tender of Mawland Hotel Management as the preferred tender. The Management plan was signed off on in 1998 and released for public comment in 1999.

In June 1998 the Minister for the Environment signed a negotiation agreement with Mawland. Manly Council formally objected to the proposed leasing arrangements for the first time and sought termination of the process.

In the final meeting of the tender board in January 1999 Mayor Sue Sackar and Deputy Mayor Dr Peter McDonald announced their resignations from the Board. In February 1999 the Minister gave approval for the grant of a conditional agreement to lease. That lease was signed on the 24 January 2000.

The Heritage Council endorsed the North Head Quarantine Station Conservation Management Plan in April 2000, after ruling in mid 1999 that the Plan was unsatisfactory.

Mawland produced a draft master plan and draft access strategy in 2001, which was endorsed by the NPWS. In 2001 an EIS was prepared and exhibited.

The EIS produced so many responses that Mawland and NPWS (in itself a questionable situation) decided to call a Commission of Inquiry (COI) to process all the responses. In July 2002 the COI produced its report. It found surprisingly, that there were no major environmental reasons why the proposal could not proceed. Mawland and NPWS, now firmly in partnership, put out a joint response to the COI called the "Preferred Activity Statement" (PAS)

The Present

The PAS has now been sent to the relevant determining authorities to decide whether they approve of the proposed activities in the PAS. The authorities are the NPWS, Heritage Council and Planning NSW. It is expected that this consent process will conclude in December 2002.

This is why this bill is important. This is the imminent sell off of our Nation's history. Our history must be saved.

I commend the bill to the House.

Debate adjourned on motion by the Hon. Peter Primrose.

The Hon. IAN MACDONALD (Parliamentary Secretary) [2.38 p.m.]: I move:

That this bill be now read a second time.

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

Leave granted.

This bill amends the Defamation Act 1974 to give effect to the principal recommendations of the report of the Attorney General's Task Force on Defamation Law Reform, which was released in July of this year.

The main focus of the amendments is to strike a balance between the free flow of information of matters of public interest and importance, and the protection of reputation. The amendments are both procedural, and involve changes to the substantive law.

Broadly speaking, the aims of the amendments are:

• To provide effective and appropriate remedies for those whose reputations are harmed by the publication of defamatory material;

• To ensure the law does not place unreasonable limits on the publication and discussion of matters of public interest and importance;

• To promote speedy and non-litigious methods of resolving disputes; and

• To avoid protracted litigation wherever possible.

To emphasise the importance with which the Government regards these aims, they will form a statement of objects to clarify the purpose of the Act.

The inclusion of such a statement will send a clear message that the Defamation Act should not be interpreted in a way which unreasonably limits discussion on matters of public importance, and that litigation should be considered to be a dispute resolution method of last resort.

A clear priority of these proposed amendments is to divert those cases that can be dealt with by other means away from extended litigation. In order to achieve this aim, the bill inserts a new part into the act, entitled "Resolution of Disputes Without Litigation". As the title suggests, the object of this part is to encourage the early settlement of disputes involving the publication of defamatory matter. I am strongly of the view that the speedy and public vindication of a person's reputation, through a revised and strengthened offer of amends procedure, is the preferable way to resolve defamation cases. The Defamation Act currently provides for an offer of amends process, but it is not being used extensively. This appears to be because it is only available in respect of innocent publications and because it may be difficult to comply with some of the practical requirements of the process.

Proposed section 9D sets out how the new process for making offers of amends will work. A publisher will be able to make an offer of amends to a person aggrieved by a defamatory or purportedly defamatory statement. The offer must include a number of elements, including an offer to publish a reasonable correction and apology, and an offer to pay the expenses reasonably incurred by the aggrieved person. The publisher may also decide to include an offer to pay compensation in appropriate cases.

Any offer must be made within 14 days of the publisher being told by the aggrieved person that the matter in question is or may be defamatory or within 14 days of the publisher serving a defence to an action for defamation on the aggrieved person. I have no doubt that, in a fair proportion of cases, the initial offers of amends will be largely acceptable to aggrieved parties, but will require some negotiation and fine tuning before they can be reasonably accepted. For this reason, the bill provides scope for negotiations to continue beyond the 14 days, provided any renewed offer of amends represents a genuine attempt by the publisher to address matters of concern raised by the aggrieved person about an earlier offer.

The bill ensures that once a publisher performs its part of a settlement offer, including paying any agreed compensation, the aggrieved person cannot begin or continue a defamation action. Further the bill provides that it will be a defence to an action in defamation if the publisher made an offer of amends that was not accepted, that offer was reasonable in the circumstances, it was made as soon as practicable after the publisher became aware that the publication in question may have been defamatory, and the publisher was ready and willing to perform the offer before the trial.

As a further incentive to settle defamation proceedings before they reach the courts, the bill provides that costs penalties will apply to an unreasonable failure to resolve a matter.

The normal costs rule is that the successful party recovers costs on a party-party basis. Typically, this amounts to about 60 to 80% of their actual legal costs. Both the Supreme and District Courts have a general discretion as to the amount of costs to be paid by parties, including the award of indemnity costs. Indemnity costs are usually awarded where there has been a flagrant breach of procedural rules by the unsuccessful party and can amount to 80 to 90% of actual costs. In practice, indemnity costs are seldom awarded.

The bill adds section 48A to the Defamation Act which requires the court to consider an order for costs on an indemnity basis where it forms the view that there has been an unreasonable failure on the part of either the plaintiff or the defendant to resolve the matter. For example, a plaintiff would be at risk of an indemnity costs order if he or she were not to accept an offer of correction or apology where the offer was reasonable. A defendant would be at risk of an indemnity costs order were it not to make a settlement offer when it would have been appropriate to do so.

There is understandable concern about wealthy parties, whether plaintiffs or defendants, using their deep pockets to wear down opponents of modest means to discourage them from continuing, or indeed even commencing, defamation proceedings for fear of a ruinous costs order. It is not unheard of, for example, for property developers to commence proceedings known as SLAPP (Strategic Lawsuits Against Public Participation) suits against individuals or community groups to silence their opposition to a proposed development. There is also anecdotal evidence of some wealthy individuals pursuing every procedural avenue open to them despite the prospects of success being slim and despite their legal fees far outweighing any potential damages award. The object in such cases is to intimidate the defendant into settling the matter at the risk, however slight, of losing the case and being subject to a large costs order. Such tactics can have the serious consequence of either constraining free speech or allowing a reputation to be irreparably damaged.

While the addition of section 48A(2) into the Act will provide greater discretion to a judge in awarding costs in instances where parties have been recalcitrant than currently exists, section 48A(1) makes it abundantly clear that in awarding costs the court may take account of the way the parties have conducted their case. The court will be able to take into account such matters as whether either party has used their significantly more powerful financial position in a way that hinders the effective discharge of justice.

In keeping with the Government's objective to ensure the Defamation Act promotes the right balance between the free flow of information of matters of public interest and importance, and the protection of reputation the bill inserts a new section 8A that provides a corporation does not have the right to sue for defamation.

The law of defamation rightly protects reputation and the interest which individuals have in their honour, dignity and standing in the community. A corporation's interest in reputation, on the other hand, is purely financial. When corporate bodies are defamed, there are other possible actions available to them such as the torts of injurious falsehood or passing off, as well as remedies under the Commonwealth Trade Practices Act for misleading and deceptive or unconscionable conduct.

While the remedies available to corporations under the Trade Practices Act would ordinarily be against their commercial rivals rather than against media organisations, there is sufficient protection available to corporations to safeguard their economic interests. Unlike most individuals, these organisations frequently have the ability to engage in counter advertising and to run effective publicity campaigns to protect their public profile.

Of course, small, family-run businesses will not have the same resources as large companies to pursue counter-advertising or publicity campaigns to protect their reputation. Small, family companies, however, are almost always inextricably linked to the individual directors running them, and the bill makes it clear that individual members of corporations will still be able to sue in their own right, rather than in the company name. This will apply in every case where an individual is personally defamed, regardless of whether the corporation is large or small.

I note that while the bill provides that corporations (including those constituted for a governmental or other public purpose) will no longer be able to sue for defamation, local councils and government departments have not been able to sue for defamation since 1994 when the Court of Appeal handed down its decision in Ballina Shire Council v Ringland which followed an earlier decision of the House of Lords in Derbyshire County Council v Times Newspapers.

The current section 22 of the Defamation Act provides a defendant with a defence of qualified privilege when certain conditions are met, including when the conduct of the publisher was reasonable in the circumstances. There are currently no criteria set out in the act to provide guidance on what is reasonable and I appreciate that publishers need a practical means of interpreting what is, and is not, reasonable. Accordingly, the bill adds section 22(2A) to the Act which sets out the factors that a court may take into account when determining whether a publisher has acted reasonably. These factors include: the extent to which the matter published is of public concern; the extent to which the matter published concerns the public functions or activities of the plaintiff; the seriousness of the imputations; the extent to which the matter distinguishes between facts, suspicions and allegations; whether it was necessary for the matter to be published expeditiously; the sources of the information and the integrity of those sources; and any attempts to verify the information or to get the plaintiff's side of the story.

The Defamation Act currently includes a defence relating to the publication of fair protected reports. Schedule 2 of the Act explains that protected reports relate to reports on the public proceedings of parliament, courts, and other public bodies. In the interests of greater clarity and certainty about the scope of protected reports, the bill inserts a new section 25A into the Act which extends protection to accurately reported third party statements. Specifically, this includes the publication of reports of media conferences given, or media releases issued, by or on behalf of public officials or public authorities in their official capacities. The new section also protects subsequent reports based on earlier reports of media conferences, if the person making the subsequent report is not aware that the earlier report is unfair.

To encourage plaintiffs to seek to vindicate their reputations at the earliest possible opportunity, the bill will insert a new section 14B into the Limitation Act 1969. The new section will shorten the limitation period for bringing a defamation action from six years to one year, with a discretion to extend the period in appropriate cases. To ensure that the one year limitation period is not extended by the courts to an unreasonable extent, the bill provides for a new section 56A of the Limitation Act which enables the court to extend the limitation period where the interests of justice require, to a maximum of three years from the date of publication.

Finally, a significant number of defamation actions are now heard in the District Court, as well as in the Supreme Court. Last year 48 claims for defamation were filed in the District Court, while 62 claims were filed in the Supreme Court. To ensure consistency between the availability of juries in the District and Supreme Courts, the bill will insert the equivalent of part 6 division 2 section 86 of the Supreme Court Act into the District Court Act. This will ensure that juries will continue to be involved in defamation actions in the District Court, unless the court orders that any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury, or unless all parties consent to the order.

I commend the bill to the House.

The Hon. GREG PEARCE [2.38 p.m.]: I lead for the Opposition on this bill, which the Opposition generally supports. The reform of defamation law in New South Wales is in the public interest. That is especially so in relation to encouraging the settlement of disputes in a timely and cost-effective manner and attempting to strike a better balance between the democratic imperative of freedom of speech and the free flow of information and the rightful maintenance of an individual's reputation. The bill generally implements the recommendations of the Attorney General's task force on defamation law reform. The Coalition supports the bill but intends to move amendments to it. The first of those amendments relates to the rights of small business. Although the bill takes away the right of corporations to sue for defamation, the Coalition believes that a small business, particularly a family-based business, could be adversely impacted by the taking away of that right. We will move an amendment in relation to that.

The Coalition supports also the change to the limitation period provided by the bill as well as other parts of it. A little while ago I was handed a copy of amendments that the Government proposes to move. It is regrettable that again the Government has failed, until the last minute, to consult on a bill of this importance. From a quick look at the Government amendments, it seems they will address a number of significant concerns that the Opposition had about the bill and in particular some defects in the way in which it will operate. I will not deal with those now, because they will be dealt with in Committee. The Coalition will support the bill with amendments.

Reverend the Hon. FRED NILE [2.40 p.m.]: The Christian Democratic Party supports the Defamation Amendment Bill. It has been a long time coming, and we are pleased it is now before Parliament. It will amend the Defamation Act 1974, the District Court Act 1973 and the Limitation Act 1969. The bill results from the report of the Attorney General's task force on defamation law reform, which was released in July this year. The bill is aimed at striking a balance between the free flow of information on matters of public importance and interest and the protection of reputation.

I have first-hand experience with this State's defamation laws. I have been involved in a number of cases over the years, thankfully not many in recent times. Prominent among those was a case in which I was sued by the Chief Censor of the Australian Film Censorship Board for criticising her actions in releasing the film Hail Mary. That long, drawn-out case cost me tens of thousands of dollars. With legal and other costs, the figure was nearly $89,000. I had good lawyers, who indicated that it is very difficult to defend a defamation case and that, under the laws to be amended by the bill, a defendant is vulnerable because the person suing only has to sustain an argument that the statements complained of taints the person's reputation with public contempt and odium. That is a subjective test.

In another case I was sued by George Petersen when he was the member for Illawarra. That case related to remarks I made on the ABC which made no reference to any individual. I am usually careful in what I say because I know how the defamation law works. In that case it was argued that, by implication, I was referring to Mr Petersen even though I did not mention his name. That case was settled out of court, as was the previously mentioned case, at the request of both Janet Strickland and George Petersen. But that is after a lot of money is spent on solicitors and other legal fees, with potential costs of up to $250,000 when a case goes for a number of days in the Supreme Court. If the case is lost there, one has to pay a huge amount in legal expenses as well as any damages awarded to the plaintiff. So I am enthusiastic about any reform of the defamation laws of this State that makes them fairer and unable to be abused.

One aspect of the Janet Strickland case that disturbed me related to a letter that I sent out asking for prayer and support. Somehow she got a copy of that letter and used it to ground a claim for aggravated damages. So cases can become more and more serious at an accelerating rate. Apparently, you must suffer in silence; you should not even talk about something. One could say she had me by the throat on that occasion. So I am pleased to support the bill in the hope that it will bring much more fairness and justice to our system in the future, and provide for freedom of speech.

The Hon. RICHARD JONES [2.44 p.m.]: A bill that addresses the problems associated with defamation laws is long overdue. The figures confirm that Sydney is the defamation capital of the world, with one writ in New South Wales for each 79,000 of population. That is higher than England, with one per 121,000, and far higher than the United States of America, with one per 2.3 million. There were 87 defamation matters dealt with by the New South Wales courts in 1999, 107 in 2000 and 102 last year.

In New South Wales truth alone is an insufficient defence. A public interest test must also be satisfied. This is one of the easiest elements to satisfy, as even greyhound racing has been held by the courts to be in the public interest. Perhaps the high rate of defamation proceedings initiated in New South Wales has something to do with that. It should be noted that in South Australia truth by itself is a complete defence, regardless of how damaging a statement may be to a person's reputation. South Australia has dealt with only 26 defamation matters in the past 23 years, the Australian Capital Territory has dealt with 27, Victoria with 21, Queensland 19, Western Australia 14, Tasmania 8, and the Northern Territory 6. In comparison, New South Wales courts have dealt with 79 defamation cases.

New South Wales is the only State with million-dollar payouts. In the past 23 years the courts have awarded the following approximate figures in damages: in the Australian Capital Territory $2.85 million, in Victoria $2.15 million, in Queensland $2 million, in South Australia $1.5 million, in Western Australia $580,000, in the Northern Territory $160,000, and in Tasmania $88,000. In New South Wales the figure is astronomical—$16.4 million.

The Premier told a gathering at the Sydney Institute on 9 July that a general damages cap of $350,000 for defamation cases would be provided for in the legislation. However, the bill that we are now debating does not provide that cap. I anticipate that the Government will argue that in effect section 46A of the Act already provides that compensation for non-economic loss for defamation cases will be kept in line with that given in personal injury cases. Section 46A provides that:

... in determining the amount of damages for non-economic loss to be awarded in any proceedings for defamation, the court is to take into consideration the general range of damages for non-economic lost in personal injury awards in the State.

While that offers some assistance, it does not explicitly provide what the Premier indicated on 9 July would be included in this bill. He stated then that there would be a cap on general damages. Section 46A does not cap damages; it merely offers guidance. The Premier said:

... too often damages awards for loss of reputation (non-economic loss) are excessive... We will provide that compensation for non-economic loss will not exceed payouts in personal injury cases—that is $350,000.

I wonder what happened to that promise. The Premier's press release of the same day said:

The NSW Government will undertake a comprehensive reform of the State's defamation law, including limiting payouts for non-economic loss to $350,000.

Those are the words of the Premier. The recent passing of the Civil Liability Amendment (Personal Responsibility) Bill shows that the Government clearly believes that it is all right to have statutory caps on general damages for personal injury but this is not the case for so-called loss of reputation. Apparently it is acceptable for people who have lost their arms or legs, or stumbled on an uneven footpath, or suffered mental debilitation in the course of their employment to have their damages capped. By not capping defamation payouts are we, by assumption, saying that someone's reputation is worth more than that?

For many years it has been acknowledged that reform of defamation laws is long overdue. Quite justifiably, concerns have been expressed at the size of awards made in defamation cases, the complexity of the law and the lack of uniformity between jurisdictions. The system is fragmented and open to abuse by plaintiffs who believe that they can save their reputations if they receive fat payouts. Defamation laws should not be used simply to achieve economic ends, which in many cases they are. Apparently, this is currently the norm.

The public liability insurance crisis has prompted a push for reforms such as caps on damages for physical injury caused by negligence. It is surely incongruent to have defamation laws where sky's-the-limit payouts are possible. In July the Premier acknowledged that this needed to be addressed. I am sorry that the Government does not have the courage to follow through now. In a 10 October 2001 submission to the Attorney General on reforms to the New South Wales defamation laws the Press Council noted:

In New South Wales, for some personal injury and compensation matters, there is legislative guidance on the sums that can be awarded. The Court of Appeal has also provided lower courts with guiding principles for sentencing and the award of damages in some cases. The principle of comparability should prevail. Similar amendments to legislation and guiding principles on the award of damages in defamation actions... [would] lead to more realistic trade-offs between the costs of going to trial and settlement of actions.

The details of damages in defamation trials in each State and Territory of Australia over the past 23 years listed by the Gazette of Law and Journalism make interesting reading. New South Wales is the only State with $1 million or $500,000 payouts. One example is the famous Erskine v John Fairfax Group Pty Ltd, in which $2.5 million was awarded to Sydney entrepreneur James Erskine when the Sydney Morning Herald reported allegations made under oath in an affidavit.

The system in the United States provides that plaintiffs who are public figures must prove malice, that is, knowledge or recklessness as to falsity. The statistics relating to the number of writs issued per person clearly show the benefit of the American system. The Americans, despite their litigious reputation, create fewer than twice the writs issued in New South Wales, even with a population some 40 times greater. This is extraordinary. Compare the $2.5 million that was awarded to James Erskine with the maximum compensation payable for any injury under the statutory scheme for victims of crime, which is $50,000, and $350,000, which is the maximum compensation for non-economic loss under the Civil Liability Act 2002.

Non-economic loss, or general damages, covers emotional hurt, damages to personal relationships and professional standing. If the plaintiff can prove economic loss demonstrably related to the defamation, that figure is recoverable in addition to the general damages. Currently, plaintiffs in New South Wales rarely bother to prove economic loss, being content with the generosity of general damages. Capping damages has attracted a lot of attention. In 2000 the average defamation award was $233,000. Figures provided by the Communications Law Centre show that in New South Wales 73 per cent of plaintiffs are men, 8 per cent are women, and 19 per cent are corporations. These figures are similar to the United States figures, which are 72 per cent for men, 14 per cent for women and 14 per cent for corporations.

In New South Wales media, arts and sports people are the plaintiffs in 14 per cent of cases, and politicians are plaintiffs in 15 per cent of cases. In the United States politicians are the plaintiffs in only 4 per cent of cases and media, arts and sports people in 6 per cent of cases. It is essential that we change the laws to provide that the law of defamation is not regarded purely as a means of recovering damages. Plaintiffs should seek published clarifications, corrections and apologies. Roy Baker from the Communications Law Centre notes that capping damages and costs is a measure that plays with the symptoms rather than the causes. He said:

High costs stem from the law's systemic failings, mired as defamation is in fruitless technicalities of pleading.

While that is certainly true, he and many others note that there is clearly no reason why defamation plaintiffs should be favoured over personal injury plaintiffs when it comes to damages. It does not make sense. Defamation law already favours plaintiffs hugely by beginning with the presumption that publications which damage reputation cannot be defended. Given that this presumption works in the plaintiff's favour, how can it be justifiable to also presume that the plaintiff has suffered harm and use that as the basis for compensation that is inappropriately disparate?

The amendments that I will move at the Committee stage will provide that damages in defamation cases shall not exceed damages that are payable in personal injury cases, that is, $350,000. That is what the Premier promised last July. I thank particularly Roy Baker from the Communications Law Centre, Richard Ackland from the Law Press for their input, and Christine Black for her work on the legislation. I commend the bill, with the amendments I will move at the Committee stage, to the House.

The Hon. IAN COHEN [2.53 p.m.]: The Greens have serious concerns about this bill. By saying that we are probably flying in the face of the opinions of most members of this House who seem to welcome it. Having gone through a number of defamation cases and having won an out-of-court settlement from the Daily Telegraph over an article by Piers Akerman, I well know the fear of members of the general public when dealing with large corporations and the inherent unfairness in the capping of damages. An example is Mr John Marsden, who, although representing a different perspective to that of many members of this House, nonetheless was badly done by because of a long, drawn-out defamation case. He won the case, but it was an empty victory because of the massive costs. Reform of defamation law is almost always surrounded in controversy. There is a balancing act in managing the conflict between, on the one hand, the principle of freedom of speech and the free flow of information and, on the other hand, the right to protection from attacks on reputation. It is a conflict between competing public interests, as the High Court stated in 1997 in Lange's case:

The purpose of the law of defamation is to strike a balance between the right to reputation and freedom of speech. It is not to be supposed that the protection of reputation is a purpose that is incompatible with the requirement of freedom of communication imposed by the Constitution. The protection of the reputation of those who take part in the government and political life of this country from false and defamatory statements is conducive to the public good.

Since the Government was elected in 1995 there have been attempts to reform the Defamation Act. In September 1995 the New South Wales Law Reform Commission released its report on defamation. Its key recommendations were that falsity should be an ingredient of the cause of action in defamation, with the burden of proof resting on the plaintiff, and the declaration of falsity should be introduced as an alternative to damages. In September 1986 the Defamation Bill was introduced into the Legislative Council. The bill was largely based on the recommendations of the Law Reform Commission. However, the bill was strongly criticised by many in the community, including defamation lawyers, the Australian Press Council and the Free Speech Committee. The bill did not proceed past its second reading.

Earlier this year the Government set up the Attorney General's task force on defamation law reform. The task force reported in July this year. This bill implements the main recommendations of the task force. This bill amends the Defamation Act, and the Government has stated that the main thrust of the amendments is to strike a balance between the free flow of information in matters of public interest and importance and the protection of reputation. Those who are harmed by the publication of defamatory material should have access to redress. This right to pursue redress against defamation must be protected. However the Government has been keen to emphasise that it wishes to ensure that the law does not place unreasonable limits on the publication and discussion of matters of public interest and importance, promotes speedy and non-litigious methods of resolving disputes and avoids protracted litigation wherever possible.

As all honourable members know, John Marsden was seriously defamed by Channel 7 and is well qualified to speak on how persons seeking redress encounter defamation law after being defamed in the media. He has argued strongly against the amendments proposed by this bill. He is strongly opposed to the provisions of the bill which seek to try to force early settlements, early apologies and the bringing together of parties. Mr Marsden says his own experiences have made him dubious about such measures. He said:

Within six months of the defamation I tried to get the parties together. Within six months of the defamation I filed in the Court Offers of Compromise of $250,000 which, of course, at the end, was the verdict we got. However, whilst we filed that, we ran into costs of in excess of $7 million. The whole purpose of this legislation is a sham.

John Marsden suggests that the reason a defamation action gets out of control is the way it is run. He suggested that the process should be clarified in this way:

1. You are defamed.
2. You are the Plaintiff and you sue.
3. The defendant puts on the defence.
4. The matter goes to Court.
5. The Jury should be removed from the process—a jury is unnecessary.

Then a judge should decide on the following matters:

a) Is the statement defamatory?
b) If so, has it damaged you?
c) What are the damages?

He went on to state:

In my case, there were 17 interlocutory appeals to the Court of Appeal during the trial. That added over $1 million to the costs. There should be a clear provision preventing interlocutory appeals. There should not be appeals or an appeal process during the Court case.

In a letter he wrote to me on 4 December he stated:

The second issue is that in my case, after they defamed me on TV, somehow or other, people came out of the woodwork, people who made the allegations on TV knew people, supplied to them by the Police, who were then able to be called as witnesses - another ten (10) people. That shouldn't happen. The people who made the allegations are the people who should substantiate the allegations. We shouldn't say "John Marsden is a paedophile and these eight (8) people said so on TV. Now they say he is not a paedophile but we've found eight (8) new people who say he is a paedophile." That simply should not be able to happen.

The question of an apology, in my case and in serious defamation cases, would make no difference. Even though I won my Court case, I will be known as a paedophile for the rest of my life. I am tainted and damaged for the rest of my life. I don't have the influence I used to have. I thought of getting involved again with the Council for Civil Liberties but I never would because people will say "Oh, he is only a paedophile and what he says is only because he is a paedophile."

The question of tying the damages up with personal injury damages is ridiculous. In my case, if I'd had the money, I would have pursued an economic loss claim because of the damage it did to the office. Our office, for a period of six (6) years, had our income cut in half. However, it would have cost me over $1 million to have an expert come in and examine our books, together with Mallesons coming in and examining our books, to produce that to the Court. It should be able to be proved in a much simpler way. Evidence should be simpler.

Then, of course, was the fact that:

a) I had to prove the defamation, which I did before a jury and the jury said I was defamed.

b) I then had to prove that I was damaged. We had to go through that process, which was a waste of time because if, at the end of the day, Channel Seven had been able to prove I was a paedophile and we'd wasted six (6) months in Court proving I was damaged and they later proved I was a paedophile.

The issue as to whether I was a paedophile should have been able to be proved first. Then the damages.

The other issue is, on the question of damages, one should be able to look at things speaking for themselves. I had to go to a number of psychiatrists. That's not an easy thing for anyone to do, particular someone with an ego as big as mine.

I am sure you saw that I was totally and absolutely emotionally damaged. I thought seriously of suicide. I have never, ever, ever denied that. However, because the psychiatrist got his evidence confused, the Judge refused to allow any damages for psychiatric damage.

The Judge had to be stark-raving crazy mad not to think that I was not psychologically damaged from what happened to me. I went through people spitting on me in the streets, throwing bricks at me, excreta on my doorstep etc. Not psychologically damaged?

The interesting part I see in the new legislation is Clause 48A which says "In awarding costs in respect of proceedings for defamation, the Court may have regard to the following matters:

(a) The way in which the parties to the proceedings conducted their case (including any misuse of a party's superior financial position to hinder the early resolution of the proceedings),"

That is, of course, what happened in my case. There was no effort to settle because they didn't want to settle. They had plenty of money. It has cost me over $7 Million. What has it cost Channel Seven who had double the amount of representation? They had two QC's whilst I had one; they used their excess power.

That letter was sent to my office by John Marsden, senior partner in Marsdens law firm. This bill provides a bandaid approach to serious problems within defamation law. Though the Greens are always supporters of progressive law reform that will improve the delivery of justice and clarify legal processes or make them more efficient, we are unconvinced that this bill will deliver on these fronts. We appreciate the measures that the Government has adopted in order to make clear how this legislation should be interpreted. We also appreciate that it is emphasising that litigation should be considered a dispute resolution of last resort. The kinds of pressures that litigants face largely through the misuse of litigation should not be underestimated. However, the Greens do not believe that the Government should throw its hands up at the current state of our judicial system and simply encourage or indeed legislate to encourage people to avoid it. This is avoiding the real issue. As I said earlier, it is a bandaid solution. The pursuit of justice is a worthy aim and governments should legislate in the name of justice, not in the name of attempting to avoid confronting social and/or legal problems that appear impossible or not in the direct interest of the Government to resolve.

New part 2A is entitled "Resolutions of disputes without litigation". As the Government indicated, the object of this provision is to encourage the early settlement of disputes. Traditionally, those with lesser financial or other power within our community are those who are disadvantaged by the early and/or out-of-court resolutions of disputes. Justice should not be delivered—and indeed be encouraged to be delivered—only to those who can afford to pay. The bill provides that if an offer is made by the publisher to make amends for a defamatory statement it will be a defence to an action in defamation if the offer was reasonable in the circumstances. Whilst the Greens support attempts to prevent vexatious defamation actions clogging up the courts, we would not like to see people prevented from pursuing justice through the courts to properly clear their name because they are effectively forced to settle out of court. We are concerned that the bill may go to an extreme which may once again prevent the delivery of justice in a substantial number of cases. As has been noted by the Government:

There is understandable concern about wealthy parties, whether plaintiffs or defendants, using their deep pockets to wear down opponents of modest means to discourage them from continuing, or indeed even commencing, defamation proceedings for fear of a ruinous costs order. It is not unheard of, for example, for property developers to commence proceedings known as SLAPPs—strategic lawsuits against public participation—against individuals or community groups to silence their opposition to a proposed development.

Over the years I have been aware of many individuals and community groups that have been threatened by or issued with strategic lawsuits against public participation [SLAPPs]. They are lawsuits brought against individuals and community groups who do such things as circulate petitions, write to public officials, speak at or even attend public meetings, organise boycotts or engage in peaceful rallies and demonstrations. According to Sharon Beder in an article written in the Current Affairs Bulletin in 1995, SLAPPs are "a civil court action that alleges that injury has been caused by the efforts of individuals or non-government organisations to influence government action on an issue of public interest or concern". SLAPPs are big in the United States and have been known to occur here, particularly at the instigation of disgruntled developers. An example of a SLAPP in action can be seen in the Helensburgh SLAPP case. While this is an old case, it is a good demonstration of how a SLAPP works.

In this case the Helensburgh District Protection Society was formed after Wollongong City Council proposed that the town of Helensburgh be dramatically expanded. Members of the society were of the view that the development would have adverse impacts on the environment. The Donohoes and Tim Tapsell were active members of the society. Tim Tapsell acted as spokesperson on several occasions and Jenny Donohoe acted as the secretary. The society opposed a number of developments over a number of years, including a council plan in 1990 to rezone land in the green belt between Sydney and Wollongong. There were over 5,000 submissions in response to the rezoning proposal, the vast majority opposing the urban expansion. As a result, in 1991, the council dropped the plan. The following year the council put a new plan on public display that included the rezoning of much of the land as "environmental protection".

Public submissions were invited on the plan. The society was careful in all its activities not to name individuals or companies so that it would avoid defamation suits. According to the writ against the society, it had printed and arranged for more than 1,000 letters promoting the rezoning to be signed and forwarded to council. It had also written articles in favour of the rezoning as environmental protection that were published. The developers argued that the effect of the rezoning to environmental protection would be to prevent them from developing the land. They claimed that the defendants were aware of the effect and sought to achieve this effect. They sought to claim damages for the losses. The developers also alleged that the articles were inaccurate and misleading because they claimed that environmental damage would result from the residential development. The defendants, on the other hand, claimed that, far from conspiring to deprive the developers of profits, they were responding to a request from the council for the public to make submissions to the draft local environmental plan.

Aided by the efforts of the society, the council received more than 7,000 submissions with more than 5,000 supporting the rezoning. The council decided to go ahead with the rezoning but the Minister ordered a commission of inquiry into the rezoning. Shortly before the inquiry the Donohoes were threatened with further legal action for lobbying to have the inquiry cancelled. Many others who had intended to make submissions to the inquiry removed their submissions because they were also concerned about legal action. The developers kept the writ running for many years without bringing the case on for hearing. The Greens are pleased to see that the bill reforms the limitation period from six years to one year, which should stop this kind of litigation threat hanging around for many years on an old case. The limitation period can only be extended for a maximum of three years from the date of publication when the interests of justice require it.

By way of example I also wish to bring to the attention of the House the case of Mr Bill Ringland, a member of an organisation known as the Clean Seas Coalition. Bill Ringland is a good friend of mine and I also was a member of the Clean Seas Coalition. In early 1993 the coalition became involved in a dispute with the Council of the Shire of Ballina about sewage disposal. On 1 April 1993 Bill Ringland issued a press release, which unfortunately I wrote together with Bill, that suggested that the council was increasing its use of an outfall at Lennox Head and that sewage was being pumped out surreptitiously at night and during storms. The council called a meeting for the purpose of considering what to do about the press release. The council then sued Bill Ringland for defamation, alleging that the press release imputed that the council was conducting its activities of sewage disposal secretly and unlawfully, that it was setting out to deceive residents, that it was falsifying published environmental material, and that it had misled environmental authorities. The council also claimed special damages of $800 for injurious falsehood, being the cost of arranging the council meeting. Bill Ringland cross-claimed, alleging that the proceedings were an abuse of process. Of course, there are numerous examples of how defamation law has been abused, this being just one of them.

The abuse of defamation law can destroy lives. The reform of defamation law needs to be carried out very carefully. Mr Ringland's case started in 1978, when he was about 79 years of age, and it continued over several years. He was very well represented by Clive Evatt through many stages of the case. Bill Ringland was a good friend of mine. He was acting in the public interest and, fortunately, the court decided his way. However, he and his wife, Jean, endured a huge amount of stress and worried that they may lose their only possession—their house—as a result of the vindictive case brought by council. As was noted by Justice Kirby in regard to the case:

Can it be seriously suggested that ratepayers or others would refrain from using the council's sewerage facilities—or even other "commercial services" by the shock they received upon Mr Ringland's press release and reports of it?

Of course, thousands of cases demonstrate the problems that exist within defamation law. However, the changes proposed by the Government will not remedy those problems. The Greens are concerned about the potential impact of the bill in this regard. The Greens are also concerned that corporations, particularly small corporations or small businesses, will not be able to sue. We are opposed to this measure. We believe that, at the very least, the bill should be amended to ensure that smaller businesses and companies are not adversely affected by the sweeping restrictions on pursuing action that this bill will put in place. The State Chamber of Commerce has commented that it is concerned that the Government has proposed these changes without consulting business. Furthermore, despite undertakings made by Premier Carr at the Sydney Institute on 9 July, there has been no evident consideration given to exempting small businesses from the bill. The State Chamber of Commerce said:

The removal of small business owners' right to defend their trading name through the law of defamation is particularly unjust. Small businesses have neither the resources or the time to defend their name in the public arena through public relations or counter advertising as the Attorney General has suggested.

I had a defamation issue with News Ltd—it ran a major story that defamed me. Several years later, after going through an extremely excruciating court process, I received an apology, which was printed in the Daily Telegraph. It was small compensation for the suffering that I had received as a public figure who had been defamed. It is ridiculous that this sort of situation occurs. The result is that support for the plaintiff in these circumstances is often too little too late. On top of this, the Government has claimed that corporations will be able to seek redress under the Trade Practices Act for misleading and deceptive or unconscionable conduct. This Government has misled the House on this point. In fact, under section 65A of the Trade Practices Act publishers and other information providers are exempted from sections 52, 53 and 55 relating to deceptive and misleading information. Therefore, a publisher of a newspaper or the owner of a radio or television station will not be liable for misleading or deceptive conduct or misleading representations in the course of news reporting or otherwise providing information.

It is also an interesting possibility that under this legislation the Internet and similar services can be immune from prosecution as primary publishers, unless the publication concerns their goods and services. However, this will require a proclamation that the Internet and similar services are prescribed publications. That has not yet occurred. What is the situation with respect to Internet media commentary by the likes of crikey.com? Is there an opportunity for recourse? Are people going to be defamed and not be able to defend themselves? I ask the Government to clarify this point. The media should not have free rein to publish what they please about corporations of any size without a proper range of potential legal redress. The Greens consider this to be a serious problem. As has been noted by Chief Justice Gleeson in the New South Wales Court of Appeal:

Media power is, in the relevant sense, arbitrary: it is not subject to publicly-enforceable rules which control what may be published, nor are those who publish accountable for what is published other than through the law of defamation. The media exercises power, because and to the extent that, by what it publishes, it can cause or influence public power to be exercised in a particular way. And it is, in the relevant sense, subject to no laws and accountable to no one: it needs no authority to say what it wishes to say, or to influence the exercise of public power by those who exercise it.

The media may, by the exercise of this power, influence what is done by others for a purpose which is good or bad. It may do so to achieve a public good or its private interest. It is, in this sense, the last significant area of arbitrary public power. The law of defamation is the only or the only substantial legal control over what the media may say in order to influence public authorities to do what they would have them do.

I am involved with other ongoing defamation issues, as are some of my friends. It is a harrowing situation. People in my community and many other areas have made utterances in the public interest and have been dragged through a court case, often on the most spurious of charges. That is an absolute disaster for those people. Today I have received from Mr Clive Evatt—a barrister who has represented me a number of times on these defamation issues—notification of his major concerns with this bill. He makes the following comments:

(1) The proposed abolition of the right of a corporation to bring a claim for defamation is unjust and makes no sense.

It has been said that corporations are protected by the Trade Practices Act. However, section 65A of that Act exempt the media and other prescribed information providers from claims.

A small company could be put out of business by false, defamatory imputations published by a newspaper with no redress. The right of the directors to bring a claim would not entitle them to recover losses suffered solely by the company.

I suggest that the proposed section 8A not apply to smaller companies with 30 or less employees.

(2) The proposed offers to make amends under section 9D seems to assume that all defamation actions are brought against the media. Reference as to publishing a reasonable correction or publishing a reasonable apology are mainly applicable to the media who are in a position to do this.

Many defamation actions do not involve the media. The parties are often private citizens and the defamation concerned may relate to a letter or limited circulation of defamatory words. To publish a correction or apology in a newspaper would aggravate the situation because the defamation, even though there is an apology or correction, would be brought to the attention of all the readers of the newspaper.

The offer of amends is of assistance to the media who having published the defamatory matter is in a position to publish a correction or apology. As all the readers were aware of the defamatory matter they would know what was meant by the apology. This is not the case for individuals where the offer of amends would be useless.

Mr Evatt's next point is interesting. He candidly says:

(3) Lawyers will welcome the new bill because it makes our complicated defamation laws even more complicated. Lawyers can look forward to a substantial increase in income particularly in view of the generous cost orders set out in the new section 48A.

Generally the aim of the new legislation is to further remove brakes on the media so that they can ruin with impunity a person's reputation by false or irresponsible journalism.

The Greens are uneasy about the impact the bill could have on people. We do not support it.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [3.20 p.m.]: I speak in favour of the Defamation Amendment Bill on behalf of the Australian Democrats. In June 1990 the Attorneys General of New South Wales, Queensland, the Australian Capital Territory and Victoria initiated a project to discuss the implementation of uniform defamation laws. Unfortunately, the process fell apart as successive States left the project. The regimes in all States are quite different, as are the outcomes for litigants. No State was prepared to adopt the regime of the other. Ultimately, the project was left to meetings between New South Wales and the Australian Capital Territory, which proved fruitful. In 1994 the Australian Capital Territory produced a report, which was tabled in the ACT Legislative Assembly, outlining reforms. Recently, the Australian Capital Territory reformed its Act and incorporated some of the recommendations. I am pleased to say that the report from the Australian Capital Territory was largely written by my current staffer, Guy Ellicott. The report, together with the 1995 New South Wales Law Reform Commission report, made a raft of recommendations along similar lines to reform the law of defamation.

The report covered all the main areas of the law of defamation, including absolute and qualified privilege, the public figure test, the role of a judge and jury, defences, damages and alternative dispute resolutions. The bill addresses some of these areas and is moving in the right direction. It does not go as far as it should, but it is significant progress. The problem with wholesale changes is that since much of the print and electronic media, and the Internet, is generally Australiawide the dissemination of defamatory material crosses State borders and litigants can go shopping: they can initiate action in the jurisdiction that offers the best return. The Press Council submission to the Attorney General's Department review of the Defamation Act emphasises that we need uniform defamation laws across Australia. This positive bill partly returns the law of defamation to restoring a person's reputation. Defamation has become a cash cow for public figures who have the financial muscle to take on the media. It has been said that Joh Bjelke-Petersen ran his "Kingaroy" property on the proceeds of his defamation actions.

I have received letters of demand since I have been in this House. During the 14 years I ran my radio program Puff Off—which was Australia's leading radio program on smoking broadcast through the enthusiastically run university radio station 2SERFM—I also received a number of letters. I gave the tobacco industry a hard time. The radio station was very careful to caution me that it had received other complaints and that it could not afford insurance at the quoted price. Had the radio station been sued, it would have gone bankrupt and disappeared. Speaking the truth about the tobacco industry was extremely hazardous for many years. Near the end I regularly called them murderers each week to see whether I would be sued. It is interesting to note that the tobacco industry did not have the guts to sue me. Had I been sued I probably would have won; if not, they would have been laughed out of court. I am aware that a Sydney rugby league footballer received $250,000 because he was photographed naked in the shower. Presumably, his reputation was damaged because his genitals were photographed. But contrast that with the $51,000 he would have received under the table of maims if he had lost his genitals in an industrial accident! Relativities between the damages for physical injury and the damages, so-called, for reputation are absurd.

Obviously, avoiding litigation is a worthy aim. Litigation is extraordinarily expensive in western jurisdictions, which is part of the problem. As one German said, "Yes, the British have a Rolls Royce legal system. The problem is that most people cannot afford Rolls Royces." The legal system is inequitable because it favours the rich who can afford to continue their cases for a long time with the best lawyers. Ideally, the object of defamation law would be to make restitution. Sometimes restitution can be made by giving people money but in other cases that is not so. It seemed extremely likely that my colleague Ian Gilfillan would win a seat in the South Australian Parliament. The day before the election a newspaper printed a defamatory article to which he was not able to respond, which probably cost him the seat. If my colleague were to be compensated financially, a court would have to take into account the probability of his winning based on private polling or opinions before the election and other things he may have been able to achieve, which are not necessarily easily quantified.

When opportunity costs are involved restitution is often very difficult. However, it is a shame there is no cap when it is simply reputation. Presumably, people who make huge amounts of money and whose reputations are called into question, which results in huge financial losses, could quantify those losses. It is a remedy for the rich. When poorer people are killed, compensation for the family is far less than that awarded to people whose reputations have been sullied. Some of us might say that life is more important than reputation. In the Crucible John Proctor says, "Take my life but leave my name", which is very heroic because he will be killed if he does not confess. If he dies his reputation remains intact, if he confesses to something he did not do his life is spared, but he will be disgraced. For most people it would be more important to win the case and have their reputations restored by some order of the court or statement by the person who had done wrong rather than be awarded damages greatly in excess of what other people would receive if their lives were ruined through physical injury. It is a shame that the cap has not been brought in at $350,000.

The practical aspects of the Internet must be tested. The Standing Committee on Social Issues is examining the power of the Internet and the possible censorship of pornographic material. The late Doug Moppett, who had the gift of magnificent commonsense, summed it up when he said that it was like shutting the window after the wall has blown away. When material published on the Internet is subject to the law of defamation in New South Wales, technically it will be very difficult for people to sue for information published on the Internet in the New South Wales jurisdiction. In practice it will have a great deal of effect on defamation action and defamation law in the medium term. It has not happened yet, but we are on the brink of it. We must congratulate the Government on the progress it is making, but we need uniform defamation laws in Australia. If the Internet is to be managed in any way defamation laws throughout the English-speaking world must be uniform.

The Hon. IAN MACDONALD (Parliamentary Secretary) [3.28 p.m.], in reply: I shall respond to the comments made by the Hon. Ian Cohen and then seek leave to incorporate my reply to the second reading debate in Hansard. The law of defamation exists to protect the reputations of individuals and the interests they have in their honour, dignity and standing in the community. It also plays a crucial role in ensuring a correct balance between the protection of that individual reputation and free speech. Freedom of speech is a cornerstone of a free and democratic society. It can be quickly stifled when individuals are threatened with a defamation action by powerful corporations. It is the mere threat of litigation that can force people into silence.

While court statistics show that very few defamation matters in which the plaintiff is a company make it to final judgment, those that do can eat up an enormous amount of the parties' money and the court's time, not to mention the fact that they can be a public relations disaster for the corporation suing. Perhaps the most infamous example of why corporations should not be allowed to sue for defamation is the English case dubbed "McLibel", in which McDonalds sued two activists for handing out anti-McDonalds leaflets. The case ran for 2― years in the mid-1990s and remains the longest-running trial in English legal history. If a corporation is so concerned about its reputation that it believes litigation is the only way to protect it, a number of options can be pursued. Corporations have always been, and will continue to be, able to sue for injurious falsehood or passing off, as well as bring a claim under the Commonwealth Trade Practices Act for misleading and deceptive or unconscionable conduct. While I appreciate that the remedies available to corporations under the Trade Practices Act will be against their commercial rivals rather than against media organisations, sufficient protection is available to corporations to safeguard their economic interests. Unlike most individuals, corporations frequently have the ability to engage in counteradvertising and to run effective publicity campaigns to protect their public profile.

As I mentioned in the debate last week, small or family businesses are unlikely to be seriously affected by the proposal to prevent corporations from suing for defamation. This is because it will commonly be the case that individuals will be sufficiently identified to sue in their own right, rather than in the company name. After all, a story on a current affairs program about a small family company, such as a hairdressing business, motor repair shop or a restaurant is not much of a story unless it identifies and obtains comments from, or at least attempts to obtain comments from, the people who are responsible for the business. Should a small business suffer economic loss as a result of its reputation being harmed, the principals of the business would almost always be able to sue for their own economic loss in an action for defamation. After all, most individuals associated with a small company would rely on that company for their main or sole source of income.

The Defamation Task Force advised me that there would be very few, if any, cases in which individuals are not identified in a story about a small company, and that an action would generally be available in injurious falsehood, which requires the plaintiff to demonstrate falsity, malice and economic loss. I appreciate that establishing malice can sometimes be difficult to prove, but it is important to understand that one way in which malice can be established is by showing reckless indifference by the defendant as to whether the material is true or false. Approached from this angle, any careless reporting conducted by a current affairs program, for example, would be at serious risk of an adverse court finding.

Of course, in the case of individuals associated with a corporation, the bill makes it clear that an individual who is a member of a company, including a director or shareholder, can bring a claim for defamation if he or she is defamed in a publication that also defames the company. In other words, in no way does the new rule preventing corporations from suing for defamation preclude an individual in the company from asserting that right. By providing in the bill that corporations will no longer be able to sue for defamation, we will be ensuring that an essential component of a free and open democracy-free speech-is protected and encouraged. To leave the law as it stands would serve only to allow the threat of litigation to have a chilling effect on free speech. As I foreshadowed earlier, I now seek leave to incorporate my reply to the second reading debate.

Leave granted.

Defamation Law Reform has generated considerable interest for some time. It was the subject of a Law Reform Commission Report in 1995, a forum was convened in 2000 and there have been attempts over the years through the Standing Committee of Attorneys General to achieve some sort of uniformity across Australia. Perhaps the principal reason the topic of defamation law reform frequently provokes heated debate is that so many powerful interests collide under this sphere of law: freedom of speech; protection of reputation; and protection of privacy.

The reforms contained in the bill before the House today will ensure that the Defamation Act provides the people of New South Wales with effective and appropriate remedies should their reputations be harmed. They will ensure that the law of defamation does not place unreasonable limits on the publication and discussion of matters of public interest and importance. They will promote speedy and non-litigious methods of resolving disputes, and they will avoid protracted litigation wherever possible.

These reforms will be achieved in a number of specific ways. Amendments to the Defamation Act will divert those cases that can be dealt with by other means away from extended litigation by a revised. and upgraded offer of amends procedure. A publisher will be able to make an offer of amends to a person aggrieved by a defamatory or purportedly defamatory statement, The offer must include an offer to publish a reasonable correction and apology, if appropriate, and an offer to pay the expenses reasonably incurred by the aggrieved person, The publisher may also decide to include an offer to pay compensation in appropriate cases. Under amendments proposed by the Government a publisher will have 28 days within which to make an offer of amends after being told that a publication is or may be defamatory, although there will be scope for negotiations to continue beyond the 28 days, provided any renewed offer of amends is genuine. Once a publisher performs its part of a settlement offer, including paying any agreed compensation, the aggrieved person cannot begin or continue a defamation action.

The amendments will also provide an incentive to settle defamation proceedings before they reach the courts by applying costs penalties to an unreasonable failure to resolve a matter. It will also be a defence in defamation proceedings that a reasonable offer of amends was made but that it was not accepted. The Government has been assisted in the preparation of this bill by some very worthwhile contributions by other members of Parliament. The honourable member for Manly in the Legislative Assembly made some useful suggestions in relation to the costs provisions of the bill and his amendments have been incorporated into this section.

It is important to keep in mind that the revised offer of amends is one option for parties to settle proceedings, and is aimed at settlement occurring before litigation gets under way. It does not preclude parties from pursuing other forms of settlement. Parties will still be able to settle matters according to the offer of compromise regimes under the Supreme Court and District Court Rules, and, of course, they will also be entitled to settle defamation matters on any terms they see fit at any time of the proceedings. Nevertheless, to further encourage plaintiffs to seek to vindicate their reputations at the earliest possible opportunity, the bill will shorten the limitation period for bringing a defamation action from six years to one year, with a discretion to extend the period in appropriate cases to a maximum of three years from the date of publication.

In my view, what is important in weighing up a balance between free speech and protection of reputation is ensuring that responsible discussions of matters of public importance are protected This has been achieved, I believe, by providing greater guidance to the court in assessing a defence of qualified privilege The bill sets out a list of factors that a court may take into account when determining qualified privilege, Those factors include the extent to which the matter published is of public concern and the extent of a person's public functions or activities.

In keeping with the view that the law of defamation exists to protect reputation and the interest which individuals have in their honour, dignity and standing in the community and that, conversely, a corporation's interest in reputation is economic, corporations will not have the right to sue for defamation. In the interests of greater clarity and certainty about the scope of protected reports, the amendments will extend protection to accurately reported third party statements. Specifically, this includes the publication of reports of media conferences given, or media releases issued, by or on behalf of public officials or public authorities in their official capacities.

Finally, the Government is proposing some minor amendments to the offer of amends procedure as originally proposed in the bill. These amendments will essentially clarify certain aspects of the making of offers of amends that I am confident will further encourage parties to resolve any dispute early and with as little cost and inconvenience as possible. In summary, the amendments to the Defamation Act contained in the bill will strike a balance between the free flow of information of matters of public interest and importance, and the protection of reputation.

Motion agreed to.

Bill read a second time.

Motion by the Hon. Richard Jones 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 has the power to consider amendments relating to damages for non-economic loss.

Motion by the Hon. Richard Jones agreed to:

That it be an instruction to the Committee of the Whole it has have the power to consider amendments relating to damages for non-economic loss.

Clauses 1 to 4 agreed to.

Schedule 1

The Hon. GREG PEARCE [3.35 p.m.]: I move Opposition amendment No. 1:

No. 1 Page 4, schedule 1 [5], proposed section 8A. Insert after line 12:

(3) Despite subsection (1), a corporation may assert or enforce a cause of action in defamation in respect of the publication of any matter by means of which a defamatory imputation about the corporation is made if:

(a) the corporation employs fewer than 10 persons at the time of publication of the matter, and

(b) the corporation has no subsidiaries (within the meaning of the Corporations Act 2001 of the Commonwealth) at that time.

The Opposition is not satisfied with the Government's suggestion that small businesses would not be adversely affected by this sledgehammer approach to removing the right of corporations to sue. It is certainly not happy with, and disagrees with, the assumption that individuals will always be identified when a small private or family company is defamed. The defamation of a small business could cause significant injury to the family or the individuals involved in the company. It is not acceptable to argue that compensation for damage to reputation can be obtained through injurious falsehood, because that remedy is available only for provable financial loss. In addition, to succeed, one must prove malice, which would be extremely difficult for a small business. The Government suggested that individuals would always be identified and, therefore, would have the right to sue. It is not fair to expose small businesses to potential damage by having their rights removed and to expect them to seek other legal recourse.

The Hon. IAN MACDONALD (Parliamentary Secretary) [3.37 p.m.]: The Government does not support this amendment. In the case of small or family businesses that are defamed, it will commonly be the case that in practice individuals will be sufficiently identified to sue in their own right rather than in the company name. After all, a story about a small family company is not much of a story unless it is connected to and identifies individuals. The Defamation Task Force considered that there would be few cases in which individuals were not identified in the case of a small company. In those cases, an action in injurious falsehood would generally be available. To make an exception for a small or family company would create more problems than it would solve. For example, it would not be fair to base the exception on the number of shareholders or directors, because some very large and powerful businesses may have relatively few shareholders or directors. This presents a definitional problem.

The Hon. RICHARD JONES [3.38 p.m.]: I support the Liberal Party amendment. Often when small businesses comprising 10 or fewer people are defamed the person involved is not identified. The company could be very small and could be ruined. Family and small businesses need adequate protection. Therefore, I support the amendment.

The Hon. IAN COHEN [3.39 p.m.]: The Greens support the amendment moved by the Liberal Party. In fact, in discussions with the Opposition we sought to have the figure increased to 20. Small family companies could easily have 20 employees when one counts cleaners and other staff, including, more recently, security staff. Small companies with that number of employees, particularly family businesses, should receive that level of protection. Therefore, the Greens support the amendment.

Question—That the amendment be agreed to—put.

The Committee divided.

Mr Breen Dr Chesterfield-Evans Mr Cohen Mrs Forsythe Mr Gallacher Miss Gardiner Mr Gay Mr Harwin

Mr M. I. Jones Mr R. S. L. Jones Mr Lynn Reverend Dr Moyes Reverend Nile Mr Oldfield Mrs Pavey Mr Pearce

Dr Pezzutti Ms Rhiannon Mr Ryan Mrs Sham-Ho Tellers, Mr Colless Mr Jobling

Dr Burgmann Ms Burnswoods Mr Costa Mr Della Bosca Mr Dyer

Mr Egan Mr Hatzistergos Mr Macdonald Mr Obeid Ms Saffin

Ms Tebbutt Mr Tsang Tellers, Ms Fazio Mr Primrose

Mr Samios

Mr West

Question resolved in the affirmative.

Amendment agreed to.

The Hon. IAN MACDONALD (Parliamentary Secretary) [3.45 p.m.], by leave: I move Government amendments Nos 1 to 5 in globo:

No. 1 Page 5, schedule 1 [6], proposed section 9D (3) (c), line 16. Omit "(if any)". Insert instead "(if appropriate in the circumstances)".

No. 2 Page 5, schedule 1 [6], proposed section 9D (3) (d), line 19. Omit "(if any)". Insert instead "(if appropriate in the circumstances)".

No. 3 Page 5, schedule 1 [6], proposed section 9D (3) (g), lines 30 and 31. Omit all words on those lines. Insert instead:

(g) must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer,

No. 4 Page 6, schedule 1 [6], proposed section 9D (5) (a), lines 17-19. Omit all words on those lines. Insert instead:

(a) the end of 28 days after the day the aggrieved person gives the publisher notice in writing informing the publisher that the matter in question is or may be defamatory of the person, or

No. 5 Page 7, schedule 1 [6], proposed section 9D. Insert after line 10:

(12) An offer to make amends is taken to have been made without prejudice, unless the offer otherwise provides.

I commend the amendments to the Committee.

The Hon. GREG PEARCE [3.45 p.m.]: The Opposition supports the amendments.

Amendments agreed to.

The Hon. GREG PEARCE [3.46 p.m.]: I move Opposition amendment No. 2:

No. 2 Pages 10 to 12, schedule 1 [12] and [13], line 1 on page 10 to line 18 on page 12. Omit all words on those lines.

This amendment will remove new section 25A, about which the Opposition has great concerns, as it would allow immunity for press releases and press conferences, particularly by government departments and spokesmen. This section is inappropriate in the lead-up to the forthcoming election.

The Hon. IAN MACDONALD (Parliamentary Secretary) [3.47 p.m.]: The Government does not support the amendment. The Defamation Act currently includes a defence relating to the publication of fair and protected reports. Schedule 2 to the Act explains that protected reports relate to reports on the public proceedings of Parliament, courts and other public bodies. In the interests of greater clarity and certainty about the scope of protected reports, the bill will insert a new section 25A into the Act to extend protection to accurately report third party statements.

Specifically, this will include the publication of reports of media conferences given, or media releases issued, by or on behalf of public officials or public authorities in their official capacities. The new section will also protect subsequent reports based on earlier reports of media conferences, if the person making the subsequent report is not aware that the earlier report is unfair. The new section will not preclude a person bringing a defamation claim against the original maker of the statement. However, the section will protect media organisations that subsequently publish the report.

Question—That the amendment be agreed to—put.

The Committee divided.

Mr Breen Dr Chesterfield-Evans Mr Cohen Mrs Forsythe Mr Gallacher Miss Gardiner Mr Gay Mr Harwin

Mr M. I. Jones Mr R. S. L. Jones Mr Lynn Reverend Dr Moyes Reverend Nile Mr Oldfield Mrs Pavey Mr Pearce

Dr Pezzutti Ms Rhiannon Mr Ryan Mrs Sham-Ho Tellers, Mr Colless Mr Jobling

Dr Burgmann Ms Burnswoods Mr Costa Mr Della Bosca Mr Dyer

Mr Egan Mr Hatzistergos Mr Macdonald Mr Obeid Ms Saffin

Ms Tebbutt Mr Tsang Tellers, Ms Fazio Mr Primrose

Mr Samios

Mr West

Question resolved in the affirmative.

Amendment agreed to.

The Hon. RICHARD JONES [3.51 p.m.]: I move:

Page 12, schedule 1. Insert after line 23:

[16] Section 46A Factors relevant in damages assessment

Insert after section 46A (2):

(3) However, a court is not to make an award of damages for non-economic loss that exceeds the maximum amount that may be awarded to a claimant for non-economic loss for the purposes of section 16 (2) of the Civil Liability Act 2002.

The amendment provides that the highest amount of compensation payable for non-economic loss in defamation cases should be the same as the highest amount payable in personal injury cases. Section 16 (2) of the Civil Liability Act 2002 provides that the maximum amount of damages that may be awarded to a claimant for non-economic loss is $350,000. The defamation laws in Australia are notorious for being skewed in favour of protecting the reputations of prominent people, and there has been ongoing concern about the frequency of defamation cases and the size of awards made.

New South Wales produces more defamation writs per capita than England and the United States of America, with one writ in New South Wales per 79,000 people. In contrast, England produces one defamation writ per 121,000 people, and the United States produces one defamation writ per 2.3 million people. The Government recently legislated to cap compensation for non-economic loss in personal injury cases. There is clearly no reason why defamation plaintiffs should be favoured over personal injury plaintiffs.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [3.52 p.m.]: I support the amendment. As I said in the second reading debate, it is unreasonable to suggest that one person's reputation is more important than another person's life, and the amendment addresses that issue. A plaintiff who wins his or her case and is awarded damages is, in a sense, vindicated. The damages awarded in defamation cases should not be greater than the maximum award of damages in personal injury cases.

The Hon. IAN MACDONALD (Parliamentary Secretary) [3.53 p.m.]: The Government does not support the amendment. As honourable members will be aware, the Civil Liability Act 2002 limits the maximum award of damages for non-economic loss in personal injury claims to $350,000, an amount that is indexed annually. The indexed amount currently stands at $365,000.

Section 46A of the Defamation Act directs a court to take into consideration the general range of damages for non-economic loss in personal injury awards in New South Wales, including damages awards limited by statute. Of course, this means that a court must take into account the cap on damages specified in the Civil Liability Act. In my view, section 46A provides adequate guidance for courts in assessing damages for non-economic loss, and I am confident that the courts will give serious consideration to the cap on damages set out in the Civil Liability Act.

The Hon. GREG PEARCE [3.53 p.m.]: The Opposition is not convinced that harm to reputation equates in some way to non-economic loss for personal injuries and, therefore, it does not support the amendment.

Amendment negatived.

Schedule 1 as amended agreed to.

Scheduled 2 agreed to.

Title agreed to.

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

Motion by the Hon. Ian Macdonald agreed to:

That standing and sessional orders be suspended to allow the moving of a motion forthwith relating to the conduct of the business of the House.

Motion by the Hon. Ian Macdonald agreed to:

(1) That the Coal Mine Health and Safety Bill and the Coal Industry Amendment (Fees for Rescue Services) Bill be considered together at the second reading stage; and

(2) That the questions on the motions for the second readings of these bills and subsequent stages be dealt with separately in respect of the separate bills.

The Hon. IAN MACDONALD (Parliamentary Secretary) [3.56 p.m.]: I move:

That these bills be now read a second time.

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

Leave granted.

COAL MINE HEALTH AND SAFETY BILL

The Carr Labor Government remains strongly committed to protecting the health and safety of the State's 9,500 coal mine workers.

Coal is one of the State's largest exports, with total production last financial year of $5 billion.

However, the success of this industry has, in the past, come at a terrible cost.

Tragically, more that 1,500 coal mine workers have been killed in New South Wales since 1900.

This year is the centenary of the Mount Kembla disaster where 96 men and boys lost their lives.

This tragedy remains Australia's worst industrial disaster.

Sadly, there have been other disasters, which have taken coal miners from their families.

Catastrophes such as:

• the fire and explosion at Bellbird colliery in 1923, with the loss of 21 lives;

• the fire at Bulli colliery in 1965, with the loss of four lives; and

• the explosion at Appin colliery in 1979, with the loss of 14 lives.

In more recent times, three miners were killed in the 1991 roof fall at Western Main colliery.

In the same year an outburst also occurred at the South Bulli colliery where three more lives were taken, and in 1996, there was the tragic loss of four lives in the inrush at the Gretley mine.

In late 1996, against a backdrop of tragic deaths and near misses, this Government commissioned a wide ranging review of mine safety in New South Wales and implemented a number of key reforms.

These changes have included:

• a new specialist investigation unit to thoroughly investigate and report on serious mine safety incidents;

• the adoption of a prosecution policy and a $1 million mine safety prosecution fund;

• a Mine Safety Advisory Council to bring together Government, employers and unions to work on mine safety issues; and

• the reform of mine safety laws.

This Government has overseen significant improvements in mine safety.

However, there is no room for complacency when the lives and safety of New South Wales' coal mine workers are at stake.

The safety performance of the mining industry still needs to further improve.

One death, one injury is one too many.

The Coal Mine Health and Safety Bill is the result of an extensive review of the laws covering health and safety in coal mines, and in particular the Coal Mines Regulation Act 1982

The Bill will modernise the current twenty year-old coal safety legislation.

The Coal Mine Health and Safety Bill has been prepared following a detailed consultation process with mining industry operators and employees.

The Minister for Mineral Resources, the Honourable Eddie Obeid, announced the start of this process in July 2000.

This saw the release of a comprehensive discussion paper - Transforming Health and Safety Regulation in New South Wales Coal Mines.

The paper called for comments and submissions from those with an interest in improving safety in the New South Wales coal industry.

Based on the outcomes of the first round of detailed consultation, a further paper titled Safety Works was released by the Minister for Mineral Resources for community comment in February 2002.

The Coal Mine Health and Safety Bill 2002 reflects the outcomes of this extensive consultation process.

I take this opportunity to thank—on behalf of the Minister for Mineral Resources—all those who, through submissions or comments, have contributed to the development of the Bill.

In particular, the Minister has advised me that the representatives of mining companies and mining workers, have both been particularly constructive throughout the consultative process.

As members of the house would be aware, the Occupational Health and Safety Act 2000 applies to every industry in NSW, including the coal mining industry.

However, the potential danger inherent in any coal operation is too high to be dealt with solely by the Occupational Health and Safety Act.

That is why there has always been specific coal mine health and safety laws in this State.

The Bill replaces the twenty-year-old Coal Mines Regulation Act with new, modern legislation that better protects the health, safety and welfare of people who work in the NSW coal industry.

The Coal Mine Health and Safety Bill is complementary to the more general Occupational Health and Safety Act.

The Government must have a strong role in the regulation and enforcement of mine safety standards.

If coal mines are not appropriately regulated there can be catastrophic loss of life.

This Bill provides a framework to manage the particular risks arising from coal mining, such as underground fires, explosions or roof collapses.

The Bill lays the foundation for an integrated approach to mine safety - through the development of health and safety management systems, major hazard management plans and emergency systems.

This Bill does not reduce the importance of Government inspectors, investigators and mine safety officers in providing independent and effective safety regulation for the industry.

I will now describe some of the central features of the Coal Mine Health and Safety Bill.

The Bill will apply to all places of work within a colliery holding under the Mining Act 1992.

The Bill requires a colliery holder to nominate an operator for any coal operation.

The operator must be the employer with day to day control of a coal operation.

A coal operation may be an underground mine, an open cut mine or a coal preparation plant.

A central element of the Bill is the requirement that an operator develop and implement a comprehensive health and safety management system as a condition for mining to be undertaken.

At the present time there are a variety of rules, schemes, systems and plans required under the Coal Mines Regulation Act to be prepared by a mine manager.

The Bill consolidates that mixture of requirements within a single, integrated and comprehensive health and safety management system.

The various rules, schemes, systems and plans will become important elements of the integrated system.

Health and safety management systems will be required to cover such matters as: major hazard management plans; the management structure for a coal operation; and a contractor management plan.

The systems will be comprehensive, and cover all those at a coal operation including employees, visitors and contractors.

To maintain existing arrangements, training requirements for the systems will need to be compatible with training schemes required under the Coal Industry Act 2002.

An important part of an operator's health and safety management system will be a management structure.

The management structure must include competent persons to perform key health and safety related functions.

The ongoing operation of health and safety management systems will be monitored by the Department of Mineral Resources inspectorate.

These officials will have available prohibition and improvement notice powers to ensure identified safety deficiencies are remedied.

The Bill will ensure that effective emergency provisions are also developed and maintained at coal operations.

The Bill requires an emergency management system to be developed.

This system would operate separately from the health and safety management system for two important reasons.

Firstly, it reinforces the importance of adequate emergency preparedness.

Secondly, it recognises that in an emergency different means of management, such as the formation of incident control teams and the close engagement of external emergency services may be necessary.

As with the health and safety management system, an emergency system will cover employees, visitors and contractors at a coal operation.

The Bill retains important provisions of the Coal Mines Regulation Act which are intended to protect the community from potential health and safety impacts of coal mining or to protect the safety of people in adjoining mines.

These include an ability for the Minister to require the leaving of barriers or protective pillars in mines, the closing of shafts or outlets in abandoned mines, the control of emplacement areas and a requirement for permits for former mines to be used for tourist or educational activities.

To ensure appropriate compliance and enforcement of the new laws, a range of offences, in addition to those contained in the Occupational Health and Safety Act, are included in the Bill.

Penalties for offences in the Bill are at a level commensurate with similar offences under the Occupational Health and Safety Act.

When enacted the legislation will be enforced in mines by inspectors and others with powers under the Occupational Health and Safety Act.

Another important feature of the Bill is the proposed new Coal Competence Board, which will replace the Coal Mining Qualifications Board.

The Coal Competence Board will oversee the development of competence standards and assessment of people performing particular functions in coal operations.

Importantly, the Board will be able to continue to arrange for the examination of candidates and the issue of certificates of competence.

Standards of competence for those performing critical health and safety functions in coal operations are essential if risks are to be appropriately identified and managed.

Those who work in coal mines need to have the recognised competencies to ensure they are able to perform their duties without placing themselves and others at risk.

A person will not be able to be employed in connection with a coal operation as a Manager, Deputy Manager, Under Manager in Charge, Under Manager or Deputy if they do not hold the relevant qualification for that position.

The new Act will not commence without regulations being made that recognise these positions and the corresponding competency standards and functions.

Those currently in statutory positions will be taken as having the necessary capability to perform the corresponding functions under the Coal Mine Health and Safety Act.

An important part of safety management is to ensure that employees who often work in challenging underground conditions, are fit for work and not fatigued.

Section 168 of the Coal Mines Regulation Act contains important safety provisions regarding hours of work.

As part of the modern legislative framework, these provisions are not expressed in the Bill, but rather will be retained in the regulations.

It is important to note that the regulations will be a key component of the safety framework that gives operational effect to important provisions of the Bill.

To ensure a smooth transition to the new legislation, the regulations will be developed in close consultation with mining company representatives and mine worker representatives.

Where necessary, the regulations will be able to make provision for existing arrangements, under the Coal Mines Regulation Act, to be acceptable as fulfilling requirements under the Coal Mine Health and Safety Act, for a limited period.

This will allow existing safety measures to satisfy the relevant requirements of the new legislation, while the required work is undertaken to implement new safety standards.

The Coal Mine Health and Safety Bill 2002 provides a basis for a safer coal industry in New South Wales.

We must learn from the lessons of the past, by ensuring that effective measures are in place to prevent disasters and that the general safety, health and welfare of our coal mine workers is protected.

The Carr Government remains committed to putting in place the best possible arrangements to protect the lives, health and safety of our coal mine workers.

We trust that those who share a similar commitment will support the timely passage of this Bill.

I commend the Bill to the House.

COAL INDUSTRY AMENDMENT (FEES FOR RESCUE SERVICES) BILL

Since 1 January 2002 the Coal Industry Act 2001 has provided for altered arrangements in the NSW coal industry in respect of the delivery of occupational health and safety, workers compensation and mines rescue services.
Honourable members will recall that those services are now performed by private corporations approved by the Minister for Industrial Relations who, apart from exercising an appointment power in relation to the companies' boards of industry-representative directors, retains a reserve monitoring and regulatory role under the Act in relation to the companies' performance of their approved statutory functions.

The mines rescue functions specified in the Act are undertaken by Mines Rescue Proprietary Limited.

Section 22 of the Coal Industry Act presently prohibits the charging of fees by Mines Rescue Pty Limited in the exercise of its principal underground coal mine rescue services as listed in the Act's section 14.

The funding of these services is intended to be accommodated under the Act by the company's annual monetary levying of owners of all coal mines (being both underground and open cut operations) according to the mine's size, rescue training needs, accident risk assessment and likely cost of rescue services.

It is the case that Mines Rescue Pty Limited is not an instrumentality or agent of the New South Wales Crown and the new statutory arrangements are designed to allow the coal industry parties (Construction, Forestry, Mining and Energy Union and the NSW Minerals Council Limited) to be responsible for the overall administration of the industry's functioning, including mine rescue activities.

In this capacity, the board of directors of Mines Rescue Pty Limited has informed the Government of its unanimous view (corresponding with the common stance of their backing bodies) that the present section 22 fee-charging prohibition is unsustainable in terms of the future financial standing of the company.
The Government accepts the case presented by the company.

Accordingly, the Coal Industry Amendment (Fees for Rescue Services) Bill proposes that there should be permissible fee-charging by the approved mines rescue company for the provision of rescue services after the first eight hours (or greater prescribed period) of an emergency at an underground coal mine.

The Mines Rescue Pty Limited board advises that the likely cost of its rescue services in an emergency are as much as $0.2 million per day. The company points out that it is unable to accumulate adequate reserves under the present levy system to cope with a prolonged emergency such as the 1979 Appin explosion when Mines Rescue Service personnel and brigades were involved at that mine for approximately six weeks.

The board emphasises that to simply increase the current statutory levy could result in the more economically marginal mines being forced to close. This alternative form of action by the company is also not amenable to the Government.

I am further advised by the company that the former Mines Rescue Board which Mines Rescue Pty Limited replaced apparently acted in ignorance of the equivalent section 22 fees prohibition under the repealed Mines Rescue Act 1994.

Whenever the established Mines Rescue Service attended an emergency, the cost for the first shift (or 8 hours) in respect of both underground and open cut coal mines was met as a charge against the statutory levy which the former board made on the industry. All operating and labour costs for employees and brigades after that first shift were then to be charged to the colliery (and its insurer).

Since 1994 there have fortunately been no emergencies extending beyond eight hours involving risk to life.

The system of charging all collieries after the first eight hours apparently dates from the 1970s.

Prior to the adoption of the fee-charging system some mine managers used the Mines Rescue Service as a source of free labour. For example, with spontaneous combustion at mines, heating might advance to a point where breathing apparatus and mines rescue teams were required to make the mine safe. Additionally, the initially free service over the first 8 hours for open cut mines was introduced so as not to discourage those mine managers from activating the service if they were in any doubt that the service was really required to be used.

Clearly, there is established industry acceptance of the present common fee-charging system for rescue work at both underground and open cut coal mines despite former and current Act provisions.

Moreover, the responsible coal industry parties charged with performing mine rescue services are of the firm view that the alternative of differential economic treatment according to mine type would be financially unsustainable for Mines Rescue Pty Limited and the industry at large in the event of a major emergency or a series of emergencies.

For these reasons, the Government is convinced that the Coal Industry Act requires appropriate amendment.

To this end, the bill which I introduce today establishes a threshold of 8 hours (being the accepted industry standard) before fee-charging will be permitted by the mines rescue company in the actual provision of rescue services in dealing with an emergency at an underground coal mine in New South Wales.

The term "emergency" has a specific meaning under the Coal Industry Act. It is defined to relate to an actual or imminent occurrence (such as fire, explosion, accident or flooding) that has resulted in a person's death or injury or is endangering or threatening to endanger a person's life or physical well-being.

Fee-charging will not apply at any stage to the mines rescue company's exercise of its more general or non-emergency section 14 principal functions at underground coal mines—for example, functions relating to the training and equipping of brigades.

Concerning the intended non-entrenchment of the eight hours mark as the threshold point for mines rescue fee-charging, it is to be noted that the proposed variant regulation-making power will be limited only to possibly increasing the allowable fees-free period. The eight hours (or first shift) mark is the industry's recommended and currently applicable fees threshold, but the Government is of the view that the Act should contain some regulatory flexibility to perhaps afford lessened mines emergency rescue costs to mine owners over time as a result of, say, enhanced rescue operations.

The regulatory power is not so variant as to permit a period of less than eight hours as this would be both contrary to the present industry standard and potentially cost disadvantageous to mine owners at some future time.

Honourable members may be assured that the bill is acceptable to Mines Rescue Pty Limited, the Minerals Council and the Construction Forestry Mining and Energy Union whose key officers were made aware of the bill's contents in the drafting process.

The recognition of the Government in its coal industry structural arrangements reform of last year was that the industry parties are in the best position themselves to know how their industry can optimally function.

Confirmation of the correctness of the Government's Coal Industry Act approach lies in this bill's genesis in the approved company's early analysis of the currently inadequate mines rescue funding arrangements and the industry's resultant reform call.

I commend the board of directors of Mines Rescue Pty Limited for bringing this matter to the Government's attention as I also now commend the bill to the House.

The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [3.56 p.m.]: The Opposition does not oppose the Coal Mine Health and Safety Bill or the Coal Industry Amendment (Fees for Rescue Services) Bill. We recognise the importance of maintaining and strengthening the health and safety conditions of the State's coalminers. We also recognise the need to maintain a world's best standard of conditions in New South Wales coalmines. New South Wales coalmining companies are committed to improving health and safety in the workplace, and I also acknowledge the work of employee representative bodies in this regard. The overview of the Coal Mine Health and Safety Bill as contained in the explanatory note is as follows:

This Bill is about the Health, safety and welfare of people who work at coal operations, that is, people who work at colliery holdings (including coal mines, oil shale mines and kerosene shale mines), at coal exploration sites and in the exploration for or recovery of offshore coal.

The explanatory note goes on to state:

This Bill puts in place special additional obligations, protections and procedures necessary for the control of particular risks arising from coal operations. The obligations, protections and procedures in the Occupational Health and Safety Act 2000 will continue to apply to coal operations.

The Coalition supports the broad intent of the legislation. We will not oppose any move that will strengthen the protection offered to the men and women who work in coalmines. It is a dangerous occupation—although, not as dangerous as it was in the past—and that is why we do not oppose the legislation. I have been informed that coalmining companies support the provisions of the Coal Mine Health and Safety Bill, which improve consistency between coal industry specific requirements and the mainstream occupational health and safety regulations that will provide coalmine operators with the flexibility to establish effective management structures and systems to improve the safety and health of coal mine workers.

There are about 60 active coalmines in New South Wales directly employing 10,000 workers in open-cut and underground operations. Almost half the industry work force and two-thirds of physical output come from open-cut mines. The industry has made major advances with regard to health and safety issues, with the New South Wales Minerals Council and individual workplaces implementing new strategies and practices to reduce lost-time injuries and fatalities in coalmining. According to the Joint Coal Board's lost-time injuries and fatalities statistics for 2000-01, the frequency of workers compensation claims resulting in one or more days lost shows a dramatic decline in the period 1992 to 2001.

I suspect that anyone who has visited mines in the Hunter—as I did a week or so ago when I toured some Coal and Allied mines—would have noticed on entering a mine a major board showing, for the benefit of both visitors and coalminers, not the days lost but the number of days since the last accident. In many mines the number of such days is considerable. Joint Coal Board figures for coalmine fatalities show a decline from 17 fatalities in 1981 to just one so far in 2002. The Minerals Council has informed me that the safety performance of the industry is now on par with that of other industries, including forestry, agriculture, construction and heavy manufacturing.

The bill House has had a lengthy history, starting with the 1997 mine safety review that identified some shortcomings with the regulatory framework associated with coalmine health and safety. The consultative process for this bill began in July 2000 with the release of a discussion paper. The Government released a position paper in February this year, with feedback considered during the final drafting stages. However, some concerns remain about the speed with which the bill has come before the House this afternoon. It is a concern that the draft bill was not referred to the New South Wales Mine Safety Advisory Council for review or endorsement despite policy advice being that council's stated purpose. I understand further that the department and the minister's office resisted requests to refer the bill to the Coal Mines Safety Advisory Committee for review despite a resolution from the committee in this regard.

Following a six-month hiatus after the close of submissions on the safety works discussion paper, key stakeholders had only four days in which to review a 150-page first draft bill and then a whole 24 hours to review the revised draft. Despite the significant new requirements on contractors, they have had no opportunity to review or to comment properly on the bill as they are generally not members of the industry groups that were consulted. This is the typical scenario with which we are faced at the end of the parliamentary sittings each year. It is becoming the hallmark of this Government, as it tries to force through by the end of the sitting legislation that has not been considered properly.

As I said before, this bill will apply in addition to the Occupational Health and Safety Act 2000. Current Coal Mine Regulation Act regulations will be remade after the passage of this bill and additional new regulations will be made. Furthermore, consideration will be given to applying to coalmines hazard-based regulations under the Occupational Health and Safety Act. Employers and peak industry groups have identified several positive features of the proposed legislation, including greater consistency with the Occupational Health and Safety Act; placing primary responsibility on employers rather than on individual mine managers and other designated personnel; the requirement to implement a health and safety management system, which is already utilised widely by many mine operators across New South Wales; the placement of a rigid set of coalmine management and supervisory positions, with requirements for documented management structures comprising experienced personnel; and the retention of a specialised and expert mines inspectorate in the Department of Mineral Resources, with functions and powers consistent with WorkCover inspectors.

Despite our position of not opposing the bill, the Coalition shares the concerns of many industry representatives and employers relating to the workplace consultative mechanisms and the Construction, Forestry, Mining and Energy Union [CFMEU] industry check inspectors who will be put in place under this legislation. The bill strengthens considerably the powers and functions of government-funded district or industry check inspectors. Under the bill before the House, four industry check inspectors—who will be appointed directly by the CFMEU rather than employee elected—will have the power to stop work in coalmines across the State. In addition, coalmine operators will be required to forward to CFMEU offices a range of documents detailing health and safety management and safety incidents. CFMEU industry check inspectors will be able to delegate to a site check inspector their power to stop work. Workers at coalmines will be prevented from electing occupational health and safety inspectors and site check inspectors will be elected instead. Additionally, regulations to be made under the legislation will specify which workers at coalmines will be able to vote in elections for site check inspectors and will provide for a specified union to conduct such elections.

This is the part of the bill that concerns the Coalition. We understand that significant and detailed concerns about these provisions were expressed to the Government during the consultative and drafting process but, according to the Government, they are strictly non-negotiable. The coalmining companies are concerned that the details I have mentioned will entrench the CFMEU in the inspection process and that CFMEU officials will be able to use their power under the legislation to stop work over real or perceived safety concerns in order to further their own agenda. There is also a concern that the appointment of CFMEU officials will effectively double up on existing inspectorate powers afforded to the New South Wales Department of Mineral Resources. The Government has some questions to answer. Why has the CFMEU been offered an entrenched position of undeniable power in this bill? Why are these provisions non-negotiable? Is the Government being held to ransom by the CFMEU in this regard?

I emphasise that the Coalition is not seeking to water down in any way the health and safety provisions in this legislation. However, we are concerned that the Government is shifting from regulation to legislation—a function that will effectively entrench CFMEU officials in an undoubted position of power. I note that new mining legislative requirements were put in place in Victoria—which also has a Labor Government—at the end of October with absolutely no specified role for unions. Why has the New South Wales Government legislated to entrench their role? We will seek to amend the bill appropriately in Committee.

The Coalition does not oppose the establishment of the proposed Coal Competency Board to replace the Coal Mining Qualification Board. This board will oversee the development of appropriate competency standards and the assessment of people performing particular functions in coalmining operations. This is an important part of the bill and we recognise that it is essential that the appropriate training, assessment and accreditation is undertaken. The Minister for Land and Water Conservation in another place stated in his second reading speech on this legislation that it is important to learn from the past and to ensure that effective measures are in place to prevent accidents in coalmines. The Coalition supports that statement totally, and that is why we will not oppose this legislation.

The Hon. MELINDA PAVEY [4.08 p.m.]: The Opposition is also pleased to support the Coal Industry Amendment (Fees for Rescue Services) Bill, which seeks to amend the Coal Industry Act 2001 to permit fee charging by the Mines Rescue Service for the provision of rescue services after the first eight hours of an emergency at an underground coalmine. Many honourable members will be aware of the excellent work done by accredited mines rescue units across New South Wales. The highly trained members of mines rescue brigades undertake difficult, dangerous work at the time of accidents in underground coalmines, often putting themselves at risk to save the lives of miners trapped underground. It is a sad fact that accidents do happen in underground coalmining operations, and it is only through the excellent work of these dedicated and highly trained rescue personnel that the death toll from underground mining operations is not greater.

The former Mines Rescue Board and the Joint Coal Board ceased to exist from 1 January this year. The activities of the two entities were placed with a new private company called Coal Services Pty Ltd, which is now charged to provide occupational health and safety, workers compensation and the Mines Rescue Service to the New South Wales coal industry. Coal Services Pty Ltd is owned by the coal industry, with the New South Wales Minerals Council and the Construction, Forestry, Mining and Energy Union [CFMEU] each taking a 50 per cent shareholding in the company. The board of directors of Coal Services includes: two from the New South Wales Minerals Council; two from the CFMEU; two independent directors; and a seventh director to be the managing director and chief executive officer of the company

The reason that I have highlighted the structure of the board of Coal Services Pty Ltd is that the proposed legislative change allowing Mines Rescue Pty Ltd to charge a fee for service in underground rescue operations exceeding eight hours resulted from a request from the board. In other words, it has the support of both industry and the union movement. It is testament to the New South Wales coal industry that fatalities in New South Wales underground coalmines have fallen from a high of 16 in 1980-81 to just two in 2000-01. However, there will always be a need for a well-resourced and well-funded rescue service to provide rescue operations when they are needed. That is the nature of this industry.

The move to cost recovery is reflective of the need to maintain Mines Rescue Pty Ltd in an acceptable financial position. It is important to note that the proposed cost recovery measures do not extend to the other core work of mines rescue—that of training and equipping rescue brigades at underground coalmines. Instead, in the event that a rescue at an underground coalmine takes longer than eight hours, the service will shift to a cost recovery basis. I have been informed that if the cost recovery mechanism does not take effect then it is likely that there would be a need in the future to raise the level of the compulsory levy that all coalmines in New South Wales pay annually to fund rescue services. While large corporate operators may not have a problem with funding an increased levy, smaller operators and mines operating at the edge of their financial resources may have some difficulty in meeting an increased levy. That in turn could lead to the closure of some of those marginal operators if they are unable to meet their annual levy contributions.

I take this opportunity to extend the congratulations of this House to the New South Wales Minerals Council on its recent innovative solutions to safety risks in New South Wales mines awards. The council recently presented a range of awards to creative and innovative solutions that will prevent injuries and accidents in mines. The winner of the award was the Camberwell Coalmine at Singleton for its hydraulic pressure bleed manifold which prevents serious burns, eye injuries and oil injection injuries by allowing the safe release and testing of hydraulic systems in heavy equipment commonly used across the mining industry, such as excavators and front-end loaders. It also enables the environmentally friendly disposal of hydraulic system oils. Our congratulations to that company for its innovative solution.

I am sure that some of the other award recipients will be able to make an ongoing contribution to the coal industry across the world. They certainly need some better answers in China where there are large numbers of injuries and deaths in coalmines. In conclusion, the Opposition is pleased to be able to support this legislation. I want to extend the thanks of the Deputy Leader of the Opposition to the executive director of the New South Wales Minerals Council, John Tucker, for his advice on this matter. John is also one of the directors of Coal Services Pty Ltd. The Opposition offers support for this important legislation.

Reverend the Hon. FRED NILE [4.14 p.m.]: The Christian Democratic Party supports the Coal Mine Health and Safety Bill and the Coal Industry Amendment (Fees for Rescue Services) Bill. The Coal Mine Health and Safety Bill will replace the outdated Coal Mines Regulation Act 1982 with modern legislation to better protect the health, safety and welfare of people who work in the coal industry. A couple of years ago the Standing Committee on Law and Justice, chaired by the Hon. Brian Vaughan, conducted an inquiry into workplace safety and inspected various mines in the Hunter Valley. We inspected a longwall mining operation. We travelled in an underground mobile vehicle and then, on reaching the end of the tunnel, we walked to the coal longwall mining operation. We wore safety helmets, jackets and heavy rubber boots. I admired miners working in such conditions. I know that longwall mining has been introduced to speed up and more efficiently remove coal from mines but that operation certainly increases dangers to miners. There is a lot of noise and coal dust when a wall is virtually removed. Metal pneumatic machinery holds up the wall of the coalmine and inches along and it is almost like looking at a scene in a Dante painting.

The Hon. Duncan Gay: That is the closest you will ever get to Hades.

Reverend the Hon. FRED NILE: That is the point I am making. I have always had great admiration for coalminers but having been in the mine my admiration dramatically increased. Safety issues are so important for them and that is why we are very pleased to support this legislation. We know that the large coalmining industry is very important in this State. This legislation is designed to protect the health and safety of 9,500 coal mine workers in this State. The industry brings in a great deal of revenue for New South Wales and Australia. The total production last financial year was more than $5 billion. We need health and safety legislation because, tragically, since 1900 more than 1,500 coalminers have been killed in New South Wales. I imagine that is the highest death rate of any industry in Australia.

This year was the centenary of the Mount Kembla disaster when 95 men and boys lost their lives. Other tragedies include the 1923 Bellbird colliery accident in which 21 lives were lost; the 1965 Bulli colliery fire in which four miners died; the 1979 Appin colliery explosion in which 14 lives were lost; and the 1991 roof fall at the Western main colliery when three lives were lost. In 1996 at the South Bulli colliery three people lost their lives when miners suddenly broke into an old tunnel which was full of water, and similarly four lives were lost at the Gretley mine. We do not need to be reminded of the dangers inherent in underground coalmining in this State.

We also inspected a number of open coalmines. Open coalmining does not compare with underground mining as a dangerous occupation, but it involves different types of dangers. When we inspected the open coalmines I noted the presence of huge trucks; they gave the impression of being almost as big as this Chamber. Huge excavators remove coal from the walls of the mines and then place it in huge trucks. Obviously, if the miners are not careful, if a mine operator is careless, or if there is a mishap, miners could still be killed in an open coalmine. We are pleased to support the Coal Industry Amendment (Fees for Rescue Services) Bill, which will allow for more modern health and safety management practices with, importantly, an emphasis on consultation with the work force.

In the past there was almost a tradition in Australian mines, and perhaps in mines in the United Kingdom, of confrontation: the mine owners and/or operators versus the miners. We must move beyond that, and I believe that that is the purpose of this bill with its emphasis on consultation. That is probably one reason why the Government has continued with industry check inspectors. Although the Opposition gave the impression that it is an innovation, I understand that it is not. I have been advised that industry check inspectors have always been nominated by the Mining and Energy Division of the Construction, Forestry, Mining and Energy Union [CFMEU]. I imagine that the check inspector initiative offers an incentive for mine operators and miners to work in a spirit of co-operation, the bottom line being miner safety and a reluctance to use these powers for frivolous reasons, for example, to cause a mine to stop operating if another union demanded a wage increase.

I expect the industry check inspectors to carry out their duties correctly and not to abuse the position they hold. The purpose of the provision seems to be to achieve co-operation and to encourage miners and their representatives to work in harmony with mine operators. We are concerned that deleting that provision could cause alienation and take the industry one step back instead of moving forward. We support the Coal Industry Amendment (Fees for Rescue Services) Bill.

The Hon. IAN COHEN [4.22 p.m.]: The Greens support the Coal Industry (Fees for Rescue Services) Bill which, while providing for fee for rescue services beyond eight hours, should not result in any disincentive to mining companies availing themselves of opportunities for equipping, training and safety auditing of day-to-day mining practices, which could otherwise be the case. Only by the timely and regular attendance to mining safety matters can the considerable hazards of this activity be minimised. A fee for extended service only may provide an incentive to improve workplace standards.

It is to be hoped that the less dramatic but, nevertheless, important sources of mine-related mortality and morbidity—the day-to-day hazards of dust, fumes, noise, vibrations and a host of other dangers, both underground and at the surface—do not slip into the background. Only by continual vigilance and improvement to coalmine workplace health and safety can we as a society justify our dependence on this activity, which is damaging specifically to the health of those who extract coal for us, and to all of us through destabilisation of the climate on which our collective health and safety depends.

I turn now to the Coal Mine Health and Safety Bill. Coalmining has always been a dangerous business. Indeed, only the organisation of workers into unions has forced improvements to health and safety conditions over time. For decades miners suffered from black lung as a result of breathing in coal dust, even though the technology for removing it had long been available. Too many miners died a horrible death as a result; so, too, those who perished down the mines as a result of cave-ins and subsidences. Fortunately our society has legislated to ensure that there are adequate standards to minimise such occurrences. Even so, even with our laws and precautions, far too many miners still perish down the mines. Our society has made a deal with the devil in becoming so reliant on coal as our primary source of energy. Is it any wonder that this lustrous black inheritance makes possible a lifestyle unprecedented in history? Now, however, the world's top scientists are suggesting that it is unwise to continue with this lifestyle, although there is still coal underground, because of the negative climatic consequences of our high life.

The Hon. Duncan Gay: Point of order: While the honourable member's contribution up until now has been totally within the leave of the bills, he is now moving into an area that I believe is well outside the leave of the bills. I totally agree with the commitment he made earlier, but he is now addressing the rights and wrongs of using coal, which are completely outside the purview of the bills before the House. I ask you to draw the honourable member back to the bills before the House.

The Hon. IAN COHEN: To the point of order: It will probably take longer to respond to the interjection than to read the few remaining lines of my speech. The health and safety of miners is very much tied up with the important use of the product. Drawing another relevant factor into the use or otherwise of coalmining is not unreasonable in terms of extrapolating the health and wellbeing of miners in relation to the health and wellbeing of all people involved in this industry and outside.

The PRESIDENT: Order! It is a convention in this House that members may make general comments about aspects of a bill that is being debated. The member may proceed.

The Hon. IAN COHEN: Addicted as we have become to this treasure trove of the distant past, we are obliged to ensure that those who work in this most dangerous workplace are properly protected. Recently, the body in charge of mine safety—the Commonwealth-State Joint Coal Board—was swept away, to be replaced by a private company operated by the the Construction, Forestry, Mining and Energy Union [CFMEU] and the Minerals Council jointly established last year. Now, less than a year after we passed that coal industry bill into law, we are faced with another weighty, 120-page bill which seeks to give effect to the far-reaching changes in the way health and safety are managed. Guidance from the Federal Government is nowhere to be seen, despite the strong recommendation of the International Labour Organisation Convention on Safety and Health and Mines, that national consistency is a key factor in ensuring effective delivery.

Nonetheless, the Greens note the assurances of the Mining and Energy Division of the CFMEU that it has played an integral role in the development of the bill and believes that it will improve coalmine health and safety. Unfortunately, this legislation continues the artificial distinction between the verb "to mine" and the noun "mine". It is not obvious at first, but the activity of exploration appears to be exempt from this bill, because while mine owners may have built what looks like "a mine", miners are not "mining" under the narrowest possible meaning of the verb but exploring. This continues the artificial distinction and protection of the minerals exploration industry, which is also exempt from many of the environmental controls under which other industries are required to operate. The election of site check inspectors by the work force is a welcome step, but we are disappointed that the right to know of the work force and of the wider community is suppressed by restrictions on the information that may be disclosed. That only one-third of workplace agreements make reference to occupational health and safety matters is a sad reflection on the low status these important matters have in practice.

It is difficult to accept that this results from a lack of interest in occupational health and safety by the work force; rather it is the result of the difficult bargaining environment in which workers are placed when these matters are relegated to the bottom drawer. There has to be consultation with the people who work at the coal operation in setting up the health and safety management system. We applaud this provision and hope that all mineworkers will be able to use this opportunity to render their workplaces, on which we all depend, much safer than they have been in the past. The Greens support both pieces of legislation.

The Hon. IAN MACDONALD (Parliamentary Secretary) [4.30 p.m.], in reply: I thank honourable members for their contributions to debate on the Coal Mine Health and Safety Bill. I have a lengthy address in reply and seek leave to incorporate it in Hansard. I have specific points to make about the matters raised by the Deputy Leader of the Opposition and I will deal with them in Committee.

Leave granted.

I would like to take this opportunity to address the concerns raised in the debate on the Bill.

Firstly, the Opposition expressed a concern that this Bill was not subject to adequate consultation.

This certainly was not the case.

In developing this Bill, extensive consultation took place over an 18-month period.

This involved the public release of both a discussion paper and position paper, which forms the policy basis for this Bill.

The Mine Safety Council was directly involved in the preparation of the discussion and position papers, which formed the basis for further consultation.

It is the height of hypocrisy that the Opposition claims there has been inadequate consultation.

The Shadow Minister for Mineral Resources, the Honourable Duncan Gay, failed to provide a response to the Government's position paper, despite a written assurance that a response would be forthcoming.

This failure indicates that the Opposition either doesn't have any policies or doesn't see mine safety as a priority.

There seems to be some confusion within the Opposition in regard to the arrangements for Industry Check Inspectors.

Industry Check Inspectors, known previously and more commonly as District Check Inspectors are vital health and safety personnel that have been contributing to mine safety since early last century.

History has shown the importance of the role of these positions in saving the lives of mineworkers.

In 1997, for example, at a Hunter Valley colliery, employees were exposed to diesel machines that had not undergone weekly gas testing.

This presented a potential hazard, which could have serious health effects from exposure to toxic gases.

The Industry Check Inspector took action and required untested diesel machinery to cease operation until tests were undertaken.

When the Department of Mineral Resources' Inspector reviewed the Industry Check Inspector's notice they found it to be appropriate.

In another example, coal mine workers were exposed to the potential risk of a roof collapse late last year at an Illawarra colliery.

Roof collapses have over many years resulted in the loss of lives.

In this case, the Industry Check Inspector issued a notice requiring a method of roof support being established that did not expose workers to the potentially catastrophic risk of an unsupported roof.

The Government Inspector in this case supported the action of the Industry Check Inspector, suspending operations in that coal panel.

History shows that the powers of Industry Check Inspectors have been used sparingly and responsibly.They have only been used in circumstances that clearly warranted their use.

The Bill essentially maintains the status quo in regard to the powers and authority of Industry Check Inspectors currently available under the Coal Mines Regulation Act.

The Government's approach on Industry Check Inspectors was outlined in the Government position paper released in February of this year.

At the time, the Opposition failed to raise any objections.
This is however not surprising, as previous Coalition Governments have supported the important safety role of these positions.

During the Griener and Fahey Governments, the Coalition has consistently supported the important role of the CFMEU in coal mine health and safety issues.

In fact the Griener and Fahey Governments provided a total of $560,000 to the CFMEU to help fund their District Check Inspectors.

This is money well spent and has been maintained by this Government as it contributes to improved mine safety.

It is worth noting that since 1984, the law in NSW has provided for Industry Check Inspectors to be elected by members of the CFMEU.

This was the case even throughout the period of Coalition Government for very good reasons.

The CFMEU pays for over three-quarters of the total costs associated with Industry Check Inspectors.

The CFMEU is making a significant financial contribution to improve mine safety on behalf of their members.

More importantly, what has been critical to the success that Industry Check Inspectors have had in saving mineworkers lives has been their independence.

In addition to the role of industry compliance and Government mine safety law enforcement officers, Industry Check Inspectors have a vital role in protecting the lives of the State's mineworkers.

Their capacity to be an independent check and balance on mine safety and so contribute to better safety outcomes, is a role that is supported by this Government.

The involvement of employee representatives is crucial to improving mine safety.

This involvement reflects one of the key recommendations of the Mine Safety Review, which identified the need to ensure appropriate consultation with all key stakeholders including employee representatives.

The coal mining industry has a long history of the work force being able to elect representatives, known as 'Site Check Inspectors' who could then conduct safety inspections on their behalf.

Site Check Inspectors have a very similar role to the Occupational Health and Safety representatives introduced by the Occupational Health and Safety Act 2000.

To reflect the particular risks inherent in coal mining, Local Check Inspectors are provided with necessary powers to ensure mineworkers can be protected from imminent danger.

Local Check Inspector arrangements have been essentially retained in the Bill and Local Check Inspectors are referred to as Site Check Inspectors.

Under the Bill, all those employed in or about a coal operation are entitled to vote to elect a Site Check Inspector.

The Bill does provide the capacity for a Site Check Inspector at a coal operation to be delegated a power to suspend operations where there is an imminent danger to the safety or health of persons.

There are, however, strict procedures and conditions that must be met before a Site Check Inspector can be delegated this power and then exercise it.

The Site Check Inspector will only be able to exercise that power if they have received prescribed training and the Industry Check Inspector is not available or it is not practicable for them to attend at short notice.

As is the case now, these notices will cease to have effect if withdrawn by the issuing Site Check Inspector or, automatically, on attendance and assessment by a Government inspector.

Most importantly, the Bill provides an important safeguard by allowing for the disqualification of a person acting in the role of a Site Check Inspector should they misuse their powers.

In conclusion, I thank all Honourable Members who have contributed to the debate on the Bill.

I commend the bill to the House.

Motion agreed to.

Coal Mine Health and Safety Bill read a second time.

The CHAIRMAN: Order! The Committee will deal with the Coal Mine Health and Safety Bill.

Parts 1 to 9 agreed to.

Part 10

The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [4.34 p.m.]: I move Opposition amendment No. 1:

No. 1 Page 81, clause 173 (1) (a), lines 11 and 12. Omit all words on those lines.

The Opposition has moved this amendment because it is concerned with the entrenched position the Construction, Forestry, Mining and Energy Union [CFMEU] will gain under the bill. The honourable member for Swansea in the other place made a lengthy contribution criticising the Opposition for the position it has adopted on this section of the bill.

The Hon. Jennifer Gardiner: Which union is he in?

The Hon. DUNCAN GAY: One wonders what union he is in or which union sponsors him. The former Coalition Government did fund the position of district chief inspector provided by the CFMEU but I emphasise that that is not the current proposal. The current proposal pulls the CFMEU role out of the regulation and puts it fair and square in the legislation. Again I emphasise we are not trying to wind back any of the safety regimes put in place through this legislation. As I indicated in my speech on the second reading, the extra safety provisions were crucial and important. I cannot stress that point enough. The sections of this bill relating to the power of the CFMEU are of great concern. Detailed examination of the bill shows that the legislation is essentially inconsistent with a recent agreement reached by all mineral and petroleum resource Ministers to adopt a consistent approach to mine safety through the strategic mine safety framework.

As I said earlier, Victoria's new mine safety regulations, which commenced at the end of October, did not contain any specific union role. In Victoria, consultation and workplace representation is in line with the general occupational health and safety requirements and not in line with a specific union. Concerns have been raised in relation to the CFMEU's role as proposed in the bill. They include the fact that this is specifically special treatment for the CFMEU and the impact of these sections of the bill on non-union workplaces. I do not know how it will work in those mines that do not have CFMEU people. Does that mean that to fulfil this role the mine will have to import CFMEU people? No other New South Wales industry sector has union-specific provisions entrenched in its legislation. Concerns have also been raised about the removal of the current requirement for inspectors to have minimum safety qualifications and the fact that the Minister for Mineral Resources is unable to refuse to appoint a person to these positions.

In summary, the Coalition remains opposed to an entrenched position for the CFMEU in this legislation. I repeat for the benefit of Government members, we are not watering down safety provisions in this bill. We are not trying to unravel the mechanisms and safety regimes in this important bill; we are just against special treatment for mates.

The Hon. IAN MACDONALD (Parliamentary Secretary) [4.36 p.m.]: The Government does not support this amendment, which would end the current arrangements for industry check inspectors, a vital group of individuals who play a key role in protecting and maintaining safety standards in coalmines. The Coalition has criticised the provisions in the bill that allow the Construction, Forestry, Mining and Energy Union [CFMEU] to appoint industry check inspectors. Its belated opposition to this provision is nothing more than shameless political grandstanding. The law currently states that industry check inspectors are selected by the CFMEU. I remind the Hon. Melinda Pavey that this is the very same law that was in force for the entire period of the Greiner and Fahey governments. Any honourable member who wants to check this needs only to refer to clause 6 of the Coal Mines Regulation (Election of Check Inspectors, District Check Inspectors and Electrical Check Inspectors) Regulation 1984. When the Coalition was in government it was quite happy for the CFMEU to select industry check inspectors.

There is more. The Greiner and Fahey governments provided $560,000 directly to the CFMEU to help fund its industry check inspectors. It is understandable that the Greiner and Fahey governments, like the Carr Government, recognised the importance of the industry check inspectors selected by the CFMEU. Industry check inspectors save mineworkers lives. For example, late last year at an Illawarra colliery coal mine workers were exposed to potential risk of a roof collapse. As honourable members will appreciate, roof collapses can result in serious loss of life. In this case the industry check inspector attended the scene and issued a notice prohibiting work until a safer method of roof support was used. The government inspector later arrived on the site and supported the action of the industry check inspector. The industry check inspector's decisive action probably saved lives.

Finally, the election of industry check inspectors is covered by the rules of the CFMEU and the Workplace Relations Act. Clause 173 of the bill has been drafted to reflect this, rather than relying on the wording of previous or existing regulations. The Opposition's amendment is purely political and, if successful, would put at risk a successful part of our safety regulations.

Question—That the amendment be agreed to—put.

The Committee divided.

Mrs Forsythe Mr Gallacher Miss Gardiner Mr Gay Mr Harwin

Mr M. I. Jones Mr Lynn Mr Oldfield Mrs Pavey Mr Pearce

Dr Pezzutti Mr Samios Tellers, Mr Colless Mr Jobling

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 Reverend Moyes Reverend Nile Mr Obeid Ms Rhiannon

Ms Saffin Mrs Sham-Ho Ms Tebbutt Mr Tsang Dr Wong Tellers, Ms Fazio Mr Primrose

Mr Ryan

Mr West

Question resolved in the negative.

Amendment negatived.

Part 10 agreed to.

Parts 11 to 14 agreed to.

Schedules 1 to 3 agreed to.

Title agreed to.

Coal Mine Health and Safety Bill reported from Committee without amendment and passed through remaining stages.

The PRESIDENT: Order! The House will resume debate on the Coal Industry Amendment (Fees for Rescue Services) Bill.

The Hon. IAN MACDONALD (Parliamentary Secretary) [4.48 p.m.], in reply: I seek leave to incorporate my speech in reply to the second reading debate.

Leave granted.

I thank honourable members for their contribution to the debate.

This Bill amends the Coal Industry Act 2001 to permit fee-charging by the Mines Rescue Service for the provision of rescue services after the first 8 hours (or greater prescribed period) of an emergency at an underground coal mine.

Currently Section 22 of the Coal Industry Act prohibits the charging of fees by Mines Rescue Pty Limited in the exercise of its underground coal mine rescue services.

The board of directors of the company has unanimously requested the legislative change on the basis that—

• the costs of a major rescue emergency would be financially crippling for the company;

• fee-charging after the first shift is the accepted industry practice; and

• the alternative action in increasing annual financial levies payable by all coal mine owners could result in the closure of the more economically marginal mines.

Fee-charging will only apply to rescue services in an 'emergency' and will not apply to the company's exercise more general functions (eg training and equipping of brigades) at underground coal mines.

The proposed regulation-making power will be limited only to increasing the allowable fees-free period of the first 8 hours.

This proposal is supported by the NSW Minerals Council and the CFMEU—Mining Division.

I commend the Bill to the House.

Motion agreed to.

Coal Industry Amendment (Fees for Rescue Services) Bill read a second time and passed through remaining stages.

The Hon. Helen Sham-Ho, as Chair, tabled Report No. 23, entitled "Report on Guidelines Concerning Unauthorised Disclosure of Committee Proceedings", dated December 2002.

Ordered to be printed.

The Acting Clerk Assistant tabled, in accordance with the resolution of the House of Thursday 21 November 2002, documents relating to the proposed Port Botany Expansion received by the Acting Clerk today from the Director-General of the Premier's Department and referred to in paragraph 1 of the resolution, together with an indexed list of documents.

The Acting Clerk tabled a return identifying documents considered privileged, which under paragraph 4 of the resolution should not be made public or tabled. In accordance with the resolution the Acting Clerk advised that the documents were available for inspection by members of the Legislative Council only.

Debate resumed from 21 November.

The Hon. JAMES SAMIOS [4.52 p.m.]: The purpose of this bill is to amend provisions of various crimes legislation in procedure and principle. It is designed to make the criminal justice system more efficient. The Opposition recommended a number of the proposed reforms. The bill is a continuation of a series of reforms to crimes legislation as part of the State Government package to make the court system more efficient and to continue to make issues of the justice system more black and white. First, the bill provides for changes to the Bail Act 1978 to set out the conditions under which, and the extent to which, the Supreme Court may review bail conditions or decisions made in other courts. Second, the bill will remove the presumption of bail allowed for criminals who commit further crimes while in custody for a separate offence. Third, it will ensure that the presumption against bail for serious drug offences remains, and makes clear the provisions of the Act which refer to applications for, and the granting of, bail.

The bill also provides for amendments to be made to the Children (Criminal Proceedings) Act 1987 to ensure that children who commit offences under the Firearms Act 1996—specifically, offences that relate to the manufacture or sale of firearms, if the offences are punishable by imprisonment of 20 years or more—are prosecuted by law and not in the Children's Court. The amendments will specify the criteria a court must take into account when a decision is made as to the system under which a child will be tried. The amendments will also provide that a court may take into account, when deliberating on a confiscation order, any property or benefit of a defendant standing trial for a serious crime, and any gain derived by the defendant through his or her notoriety as a criminal—for example, threats or minor standover tactics that have resulted in monetary or property benefits, but did not involve the commission of further crimes.

The Crimes Act 1900 also will be amended to remove a possible anomaly in respect to when a murder may be reduced to manslaughter. The changes will ensure that Crown Prosecutors, Acting Crown Prosecutors, Sheriffs Officers and solicitors who are employed by the Director of Public Prosecutions are "law enforcement officers" for the purposes of division 8A, "Assaults and other actions against police and other law enforcement officers". These changes will ensure that the residential address of a health care provider does not need to be stipulated on an application for an apprehended personal violence order, and that a work address will be sufficient. The Crimes (Sentencing Procedure) Act 1999 will also be amended to allow a Local Court to impose a second sentence on top of a first sentence, up to a total of no more than three years and six months if the conviction relates to the assault of a correctional officer while the offender is in a correctional facility for the original crime, and clarifies operating standards for the provision of applications for the redetermination of life sentences.

The Criminal Procedure Act 1986 and the Justices Act 1902 are also amended to allow magistrates to issue warrants for the arrest of accused persons who are not present during summary proceedings or committal hearings. The Mental Health Act 1990 will be amended to provide for the transfer of inmates back to standard correctional facilities after the completion of treatment for mental illness which is ordered as part of a sentence. The Mental Health (Criminal Procedure) Act will also be amended to enable a magistrates to order that a person who has breached a discharge order be brought back before the magistrate, and to define the categories of persons who should be dealt with under section 32 of the Act. The amendments will also enable the making of community treatment orders under the Act without an inquiry being held into a case under the Mental Health Act 1990.

The bill will also amend the Search Warrants Act 1985. The amendment will enable a person who is arrested by police at premises being searched under a search warrant to be detained at the premises at the discretion of police for a limited time. The amendments will specify the time period which is asserted to be a "limited time", and sets the conditions for periodic detention. I reiterate that the Opposition does not oppose the bill. But I note that many of the amendments proposed by the Government originated from the Opposition in support of the preservation of law and order, and recognition by the Opposition of the need for a speedier, more accurate and more equitable system of justice. The Opposition will accept the amendments that have been circulated, except for the amendment relating to the Children's Court, which has been discussed with the Minister's officers. I understand that that amendment will be dealt with during the Minister's reply.

Reverend the Hon. FRED NILE [4.58 p.m.]: The Christian Democratic Party supports the Crimes Legislation Amendment Bill. The bill sets out a number of miscellaneous reforms that are designed to improve the delivery of justice and administration of criminal law in this State. It covers a number of legislative fields, including the Bail Act 1978. The Christian Democratic Party supports the proposed amendments. We believe that the amendments will result in the Bail Act working more efficiently. The proposed amendments to the Children (Criminal Proceedings) Act 1987 will codify the criteria that magistrates are to take into account when deciding whether a person should be dealt with according to law, or in accordance with the Act. It will include firearms offences within the definition of "serious children's indictable offence". A concern which has been expressed in Australia, particularly in Sydney, and which is a major subject of discussion in the United States of America, is why children's courts are closed.

We have always accepted that as a fact of life but there is now growing concern. One might say that there is a public perception that justice may not be being done in the Children's Court. Having them closed suggests a degree of secrecy. There are moves in the United States of America now to consider opening children's courts while maintaining suppression of the names and images of child defendants. The courts are closed to protect children but the public should be able to know what happens in the Children's Court, especially as brutal murderers and rapists aged 15, 16 and 17 have recently been convicted. In many ways we would not regard people of that age as children—rather, as young adults—so why should they have extended to them the benefits or privileges of the Children's Court? I ask the Government to consider adopting developments in the United States in this regard.

We support the amendment to the Confiscation of Proceeds of Crime Act 1989. Some serious offenders, because of their notoriety, have been paid for writing books, providing articles or even doing paintings. People seem to want paintings by notorious murderers. If criminals receive money in that way, the State should be able to confiscate the money and use it to the benefit the community. That is a great idea. We support the amendments to the Crimes Act 1900, the Crimes (Sentencing Procedure) Act 1999, the Criminal Procedure Act 1986, the Mental Health (Criminal Procedure) Act 1900, and the Search Warrants Act 1985. I have previously commented on major problems occurring with search warrants, mainly through the actions of people such as John Marsden who are expert at finding technical errors in search warrants with the result that evidence collected under such search warrants, which is often crucial to the prosecution case, cannot be presented in court.

I have mentioned before the case of Mr Burrell and the kidnapping and almost certain murder of Mrs Whelan. When such critical pieces of evidence such as point notes indicating a kidnapping plan and others outlining a plan for ransom are disallowed in court because of a technicality involving a search warrant, the justice system is brought into disrepute. I urge the Government in its review of the legislation to find some way of overcoming that dilemma. If a search warrant is ruled invalid for some technical reason, an appeals court or some other body should be able to overrule the decision of the judge who orders the inadmissibility of evidence obtained as a result of a so-called faulty search warrant. This would be to the benefit of justice. And that is the key objective: to have justice in this State. We support the bill.

The Hon. IAN COHEN [5.04 p.m.]: The Greens support the Crimes Legislation Amendment Bill but have some concerns about it. The bill sets out a range of changes to criminal legislation relating to matters of both procedure and policy. The Government claims that the purpose of the bill is to "facilitate the efficient delivery of criminal justice in this State". The Greens support some of the changes proposed by the bill but not others. I understand that the Government has recently withdrawn its original proposal to increase the Children's Court sentencing cap from 3 years to 3― years. The Greens are pleased with the late changes to the bill and thank the Government for them. Unfortunately, the information provided by the Government on the changes proposed by the bill has been somewhat insubstantial given that some of the changes could have serious implications. This is part of the problems of dealing with legislation at this time of the year and at this stage of a Parliament.

One concern is that the amendment proposed in schedule 3 to the Confiscation of Proceeds of Crime Act, particularly the definition of "tainted property", needs to be refined in order to place a limitation on its impact. At present the definition is far too wide. This definition, unless limited as suggested by the Law Society, could have unjust implications. In regard to the Bail Act, the Government is seeking to remove the presumption in favour of bail for a person charged with an offence alleged to have been committed while the person was an inmate of a correctional centre. The Greens are strongly opposed to the removal of the presumption in favour of bail in these circumstances. Removing a presumption in favour of bail can quite significantly limit the person's liberty and can have significant impacts upon a person's choices and interaction with the criminal justice system. A person is innocent until proved guilty. This fundamental tenet of the common law must be preserved. Each case must be weighed on its merits without prejudice.

The Greens support the Government's efforts to clarify the original legislative intent of self-defence and also its moves to allow health care workers who apply for an apprehended personal violence order not to supply their residential addresses in their applications. The Greens do not support the amendments to the Crimes (Sentencing Procedure) Act, whereby the Government is seeking to allow the Local Court to exceed its three-year accumulated sentencing cap in circumstances where a prisoner has assaulted a prison officer. The Greens do not support these reactionary amendments, which seek to allow the court to impose an additional consecutive sentence. In general, the Greens support the bill but have reservations about some aspects of it.

The Hon. IAN MACDONALD (Parliamentary Secretary) [5.07 p.m.], in reply: I thank honourable members for their contributions to the debate. The bill sets out various non-contentious amendments to legislation to improve the administration of criminal law in this State. I seek leave to have the remainder of my short speech in reply incorporated in Hansard.

Leave granted.

The areas that the bill addresses are wide ranging. They relate to:

• Detention of arrested persons for the purpose of carrying out a search warrant;
• Mental Health;
• Protection of public servants;
• Clarification and codification; and
• Various other "Tidy up" provisions.

I turn now to a matter raised in the debate:

In relation to the concerns raised in relation to amendments to section 25 of the Confiscation of Proceeds of Crime Act 1989, 1 make the following comments.

The amendment set out under item [1] of Schedule 3 to the Bill creates a further category by which benefits can be confiscated from persons who have committed a serious offence. The Bill would ensure that that the benefits gained by a serious offender, who has commercially exploited his or her notoriety as a criminal, can be included in asset confiscation proceedings This could include, for example, any fee or other benefit provided by a publisher or broadcaster for an interview, article or book about the defendant's exploits.

It offends common decency that a convicted criminal, who may have caused considerable suffering to victims of his or her crime, would be able to gain a financial or other benefit by reliving and reviving the criminal act. This amendment will go some way to deterring such shameless behaviour, and may provide some comfort to grieving victims to know that their pain cannot in future be exploited by the offender for personal gain.

In relation to concerns raised in relation to the search detention periods, I make the following comments:

This scheme overcomes serious practical problems that police have encountered when executing search warrants. Where a person arrested at a scene is the owner or occupier of the premises, he or she also has an interest in remaining. However, the Government recognises that they are entitled to certain rights, such as access to legal advice, and as such this scheme endeavours to ensure that those rights are protected as far as is reasonably possible.

The Government also wishes to ensure that the total time that a person is arrested and detained by the police before being taken before a justice is reasonable in all the circumstances. It is highly undesirable that police detain a person for excessive periods of time. All the circumstances must be taken into account on a case by case basis to make this determination.

The Government has not prescribed a particular length of time, as in some cases it may be simply a matter of a few hours (for example, considering an arrested person's mental health) or as long as several days (for example, where an arrested person is admitted to a hospital for medical treatment for several days, and while there remains in the custody of the police officer).

The Attorney General's Department consulted with members of the Working Party on Part 10A of the Crimes Act 1900. It is a commendable balance of the interests of both police and arrested persons. The provisions will be reviewed after 12 months, and at that time submissions will be sought from interested stakeholders.

This Bill proposes a series of reforms, concerning matters of both procedure and principle that are designed to facilitate the efficient delivery of criminal justice in this State.

I commend the Bill to the House.

I put on the record in relation to Government amendment No. 2, which the Hon. James Samios referred to in his contribution, that paragraphs (a) and (b) of proposed section 33AA (5) restate the existing law. They do not reflect amendments to the law. They are designed to reflect existing section 33A (4). I commend the bill to the House.

Motion agreed to.

Bill read a second time.

Clauses 1 to 4 agreed to.

Schedule 1 agreed to.

The Hon. IAN MACDONALD (Parliamentary Secretary) [5.09 p.m.], by leave: I move Government amendments Nos 1 to 11 in globo:

No. 1 Page 6, schedule 2. Insert after line 3:

[1] Section 3 Definitions

Insert in alphabetical order in section 3 (1):

juvenile justice officer means a juvenile justice officer employed in the Department of Juvenile Justice.

person subject to control has the same meaning as it has in the Children (Detention Centres) Act 1987.

No. 2 Page 6, schedule 2. Insert after line 21:

[3] Section 33A Cumulative or concurrent orders etc

Insert after section 33A (5):

(6) This section does not apply to a control order to which section 33AA applies.

[4] Section 33AA

Insert after section 33A:

33AA Cumulative or concurrent orders - assault on juvenile justice officers

(1) In this section, control order means an order referred to in section 33 (1) (g).

(2) This section applies to a control order made by the Children’s Court (the new control order) if:

(a) the order is made in relation to an offence involving an assault, or any other offence against the person, on a juvenile justice officer committed by a person while the person was a person subject to control, and

(b) the person is subject to another control order (the existing control order) at the time the new control order is made.

(3) The period for which the person is required to be detained under the new control order commences when the period for which the person is required to be detained under an existing control order expires, unless the Children’s Court directs that the period is to commence sooner.

(4) Such a direction may not be given unless the Children’s Court is of the opinion that there are special circumstances justifying such a direction.

(5) The Children’s Court must not make a new control order, or give such a direction, if the order or direction would have the effect of requiring a person:

(a) to be subject at any time to control orders requiring the person to be detained for more than 3 years (taking into account any period for which the person has already been detained under an existing control order), or

(b) to be detained for more than 2 periods specified in different control orders, being periods that are not to any extent concurrent.

No. 3 Page 6, schedule 2. Insert after line 25:

[4] Schedule 2

Insert at the end of the schedule (with appropriate Part and clause numbers):

Part Provision consequent on enactment of Crimes Legislation Amendment Act 2002

Application of section 33AA

Section 33AA, as inserted by the Crimes Legislation Amendment Act 2002, applies only to a new control order (within the meaning of that section) made in relation to an offence committed after the commencement of that section, and so applies whether or not the existing control order (within the meaning of that section) was made before the commencement of that section.

No. 4 Page 6, schedule 2, Explanatory note. Insert after line 36:

Item [4] inserts a new section 33AA into the Act dealing with the making of a control order by the Children’s Court for an offence involving an assault, or other offence against the person, against a juvenile justice officer committed while the person being dealt with by the Children’s Court was detained in a detention centre after being found guilty of committing an offence.

The new section requires the new control order to be consecutive with any other control order to which the person is subject, unless the Children’s Court is satisfied that there are special circumstances justifying the control order being concurrent with another control order.

Items [1] and [3] make consequential amendments.

No. 5 Page 6, schedule 2, Explanatory note. Insert after line 38:

Item [4] inserts a transitional provision consequential on the insertion of proposed section 33AA into the Act.

No. 6 Page 16, schedule 5. Insert after line 3:
[1] Section 3 Interpretation

Insert in alphabetical order in section 3 (1):

detention centre has the same meaning as it has in the Children (Detention Centres) Act 1987.

juvenile justice officer means a juvenile justice officer employed in the Department of Juvenile Justice.

person subject to control has the same meaning as it has in the Children (Detention Centres) Act 1987.

[2] Section 55 Sentences for offences generally

Insert after section 55 (5) (a):

(a1) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, against a juvenile justice officer committed by the offender while a person subject to control, or

[3] Section 56 Sentences for offences involving assault by convicted inmates

Omit section 56 (1). Insert instead:

(1) This section applies to:

(a) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, committed by the offender while a convicted inmate of a correctional centre, or

(b) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, against a juvenile justice officer committed by the offender while a person subject to control.

[4] Section 56 (3A)

Insert after section 56 (3):

(3A) Such a direction may not be given in relation to:

(a) an offence involving an assault, or other offence against the person, against a correctional officer committed by the offender while a convicted inmate of a correctional centre, or

(b) an offence involving an assault, or other offence against the person, against a juvenile justice officer committed by the offender while a person subject to control,

unless the court is of the opinion that there are special circumstances justifying such a direction.

[5] Section 56 (6)

Insert after section 56 (5):

(6) In this section, a reference to another sentence of imprisonment, other sentence of imprisonment or further sentence of imprisonment is taken to include a reference to a period for which a person is required to be detained in a detention centre under an order referred to in section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987.

No. 7 Page 16, schedule 5 [1], lines 6-13. Omit all words on those lines. Insert instead:

Omit section 58 (3). Insert instead:

(3) This section does not apply if:

(a) the new sentence relates to an offence committed by an offender involving an assault, or other offence against the person, against a correctional officer while a convicted inmate of a correctional centre, or against a juvenile justice officer while a person subject to control, and

(b) either:

(i) the old sentence was imposed by a court other than a Local Court or the Children’s Court, or

(ii) the old sentence was imposed by a Local Court or the Children’s Court and the date on which the new sentence would end is not more than 3 years and 6 months after the date on which the old sentence began.

(4) In this section, a reference to an old sentence of imprisonment or another sentence of imprisonment is taken to include a reference to a period for which a person is required to be detained in a detention centre under an order referred to in section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987.

No. 8 Pages 16 and 17, schedule 5 [5], line 29 on page 16 to line 5 on page 17. Omit all words on those lines. Insert instead:

Application of amendments to sections 55 and 56

(1) An amendment to section 55 or 56 made by the Crimes Legislation Amendment Act 2002 applies only to a new sentence of imprisonment imposed in relation to an offence committed after the commencement of the amendment, and so applies whether or not the old sentence was imposed before the commencement of the amendment.

(2) In subclause (1), new sentence of imprisonment means a sentence of imprisonment imposed on an offender who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or in respect of whom another sentence of imprisonment has been imposed in the same proceedings, and old sentence of imprisonment means that other sentence of imprisonment (that term having the extended meaning given by section 56 (6), as inserted by the Crimes Legislation Amendment Act 2002).

Application of amendment to section 58

The amendment to section 58 made by the Crimes Legislation Amendment Act 2002 applies only to a new sentence (within the meaning of that section) imposed in relation to an offence committed after the commencement of the amendment, and so applies whether or not the old sentence (within the meaning of that section, as amended by the Crimes Legislation Amendment Act 2002) was imposed before the commencement of the amendment.

No. 9 Page 17, schedule 5, Explanatory note. Insert after line 7:

Item [4] amends section 56 of the Crimes (Sentencing Procedure) Act 1999 to deal with the imposition of a sentence of imprisonment for an offence involving an assault, or other offence against the person, against a correctional officer committed while the offender was a convicted inmate of a correctional centre, or against a juvenile justice officer committed while the offender was detained in a detention centre under the Children (Criminal Proceedings) Act 1987 after being found guilty of an offence.
The amendment requires the sentence of imprisonment to be served consecutively on any other sentence of imprisonment to which the offender is subject, or on any control order detaining the offender in a detention centre under the Children (Criminal Proceedings) Act 1987, unless the sentencing court is of the opinion that there are special circumstances justifying the sentence of imprisonment being served concurrently, or partly consecutively and partly concurrently, with another sentence of imprisonment or control order.
Items [1]-[3] and [5] make consequential amendments.

No. 10 Page 17, schedule 5, Explanatory note, lines 17-22. Omit all words on those lines. Insert instead:

Item [1] amends section 58 to allow a Local Court to impose a sentence of imprisonment that is consecutive or partly consecutive on another sentence of imprisonment imposed by a Local Court (or on a control order made by the Children’s Court) that will result in a total accumulated sentence of up to 3 years and 6 months, where the new sentence relates to an offence involving an assault, or other offence against the person, against a correctional officer committed by the offender while a convicted inmate of a correctional centre, or against a juvenile justice officer committed while the offender was detained in a detention centre after being found guilty of an offence.
The amendment also makes it clear that the length of a period of detention in a detention centre under a control order made by the Children’s Court is taken into account in calculating the limit applying to a Local Court on accumulation of sentences of imprisonment.

No. 11 Page 17, schedule 5, Explanatory note, line 23. Omit "a consequential transitional provision". Insert instead "consequential transitional provisions".

Amendments Nos 1 to 5 clarify the intention of the Government that when sentencing a juvenile who is the subject of a control order or a sentence of imprisonment, and who assaults a juvenile justice officer in a juvenile detention centre, the Children's Court must accumulate the control order, unless there are special circumstances and subject to other existing limitations. The Government believes it is appropriate to apply some additional guidance to judicial officers about the need to ensure that serious assaults upon juvenile justice officers do not go unpunished.

Amendments Nos 6 to 11 provide that when sentencing an adult who is subject to a sentence of imprisonment and who assaults either a correctional officer or a juvenile justice officer in a correctional centre or juvenile detention centre, the court must accumulate the sentence of imprisonment, unless there are special circumstances. The amendments do not change the law otherwise—that is, there is no accumulation limitation where the offender is serving a sentence ordered by the District Court or Supreme Court. These amendments represent an appropriate strengthening of the presumption in favour of consecutive sentences for proven assaults upon correctional officers. I commend the amendments to the Committee.

The Hon. JAMES SAMIOS [5.10 p.m.]: The Opposition does not oppose the Government's amendments.

Amendments agreed to.

Schedule 2 as amended agreed to.

Schedules 3 and 4 agreed to.

Schedule 5 as amended agreed to.

Schedules 6 to 10 agreed to.

Title agreed to.

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

The Hon. IAN MACDONALD (Parliamentary Secretary) [5.12 p.m.]: I move:

That this bill be now read a second time.

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

Leave granted.

The purpose of the bill before the House is to amend the Road Transport (Vehicle Registration) Act 1997 and the Motor Dealers Act 1974 to introduce measures to combat the practice of registering New South Wales based commercial vehicles in other States, to avoid the payment of New South Wales registration charges and New South Wales compulsory third party insurance premiums. Registration authorities in each Australian jurisdiction have the power to require a vehicle to be registered in their State/Territory if the vehicle is principally based or garaged in their jurisdiction. Currently, the Roads and Traffic Authority [RTA] relies on the person applying for an exemption from New South Wales vehicle registration to supply a valid interstate address indicating an interstate base of operation or garage.

The RTA and NSW Police work with interstate authorities to determine the validity of suspicious addresses, but this is time-consuming, costly and ineffective where the provision of a false address has nevertheless secured interstate registration. Insurers, motor traders, some car rental companies and the community have raised concerns with the RTA and Government about increased fraudulent activity to avoid registration and higher third party accident insurance premiums in New South Wales, such as the fixing of interstate plates on new business vehicles, and the falsification of interstate business addresses to comply with the exemption from registration for visiting vehicles.

It has become an increasingly common practice for a number of car rental, fleet management, trucking and coach companies to operate vehicle fleets in New South Wales although the vehicles are registered in Victoria, Queensland or Western Australia on the basis that the vehicle fleet is primarily based in those jurisdictions. In fact, Avis Rent a Car and Hertz Australia Pty Ltd have specifically made representations to the Government supporting changes to legislation to create a level commercial playing field for car rental companies. Mr George Proos, Managing Director of Avis, wrote to the Minister for Roads in the following terms:

"The continued acceptance of this practice to register all rental cars out of the State of New South Wales by the Government results in these companies being given an unfair competitive advantage when doing business in this State."

This legislation ensures that cars primarily used by companies in this State are registered in this State, pay compulsory third party insurance in this State and do not result in the loss of stamp duty on sales and leases in this State. On the basis of those vehicles that can be identified, fraudulent activity of this kind is estimated to cost the Government at least $800,000 per year in lost revenue from unpaid RTA registration charges. However, the total number of interstate registered business vehicles based in New South Wales is unknown and likely to be costing a significantly higher amount in forgone revenue. Interstate registered vehicles based in New South Wales also cost the State and private sector lost revenue in third party insurance premiums, stamp duty on transactions and the sale/lease of motor vehicles. Let me outline the details of the legislation.

Firstly, this legislation is designed to target corporations—and not individuals—that circumvent New South Wales registration requirements in three ways. The first is by creating an offence for a licensed motor dealer to affix interstate plates to a vehicle in New South Wales without the approval of the RTA. This seeks to prevent organisations that import cars through Sydney's port, have them registered with interstate plates by a New South Wales motor dealer and then operate the fleet primarily here in New South Wales. The sanctions proposed are an $11,000 fine and power for the Department of Fair Trading to revoke a licence.

The second way in which it will target corporations is by creating an offence for a corporation to "cause, permit or allow an interstate registered vehicle owned by the corporation to be used on a road" in New South Wales unless the corporation can show: that the vehicle was less than 90 days old; that during the 90 days prior to the offence the vehicle had been outside New South Wales for a continuous period of at least 48 hours; or that, in the case of a car rental company, the vehicle was rented to the same person for the whole of the 90-day period immediately before the offence. The sanction proposed is an $11,000 fine per offence. Finally, the bill enables the RTA or police to direct the production of documents for the purposes of ascertaining whether a corporation has committed such an offence.

The rationale on which the Road Transport (Vehicle Registration) Act is based is that motor vehicles using New South Wales roads principally should be registered in New South Wales. Currently it is an offence under the Act to use a motor vehicle or a trailer on a road or road-related area without being registered in New South Wales. However, the Act recognises that the use of prescribed vehicles does not constitute such an offence. The regulation under the Act prescribes interstate registered vehicles temporarily visiting New South Wales. In a prosecution for using an interstate registered vehicle without being registered in New South Wales, to avoid conviction, the defendant has the burden of showing that the vehicle is temporarily in New South Wales. However, to satisfy that burden the defendant only has to present or point to evidence that suggests a reasonable possibility that the vehicle is a visiting vehicle. The easy availability of this defence has, in the absence of admissions by the defendant, deterred police prosecutions being launched.

This bill introduces a strategy to eliminate, or at least minimise, the unscrupulous evasion by certain dishonest operators of motor vehicles used for business purposes. For too long these operators have been using the New South Wales road network without contributing to road funding in this State. It should be remembered that the major portion of the total registration charge for light motor vehicles in New South Wales is motor vehicle tax, which, for light vehicles, is calculated according to the weight of the vehicle and pays for maintenance of the road network. Motor vehicle tax in New South Wales is allocated entirely to road funding, which funds the building and maintenance of road services and facilities, and in particular is also used to fund road safety initiatives. Let me provide some further detail on the four parts of the legislation.

First, the bill inserts new clause 22, creating a new offence of a licensed motor dealer causing or permitting the fixing of interstate registration plates to vehicles within New South Wales without the approval of the Roads and Traffic Authority. This provision is aimed at some motor dealers who fix interstate number plates to vehicles destined to be based in New South Wales to avoid the cost of New South Wales registration and third party insurance premiums. Of course, the fixing of interstate registration plates for proper purposes will be permitted. For example, in border areas the RTA will be able to authorise certain dealers to fix interstate plates—that makes good sense. This will permit dealers in border areas to fix interstate plates to new vehicles purchased by customers who live across the border. If the RTA has not approved the fixing of interstate plates, there will be a defence where a defendant satisfies the court that there was a reasonable explanation for fixing the plates in New South Wales, and it was not done with the intent to evade New South Wales registration requirements.

Second, new clause 22A creates a new offence of a corporation causing or permitting the use on a road or road-related area of an interstate registered vehicle without New South Wales registration. The defendant corporation will not be guilty of the offence if it establishes any one of a number of defences. The primary defence is that during the previous 90 days the interstate registered vehicle was outside New South Wales for a continuous period of 48 hours. The maximum fine for this offence will be 100 penalty units, or $11,000. This level of penalty is consistent with the level of penalty in relation to a corporation in the national road transport law. Essentially, it is proposed that the legislation will contain two classes of offence. For individuals the existing offence and penalty currently in the legislation will be retained, that is, 20 penalty units or $2,200, and the existing burden of proof will also be retained.

For corporations, a new offence will be created which increases the burden of proof, and a maximum penalty of 100 penalty units will apply. Effectively, if prosecuted, a defendant corporation will have to satisfy a court that a vehicle has been outside the State for two days in the past 90 days. This requirement is not seen as onerous for corporations, given that a vehicle used principally within New South Wales should be registered here. The actual geographic base of vehicles used for business purposes, including hire vehicles and their movements into and out of the State, are facts peculiarly within the knowledge of the business. It is considered that imposing the burden of proof on a defendant corporation will be the most effective measure to prevent, and expose, the improper use of interstate registration. The increase in the burden of proof should not involve any undue hardship on the defendant corporation, which is in the best position to provide the relevant information to a court.

Thirdly, the bill inserts new clause 22B, empowering the police and authorised RTA officers to demand the production of documents relating to the operation of interstate registered vehicles apparently used for business purposes in New South Wales. This power does not apply to vehicles apparently used for private or domestic purposes, because it is recognised that private individuals would be unlikely to have the appropriate evidence to document their vehicles' past movements, whereas business organisations would be expected to keep that information as part of their normal business practice.

Finally, this bill also proposes to amend the Motor Dealers Act 1974 to allow the suspension or cancellation of a motor dealers licence where a dealer is guilty of the offence of fixing or permitting the fixing of interstate registration plates to vehicles within New South Wales without the approval of the RTA. The arrangements proposed in this bill will not impact unduly on law-abiding business operators. In fact, I anticipate that this bill will be enthusiastically welcomed by honest business operators.

I commend the bill to the House.

The Hon. JENNIFER GARDINER [5.12 p.m.]: The primary purpose of the Road Transport (Vehicle Registration) Amendment Bill is to stop the rorting of vehicle registration that is taking place when a vehicle that is used primarily in New South Wales is registered interstate. The second reading speech refers to the $800,000 per year in lost revenue for the Roads and Traffic Authority [RTA] from unpaid registration charges, but that reference was qualified by the statement that it is almost impossible to determine the exact amount. The Opposition believes that the amount of lost revenue is actually much higher than that.

The bill makes it an offence for a licensed motor dealer to affix interstate plates to a vehicle in New South Wales without the approval of the RTA. That is to prevent New South Wales motor dealers who import cars through Sydney ports from registering the vehicles in another State, but then operating the fleet primarily in New South Wales. The bill provides for a fine of $11,000 for such behaviour and empowers the Department of Fair Trading to revoke the licence of a person or persons found guilty of such an offence.

The bill also makes it an offence for a corporation to cause, permit or allow an interstate registered vehicle owned by a corporation to be used on New South Wales roads unless the corporation can show that the vehicle is less than 90 days old, or that during the 90 days prior to the offence the vehicle had been outside New South Wales for a continuous period of at least 48 hours, or that, in the case of a rental car company, the vehicle was rented to the same person for the whole of the 90-day period immediately before the offence. There are fines and other sanctions in the bill covering those offences.

The bill also enables the RTA or NSW Police to direct the production of documents for the purposes of ascertaining whether a corporation has committed an offence, and provides for certain prima facie offences for people who may be caught by the provisions of the bill. A certain amount of guilt until innocence is proved is attached to such offences, and the person under investigation will have to produce a number of documents to prove he or she was using a vehicle in accordance with the prevailing laws. At present in New South Wales, and indeed in the other States, there is a requirement that vehicles be registered in the State where they are effectively housed or garaged once a certain period has expired.

The Opposition has a number of concerns about this bill. We believe that the Government must crack down on the problem of interstate registrations, but there is the question of why this practice is occurring in the first place. Why do people want to register their vehicles in another State? The reason of course is that people seek to register vehicles outside New South Wales to avoid the higher registration premiums that are applicable in New South Wales, which has higher registration fees than most other States, including Queensland, Western Australia and South Australia. A person registering a new car must also pay the licence plates fee introduced by the Government to prop up the failing roads budget presided over by the Minister who has virtually bankrupted the RTA. A comparison of registration fees shows that the fee in Queensland is $36.90, in Western Australia it is $15.75, and in South Australia—we see many vehicles, particularly hire vehicles, in New South Wales that have been registered in South Australia—renewal of registration is only $6 and a new registration is $21. So New South Wales has higher registration charges than any other State, and that is why people have their vehicles registered in States other than New South Wales.

As we all know, New South Wales is the highest taxing State in Australia, and that, of course, is one reason why people seek to reduce their costs and register their vehicles elsewhere. The latest figures of the Australian Bureau of Statistics and Research relating to State and local taxation for 2001 throughout Australia show that every person in New South Wales pays about $2,373 in State and local taxes compared with $2,083 in Victoria and $1,517 in Queensland. This bill is just another example of higher taxes being imposed by the Carr Labor Government, which is driving people to register their vehicles in other States.

Another factor contributing to the cost burden on New South Wales road users is stamp duty that is payable on vehicles—another reason why people register their vehicles interstate. The stamp duty on motor vehicles in New South Wales is very high. Other States have practically no stamp duty on motor vehicles. Not surprisingly, car hire firms and other companies with a higher volume of vehicles or vehicle fleets seek to minimise costs by registering their vehicles in States in which more reasonable business tax rates apply. The extremely high tax rates in New South Wales are pushing businesses into other States. We need to look at not only vehicle registration fees but also stamp duty and other ancillary fees related to motor vehicle registration. Clearly the Carr Government's intention is to catch people who seek to minimise their motor vehicle outlays.

As I have said, the Minister believes that the Roads and Traffic Authority loses revenue of about $800, 000, but we think the figure is a lot higher given the ancillary charges and taxes the Government will reap when New South Wales vehicles registered interstate are registered in New South Wales. One can only hope that the additional revenue will go back into the Roads budget. The pathetic Minister for Roads, Mr Scully, has been unable to obtain sufficient funds to ensure that New South Wales has a proper, safe road network. By his own admission he has declared that the State's roads have reached "a critical point". However, I suggest they are beyond that.

After seven, nearly eight, long years of neglect by the Carr Labor Government much of the New South Wales road network is in a disgraceful state of repair, much as they were at the end of the Wran era. In 1988 the condition of our roads was a critical factor in the defeat of the Wran-Unsworth Government and the election of the Greiner-Murray Government. At best, roads crisscrossing New South Wales were built in the 1970s and at worst well before that, which makes them more than 30 years old and well past their use-by date. New South Wales has a greedy Treasurer, who continues to overspend his budget, then props it up by imposing more and more taxes. Figures show that New South Wales is by far the highest taxing State with a per capita tax rate of $2,373.

The Hon. Amanda Fazio: Point of order: My point of order relates to relevance. The bill deals with the registration of motor vehicles. The honourable member is attempting to steer clear of referring to vehicles that are registered interstate, such as hire car businesses, to avoid paying registration in New South Wales. The Hon. Jennifer Gardiner might be interested in giving somebody a history lesson on road funding in New South Wales over the last couple of decades, but it is not relevant to the bill.

The Hon. Tony Kelly: To the point of order: The real reason they are registered in Victoria is that registrations do not have to be checked every year, only every alternate year. The bill has nothing to do with Victoria.

The Hon. John Jobling: To the point of order: As you have often said, debate is generally allowed to be fair and wide ranging. My colleague is dealing with examples of road transport and road transport registration within this State by way of comparison. I contend that the honourable member is in order.

The Hon. Richard Jones: To the point of order: The legislation quite clearly says, using the Government's briefing, that we will save something like $800,000 a year. How that $800,000 is spent is relevant. The honourable member could talk about any matter dealing with road funding and it would be relevant.

The PRESIDENT: Order! As I have ruled previously, it is a convention in this House that, when contributing to debate on a bill, members may speak fairly generally about aspects of the bill.

The Hon. JENNIFER GARDINER: Thank you. I was on the straight and narrow. I appreciate your ruling. However, I can understand the incredible sensitivity of Labor members about the State tax burden, particularly as it affects drivers in New South Wales. They do not like the fact that road funding became a big issue towards the end of the Wran and Unsworth governments. It was a major campaign item in the 1988 election and it contributed to the defeat of the Labor Government and the election of a Coalition Government. Now that members on the Government side of the House have indicated their sensitivity about the pathetic state of Mr Scully's roads in New South Wales I will recommend to our campaign committee that we rev it.

The Hon. Richard Jones: What about the Silver City Highway? It hasn't even been sealed.

The Hon. JENNIFER GARDINER: The Hon. Richard Jones has raised an incredibly good point. I will put that even higher up on our list.

Ms Lee Rhiannon: Be careful, Richard. They will remember you for roads rather than other things.

The Hon. JENNIFER GARDINER: He has always been multidimensional. He has very broad-ranging interests. I thank members of the Labor Party for their interjections. They have certainly helped to clarify their election sensitivities. The poor arrangement in New South Wales is necessary for the Treasurer to collect even more money. Standard and Poor's report on its review of the New South Wales triple-A credit rating stated:

The strong property market has delivered the Government enough, though unexpected, extra stamp duty revenue to offset its difficulty of keeping costs within budget.

As all honourable members know, that difficulty has run to $5.5 billion between 1996 and 2002. The 2001-02 financial year was Labor's worst yet. Its expenditure was over budget by more than $1.6 billion. Additional stamp duty paid on vehicles that will be required to be registered in this State will enable the Hon. Michael Egan, in the unfortunate event that he continues as Treasurer of this State, to continue to prop up the budget, although he has already run up a deficit of more than $5.5 billion. Registration fees will go into the Roads and Traffic Authority budget.

One can only hope that that money will be properly applied to funding better roads in this State. Certainly, that would be the position of the Liberal and National parties coming into government. In the other place the honourable member for Wagga Wagga referred to military personnel transferring from one military base to another. Interstate personnel who are transferred to bases in New South Wales, such as Wagga Wagga, Singleton and Williamtown, are reluctant, because of their postings, to change the registrations of their motor vehicles from their home States.

The Hon. John Jobling: It is a real problem.

The Hon. JENNIFER GARDINER: As the Hon. John Jobling said, it is a problem. The bill does not deal with special dispensation for such personnel, although I understand from the Hon. Duncan Gay that special dispensation applies to the registration of animals that belong to service personnel. The registration of such animals brought from interstate to a New South Wales base is considered sufficient for the purposes of the Companion Animals Act or any other ancillary Act that applies to such animals. There is an inconsistency. Although members of the Opposition do not oppose the bill, we are concerned that it is another straight out grab for money. The Minister for Transport, and Minister for Roads is cash strapped. He has blown his budget.

An analysis by the Opposition of the RTA Pacific Highway project costs obtained from the RTA annual reports over the past five years revealed startling results. The estimated cost of every single one of the Pacific Highway projects listed in the 2001 RTA annual report is significantly higher than estimated. Mr Scully has overseen cost blow-outs on Pacific Highway projects totalling in excess of $660 million. As we all know, he has shown extremely poor management of the M5 East project. In November 1996 the Minister for Roads, Mr Scully, informed Parliament that the M5 East was a $520 million project. However, by the time it was opened in December 2001 the cost of the project had blown out to almost $800 million. The Government has presided over an M5 East project that has ended up 54 per cent over original budget estimates, which, in dollar terms, is a massive $280 million.

The Hon. Richard Jones: It is still not filtered.

The Hon. JENNIFER GARDINER: As the Hon. Richard Jones said, it is still causing grave concern to many citizens of this State, some of whom visited the Parliament last evening. One can only commend them for their fortitude and tenacity. I look forward to seeing them in the next few months on the election campaign trail. Blow-outs on such projects total almost $1 billion. It is little wonder that the Minister is desperate to get his hands on every cent he can. We understand that the existing laws of New South Wales require people with motor vehicles registered in another State to register them in this State. The bill is an extension of that practice. With those reservations, I support the bill.

The Hon. RICHARD JONES [5.28 p.m.]: I support the bill. When I was hiring cars up north while my car was not functioning properly, I noticed that more often than not they were registered interstate. I thought that was rather curious. Clearly, at least the smaller hire car companies are rorting the system. But that is fair enough, because they are trying to save money—and that is what business is about. They are trying to maximise profits and returns, and to reduce expenditure. Nevertheless, they are engaged in a rort. I am pleased that legislation has been introduced to put a stop to such activity. Large companies like Avis and Hertz have tried to stop the rorting because the practice has unfair consequences for them. The Silver City Highway from Broken Hill to Tibooburra is only half sealed. The highway goes from sealed to unsealed; it does not make sense.

In times of hardship and drought such as this, we should facilitate vehicles moving north and south, particularly from Victoria and South Australia, because many tourists travel up to Tibooburra and Broken Hill. We should ensure that the tourist trade develops quickly, because it will provide a supplementary income for many land-holders and farmers in New South Wales who are doing it very hard. Clearly, tourism is the most sustainable long-term business proposition for these people. I hope that happens and that the Government progresses the sealing of that highway and other major tourist routes in the west as soon as possible to increase the opportunities for interstate and overseas tourists to enjoy our natural wonders, particularly our kangaroos, emus and birds.

A number of national parks have been established in the area that will attract tourists from throughout the world. I hope that the Government will provide the necessary infrastructure to facilitate the development of tourism in those regions. I am sure it will look at that issue shortly. I would not normally raise it in this debate, but I cannot conclude my contribution without mentioning the M5 East. It is shocking that the Roads and Traffic Authority is oblivious of the fact that 40-odd tunnels in Japan are filtered. The RTA officers who appeared before the committee knew of only one filtered tunnel in that country. Committee members found that extraordinary.

The Hon. John Jobling: They found a few in the bush.

The Hon. RICHARD JONES: They had no idea and had not done any research. They knew about two or three filtered tunnels in Norway, but they did not know that two-thirds of the long tunnels in Japan were filtered.

The Hon. John Jobling: We have pushed them and they have now found 20.

The Hon. RICHARD JONES: I asked the head of the RTA, Paul Forward, whether the authority had an obligation to provide safe roads. Roads in Sydney are not safe if only because they are adding to the huge pollution burden. More people die from pollution than road accidents as a result of RTA inactivity. It does not require all diesel-powered vehicles more than three years old to be inspected every year to ensure that their emissions are clean. If they are not clean, they should not be reregistered. Evidence was presented to the committee that air pollution in Sydney could be reduced by 80 per cent if such a scheme were introduced. Particulate matter emitted by diesel-powered vehicles is more dangerous than that emitted by bushfires and wood stoves. The RTA is not doing its job; it is not looking after the people of Sydney. It is allowing people to die because of its neglect. It should have filtered the emissions from the tunnel from day one. It refuses to acknowledge what is happening in Japan, Korea and elsewhere.

In reply to the recommendations in the dissenting report, RTA officers said they would implement only voluntary testing of diesel-powered vehicles. The RTA should do its job and ensure that diesel-powered vehicles are tested every year. Removing faulty vehicles from the road could save hundreds of lives a year. The RTA has spent a huge amount trying to prevent accidents by reducing speeding, but if it spent a fraction of that money testing diesel-powered vehicles every year it could reduce emissions by 80 per cent and save hundreds of lives. That would be money well spent. The RTA should take its head out of the sand and start looking after the health of the people of Sydney. It should also ensure that the roads in the far west are sealed. It is not doing its job and it should be scrutinised after the next election.

Reverend the Hon. FRED NILE [5.33 p.m.]: The Christian Democrats support the Road Transport (Vehicle Registration) Amendment Bill 2002, which will prevent corporations circumventing New South Wales registration and green slip requirements by registering their fleet vehicles interstate. I was following a major hire company's vehicles this week and I noticed that some were registered in Victoria and some in Queensland. Obviously those corporations will be picked up by this legislation. It will target them by making it an offence for a licensed motor vehicle owner to affix interstate plates to a vehicle in New South Wales without the approval of the Roads and Traffic Authority [RTA]. That will prevent organisations importing cars through the port of Sydney and registering them interstate through a New South Wales motor dealer and then using them primarily in this State. The legislation imposes an $11,000 fine and the Department of Fair Trading will have the power to revoke a licence.

The legislation also makes it an offence for a corporation to cause, permit or allow an interstate-registered vehicle owned by a corporation to be used on a road in New South Wales unless the corporation can show that the vehicle was less than 90 days old, that during the 90-day period prior to the offence the vehicle had been outside New South Wales for a continuous period of at least 48 hours, or, in the case of a car rental company, the vehicle was rented to the same person for the entire 90-day period immediately prior to the offence. The legislation imposes an $11,000 fine per offence. I have been advised that individuals with privately owned vehicles are not subject to these provisions. One honourable member referred to soldiers being affected by the bill.

The Hon. John Jobling: All service people are moved around.

Reverend the Hon. FRED NILE: This legislation does not affect individuals.

The Hon. John Jobling: But it affects individual soldiers.

Reverend the Hon. FRED NILE: It cannot affect them if they are not corporations.

The Hon. John Jobling: It will.

Reverend the Hon. FRED NILE: The Government might provide advice on that. I have been advised that private individuals are not affected by this legislation.

Ms LEE RHIANNON [5.36 p.m.]: The Greens support this bill. We believe it is necessary to ensure that owners of licensed motor vehicles do not affix interstate number plates to those vehicles. These measures are necessary because clearly a scam is being perpetrated. Some commercial operators are hell-bent on avoiding paying New South Wales registration charges and compulsory third-party insurance premiums. That is clearly wrong. Like other members, I became aware of this activity when I hired a car and realised that I had never seen a rental car with a New South Wales number plate, so I started asking questions. This bill is timely. Law-abiding companies clearly will have no objections to this bill. In fact, they have a lot to look forward to because what they often request will come to fruition; that is, they will have a level playing field for their commercial endeavours.

The Hon. IAN MACDONALD (Parliamentary Secretary) [5.38 p.m.], in reply: I thank honourable members for their comments on this bill and commend it to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages.

The Hon. IAN MACDONALD (Parliamentary Secretary) [5.39 p.m.]: I move:

That this bill be now read a second time.

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

Leave granted.

Just over three years ago this Parliament enacted the Building and Construction Industry Security of Payment Act 1999. The Act was the first of its kind in Australia. It has set a benchmark for dealing with payment problems in the building and construction industry and similar legislation has already been adopted in Victoria. I understand other States are also considering adopting a similar approach. The main purpose of the Act is to ensure that any person who carries out construction work, or provides related goods or services, is able to promptly recover progress payments. The Government wanted to stamp out the practice of developers and contractors delaying payment to subcontractors and suppliers by ignoring progress claims, raising spurious reasons for not paying or simply delaying payment.

Reports received by my department indicate that the Act is proving very successful in reforming these practices. But changes can be made to make the Act even more effective. The purpose of this bill is to enact those changes. The changes were foreshadowed in a detailed discussion paper I released on 5 September 2002 to coincide with the formal review of the Act required at this time. The responses to that discussion paper were overwhelmingly supportive of the proposed changes. Proposed changes encompass new features to the Act, modifications to existing provisions, and drafting changes to clarify the intent of the Act.

The Act was designed to ensure prompt payment and, for that purpose, the Act set up a unique form of adjudication of disputes over the amount due for payment. Parliament intended that a progress payment, on account, should be made promptly and that any disputes over the amount finally due should be decided separately. The final determination could be by a court or by an agreed alternative dispute resolution procedure. But meanwhile the claimant's entitlement, if in dispute, would be decided on an interim basis by an adjudicator, and that interim entitlement would be paid. However, some claimants have had difficulty enforcing payment of the debt due under the Act. To enforce payment, the claimant has had to obtain a judgment of a court. At present this involves taking out a summons in the appropriate court. The respondent has 28 days to lodge a defence or cross-claim. Then there is a hearing before a magistrate or judge, who has to decide whether to enter summary judgment for the statutory debt or set the matter down for a full hearing.

By raising in court defences such as that the work does not have the value claimed or that the claimant has breached the contract by doing defective work, some respondents have been able to delay making a progress payment for a long time. Those respondents have forced claimants to incur considerable legal costs. They have effectively defeated the intention of the Act. To overcome the problem, the bill clarifies that in court proceedings by a claimant to enforce payment of the debt due under the Act, a respondent will not be able to bring any cross-claim against the claimant and will not be able to raise any defence in relation to matters arising under the construction contract. A respondent who wants to raise these matters must do so in a payment schedule in response to a payment claim under the Act, or in separate proceedings.

Cash flow is the lifeblood of the construction industry. Final determination of disputes is often very time consuming and costly. We are determined that, pending final determination of all disputes, contractors and subcontractors should be able to obtain a prompt interim payment on account, as always intended under the Act. To reinforce this determination, the bill provides that after an adjudication the respondent must pay the claimant the adjudicated amount. The existing legislation gives the respondent the options of paying the adjudicated amount or providing security for payment of the amount. Experience has shown that where respondents have taken the security option, they have then not taken steps to expedite the final resolution of the dispute.

The result is that cash flow to the claimant does not occur, and the claimant has achieved little through the adjudication process. Removing the security option will overcome this situation and ensure that a reasonable interim payment, assessed by an independent party, is made within a short time frame. In addition, the bill includes another important measure for ensuring a claimant can more easily enforce prompt payment of the adjudicated amount. The bill provides that after an adjudication a claimant can ask the Authorised Nominating Authority, who nominated the adjudicator, for a certificate as to the adjudicated amount. The claimant can file that certificate in an appropriate court and automatically obtain judgment for the adjudicated amount.

Under the new procedure there will no longer be need for a summons and a hearing before a magistrate or judge. Claimants will be able to obtain judgment for the adjudicated amount without the need to engage a solicitor. A claimant will be able to obtain judgment on the day that the claimant files the adjudication certificate with the court. These measures not only will expedite recovery of progress payments but will considerably reduce the cost of doing so. If a respondent applies to the court to have the judgment set aside after an adjudication, the respondent will have to pay into court as security the unpaid portion of the adjudicated amount. This will defeat the practice of using legal proceedings to simply delay payment.

There will be some instances where a court may set aside the judgment. The respondent may be able to demonstrate to the court that the requirements of the Act have not been complied with; for example, that there has not been a valid adjudication. But in proceedings to set aside the judgment the respondent will not be entitled to bring a cross-claim or to raise any defence in relation to matters arising under the construction contract or to challenge the determination by the adjudicator. Adjudication is an expedited procedure. The adjudicator has only 10 business days in which to make a decision. There will be instances when the progress payment determined by the adjudicator will be more or less than the entitlement finally determined to be due under the contract. However, it is better that progress payments be made promptly on an interim basis, assessed by an independent party, rather than they be delayed indefinitely until all issues are finally determined.

Presently, when a respondent fails to pay the claimant by the due date for payment under the contract, the claimant's only recourse to enforce payment is to commence proceedings in a court. The bill will give the claimant another option. The claimant will be able to opt to have an adjudicator determine the amount of the progress payment that is due. This is an "optional adjudication". The claimant will still be able to proceed to adjudication earlier if the respondent provides a payment schedule and the scheduled amount is less than the amount claimed. The benefit to the claimant of proceeding with an optional adjudication rather than commencing proceedings in a court is that the claimant will then be able to use the adjudication certificate to obtain judgment expeditiously and without a court hearing. The claimant will be able to initiate an optional adjudication when the respondent fails to provide a payment schedule within time and fails to pay the amount claimed, or the respondent provides a payment schedule but fails to pay the whole of the scheduled amount.

The changes are not only designed to prevent abuses of the intent of the legislation by respondents. We recognise the potential for claimants to abuse also the intent of the legislation. Consequently, the bill restricts claimants to one payment claim under the Act in respect of each reference date. Reference dates will be either dates specified in the construction contract for making progress claims or, if not stated, the last day of each month of the year. There will also be a limit upon how long after construction work is completed a claimant can continue to make payment claims under the Act. The period will be 12 months after the last work was carried out or the goods or services were last provided, or a later date if provided for under the contract.

If the scheduled amount is less than the claimed amount, the Act presently allows the claimant five business days in which to initiate an adjudication. This period will be extended to 10 business days. This reflects the fact that a claimant frequently is unaware there is a payment dispute until the payment schedule is received and the proper preparation of an adjudication application can take more than five business days. Another time which will be extended is the time for the respondent to make payment after an adjudication. Presently, it is two business days. This will be extended to five business days to provide a more reasonable time to organise payment and to ensure work is not suspended prematurely.

A significant new feature is the provision in the bill that interest must be paid on the unpaid portion of a progress payment. Interest will be at the higher of the rates of interest provided for in the construction contract or the rate applicable to Supreme Court judgments. This will stamp out the practice of including a very low rate of interest in a construction contract. A low rate of interest is an incentive to delay payment. We want to remove any such incentive. To further enhance security for payment, the bill provides that, if a progress payment becomes due and payable, the claimant is entitled to a lien. The lien is for the unpaid amount and is over any unfixed plant or materials supplied by the claimant to the respondent for use in connection with the carrying out of the construction work. The lien will not override a pre-existing entitlement of a third party.

Under the bill, authorised nominating authorities are given an enhanced role. Henceforth, all adjudication applications must be made to an authorised nominating authority chosen by the claimant. A respondent will no longer be able to dictate in the construction contract that a particular authorised nominating authority must be used. Authorities will be entitled to charge fees for dealing with adjudication applications and related matters. The Minister will be able to limit the number of authorised nominating authorities and to set the upper limit of fees which may be charged by an authorised nominating authority. The bill provides that the adjudicator's determination must include the reasons for the determination unless both the claimant and respondent request otherwise.

The bill also puts a stop to "adjudicator shopping". This is the practice of a dissatisfied claimant making repeated adjudication applications until the claimant gets the adjudication decision that the claimant wants. Henceforth, if one adjudicator has decided that work, or related goods or services, have a certain value, in a subsequent adjudication the adjudicator or any other adjudicator will have to give the work, goods or services that same value. An exception is where the claimant or respondent satisfies the adjudicator that the value of the work, goods or services has changed since the previous adjudication. If the adjudicator's determination includes a clerical mistake or minor error or miscalculation, the adjudicator may correct the determination.

The Act has provision to enable an unpaid claimant to suspend work but there is no reference to when the claimant must recommence work. It is proposed to allow the claimant up to three business days to resume work after the claimant has been paid all moneys due under the Act. The bill further provides that if, as a consequence of the suspension, the respondent removes from the construction contract any part of the work or the supply of goods or services, the respondent is liable to pay the claimant's loss or expense arising from such removal. That loss or expense can be included in a progress claim.

Under the present Act the costs of the adjudicator are shared equally unless the adjudicator finds the adjudication application or the adjudication response was wholly unfounded. Experience has shown that there are many instances where the adjudication application or response was not wholly unfounded but was, nevertheless, so unmeritorious or ill-prepared that the responsible party should be made to pay more than half the costs. Under the bill the adjudicator will be empowered to determine how costs should be apportioned. This includes fees paid to an authorised nominating authority, for example, on lodgement of an adjudication application or for an adjudication certificate, that are provided for in the bill.

As previously mentioned, authorised nominating authorities will be empowered to issue adjudication certificates which can be used to obtain judgment. Such certificates can also include the amount of interest and adjudication costs payable by the respondent to the claimant. In the light of the enhanced role of authorised nominating authorities, the bill provides an authority with protection for anything done, in good faith, in the reasonable belief that it was done in exercising the authority's functions under the Act. Notices served under the Act will also be able to be served in a manner provided for under the construction contract.

To further enhance the remedies available to a claimant, the bill incorporates an amendment to the Contractors Debts Act 1997 to provide that the Contractors Debts Act covers all debts arising under the Building and Construction Industry Security of Payment Act. The Contractors Debts Act establishes a debt recovery procedure that allows a claimant to whom money is owed to seek payment of that money from a principal who engaged the defaulting respondent. This amendment will ensure all claimants under the Building and Construction Industry Security of Payment Act will be able to avail themselves of this procedure.

Minor changes have been made to remove possible ambiguities, for example, to ensure that progress payments include milestone payments, that progress claims under the Act can be made under construction contracts that have no provision for progress payments, and that progress claims can include the final amount claimed and retention moneys. The voiding of contract provisions that seek to contract out of the Act is extended to include any contract provision that can be construed as an attempt to deter a claimant from taking action under the Act. The proposed amendments will not affect payment claims made before the commencement of the amending Act. Such claims will be dealt with as if the amending Act had not commenced.

The Hon. JAMES SAMIOS [5.40 p.m.]: I speak on behalf of the Opposition. The Building and Construction Industry Security of Payment Act 1999 entitles certain persons who carry out construction work or supply related goods and services under construction contracts to timely payment for the work they carry out and the goods and services they supply. The Act also provides a procedure for securing the payments to which persons are entitled under the Act. Since the commencement of the Building and Construction Industry Security of Payment Act on 26 March 2000, its operation has been monitored by the Department of Public Works and Services. That monitoring resulted in the release of a discussion paper by the Minister for Public Works and Services on 5 September 2002 and coincided with the formal review of the Act that was required at the time.

Responses to the discussions are reflected in the proposed amendments contained in the Building and Construction Industry Security of Payment Amendment Bill. The purpose of the bill is to amend the Building and Construction Industry Security of Payment Act 1999 first, to provide that progress payments to which persons are entitled under the Act include final payments and single or one-off payments; second, to provide for interest to be payable on unpaid progress payments; third, to provide claimants with the option of having their payment claims adjudicated under the Act rather than having to take court action to recover the amount owing; and, fourth, to provide that an adjudicator's determination of a payment claim may be set out in an adjudication certificate which may then be filed as a judgment for a debt in any court of competent jurisdiction.

The bill also amends the Contractors Debts Act 1997 to provide that a claimant who has filed an adjudication certificate may be issued with a debt certificate under section 7 of that Act in order to obtain payment of a debt under that Act from the defaulting contractor's principal. The bill makes other procedural and minor amendments to the 1999 Act. The Opposition has consulted extensively with developers and subcontractors on this matter, including Leighton Contractors Pty Ltd, the Master Builders Association of New South Wales, the Newcastle Master Builders Association, Multiplex Constructions (NSW), Bovis Lend Lease Pty Ltd, the Timber and Building Materials Association, the Air-conditioning and Mechanical Contractors Association of NSW, the National Electrical and Communications Association, the Civil Contractors Federation (NSW), the Master Painters Australia, Australian Business Ltd, the Housing Industry Association, the Property Council of Australia, the Office of the Minister for Public Works and Services and the Department of Public Works and Services.

Overall, dialogue with those bodies was extensive. Following that dialogue the Opposition is prepared to not oppose the bill, but points out concerns that have been expressed by developers and others. As a result of those concerns, the Opposition will move an amendment, which I understand will be agreed to by the Government, to reduce the review period from three years to one year. Essentially, the Opposition supports the general thrust of the bill, which is to provide more equitably for payment, and for the review to occur in one year instead of three years, as provided in the 1999 Act.

Reverend the Hon. FRED NILE [5.44 p.m.]: The Christian Democratic Party supports the Building and Construction Industry Security of Payment Amendment Bill. As honourable members would know, this bill modifies the Building and Construction Industry Security of Payment Act 1999, which had to be reviewed after three years. A detailed discussion paper was released on 5 September covering some of the proposed changes. Those changes are supported by various interest groups and stakeholders that are affected by the Act. Apparently some devices have been used by builders to avoid paying their subcontractors, even under the 1999 Act, and this bill will make it difficult, if not impossible, for them to avoid meeting those obligations in future.

In the past some builders have used court processes to delay paying money that they owed to their subcontractors. To overcome that problem, the bill clarifies that in court proceedings by a claimant to enforce payment of the debt due under the Act, a respondent will not be able to bring any cross-claim against the claimant and will not be able to raise any defence in relation to matters arising under the construction contract. To assist that process, the bill provides that after an adjudication the respondent must pay the claimant the adjudicated amount. Previously there was an option of paying the money or providing security.

In that circumstance, security became another device to avoid paying cash. Subcontractors need to be paid urgently, they need a cash flow, and, obviously, a security would not meet that need. Removing that security option will overcome this situation and ensure that a reasonable interim payment, assessed by an independent party, is made within a short time frame. The bill provides also that after adjudication a claimant can ask the authorised nominating authority, who nominated the adjudicator, for a certificate as to the adjudicated amount. The claimant can file that certificate in an appropriate court and automatically obtain judgment for the adjudicated amount. We fully support those practical amendments.

Ms LEE RHIANNON [5.47 p.m.]: The Greens support the Building and Construction Industry Security of Payment Amendment Bill. As we know, subcontractors and suppliers often have problems recovering payments, and that is simply unacceptable. Often subcontractors are forced out of business and pushed into an untenable financial situation because developers and contractors, for whatever reason, choose to hold up payments. This bill is a reminder that a free and unfettered marketplace does not work. Business operations in some areas need to be regulated, and it is clear that this is one of those areas. For those reasons the Greens are pleased to support the bill.

The Hon. RICHARD JONES [5.48 p.m.]: I support the Building and Construction Industry Security of Payment Amendment Bill. This is an important bill and there is no doubt that the building and construction industry needs protecting. A friend of mine who owned the company RUP Constructions Pty Ltd was sent into liquidation by a number of people who refused to pay their last payments on houses he was building for them in Sydney. John Arthur, a barrister, of 62 Shirley Street, Wollstonecraft, who refused to pay the last $200,000 or $300,000 owing on his house, said, "Take me to court then, mate. You know it will take a long while to get your money." My friend's company built very fine buildings using top-quality ecologically sound timber. He was in business for quite some time, until crooks such as John Arthur sent him broke. In Sydney there are many people who do not pay their bills on time. Hopefully this bill will ensure that those who are owed money will get their money on time. I congratulate the Government on introducing this bill.

The Hon. IAN MACDONALD (Parliamentary Secretary) [5.49 p.m.], in reply: I thank honourable members for their wholehearted support of the bill. I commend the bill to the House.

Motion agreed to.

Bill read a second time.

Clauses 1 to 4 agreed to.

Schedule 1

The Hon. JAMES SAMIOS [5.52 p.m.]: I move the Opposition amendment on sheet C-123:

Page 18, schedule 1. Insert after line 29:

[49] Section 38 Review of Act

Insert after section 38 (3):

(4) A further review of this Act (as amended by the Building and Construction Industry Security of Payment Amendment Act 2002) is to be undertaken by the Minister as soon as possible after the period of 12 months from the commencement of Schedule 1 [29] to that Act.

(5) A report on the outcome of the further review is to be tabled in each House of Parliament within 3 months after the end of that period of 12 months.

The amendment will provide for a review of the Act to be undertaken as soon as possible after the 12-month anniversary of the commencement of section 17, in lieu of the three-year period already provided for in the 1999 Act.

The Hon. IAN MACDONALD (Parliamentary Secretary) [5.52 p.m.]: The Government supports the amendment.

Amendment agreed to.

Schedule 1 as amended agreed to.

Schedule 2 agreed to.

Title agreed to.

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

Consideration resumed from 3 December.

Schedule 2

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [6.00 p.m.]: I moved my amendment when we last considered this bill in Committee on the basis that recommendation No. 1 of the Campbell committee, which called for the establishment of a home building compliance commission, was not in the bill. I asked Parliamentary Counsel to draft an amendment to the bill to establish such a commission but I was informed that it would be a very big job—it would take about two weeks—and would change the purpose of the bill, thereby possibly preventing its passage. That undertaking seemed too difficult.

The Hon. Dr Peter Wong then suggested that the Government could be obliged to implement the recommendation by amending the bill to provide for a review of the Act in 12 months. The Hon. John Ryan suggested a two-year time frame to obviate the excuse from the Government that it did not have sufficient time to conduct a review and to ensure its acceptance of recommendation No. 1. The Government was a little unsure of its position in this regard—and I think that is why consideration of the legislation was adjourned. The suggestion of the Hon. John Ryan is now enshrined in a Government amendment to my amendment. I trust that the Government will support my amendment, given my reasonable acceptance of its amendment, which seeks to change 12 months to two years.

The Hon. JOHN RYAN [6.00 p.m.]: The Opposition supports the spirit of the amendment of the Hon. Dr Arthur Chesterfield-Evans. It seeks essentially to implement the first recommendation of the Joint Select Committee on the Quality of Buildings, which committee members considered to be very important. All committee members—I hope that I do not insult anyone present—concluded that it was necessary to correct a culture of stagnation within the Department of Fair Trading, which was not apparent in other departments such as PlanningNSW. PlanningNSW appeared to be far more committed to the need for change and of advocating on behalf of consumers. We felt that in its submissions to the committee the Department of Fair Trading was completely defensive and appeared to be totally wedded to making no further changes. We were concerned that, no matter what changes we recommended, while the decision remained in the hands of the department there would never be progress.

The Government has obviously decided not to implement the committee's first recommendation—I know how government works and I understand why this Government has come to that conclusion. I recall a particularly telling moment during the committee hearings. We had heard evidence from officers of the Department of Fair Trading, who had answered in the negative to virtually every question we had asked about change. They were followed by witnesses from PlanningNSW. They were like a breath of fresh air so committed were they to change and to ensuring that processes worked properly. Their approach motivated all committee members, whether from the Government, the Opposition or the crossbench.

The amendment of the Hon. Dr Arthur Chesterfield-Evans—which we welcome—accepts the Government's approach but hangs over its head like the sword of Damocles the proviso that, if the Government does not implement the committee's recommendations in a fashion that delivers genuine, measurable improvements for consumers, an audit will highlight that issue and a future government may decide to do things differently. I understand that the Government intends to accept my suggestion. Instead of conducting the review in 12 months—that may be too soon as it will be argued that the reforms have not been bedded down and people have just learned their jobs; I can write the report now—it will occur in two years, when it will be as plain as a pikestaff whether the reforms have worked. If they have not worked, an overwhelming and compelling case will be made to take this responsibility from the Department of Fair Trading and to establish an independent building commission. There may be other good reasons for doing that, but we commend the amendment to the Committee. We understand that the Government intends to support it while moving amendments sympathetic to a suggestion that I made earlier in the debate.

The Hon. IAN MACDONALD (Parliamentary Secretary) [6.04 p.m.], by leave: I move Government amendments Nos 1 and 2 in globo:

No. 1 In the Australian Democrats amendment omit "12 months" from proposed subsection (5) to be inserted in section 145 of the Home Building Act 1989. Insert instead "2 years".

No. 2 In the Australian Democrats amendment omit "12-month" from proposed subsection (6) to be inserted in section 145 of the Home Building Act 1989. Insert instead "2-years".

We have had considerable discussions with the Hon. Dr Arthur Chesterfield-Evans. These amendments will allow adequate time for evaluation of the reforms in the bill. The two-year period is also consistent with the recommendation of the Joint Select Committee on the Quality of Buildings that there be a performance audit after two years. I commend the amendments to the Committee.

The Hon. Dr PETER WONG [6.04 p.m.]: I support the principle of the Government amendments. However, I share the views of many Opposition and crossbench members in regretting that the Government does not have the courage to adopt recommendation No 1 of the Joint Select Committee on the Quality of Buildings. I do not believe the Department of Fair Trading will embark on reform. I will believe it when I see it.

The Hon. HELEN SHAM-HO [6.05 p.m.]: I support the amendment of the Hon. Dr Arthur Chesterfield-Evans that seeks to establish a home building compliance commission. That is an important point. I am not so sure that a commission will be established as a result of the Government's amendments. The Government must return after next year's State election with an undertaking to implement recommendation No. 1 of the Joint Select Committee on the Quality of Buildings. I will hold the Government to that commitment.

Government amendments Nos 1 and 2 agreed to.

Australian Democrat amendment as amended agreed to.

The Hon. IAN MACDONALD (Parliamentary Secretary) [6.06 p.m.], by leave: I move Government amendments Nos 1, 2 and 8 in globo:

No. 1 Page 35, schedule 2. Omit proposed paragraph (a1) (to be inserted in section 114 (3) of the Home Building Act 1989 pursuant to Amendment No. 1 of Australian Democrats amendments (C-088) made in committee).

No. 2 Page 35, schedule 2. Omit proposed Part 7A (to be inserted in the Home Building Act 1989 pursuant to Amendment No. 2 of Australian Democrats amendments (C-088) made in committee). Insert instead:

Part 7A Home building advisory and advocacy services

115A Home building advisory and advocacy services

(1) The Minister may engage such persons or bodies as the Minister may determine to provide home building advisory and advocacy services to the public.

(2) The regulations may make provision with respect to the reports to be furnished to the Minister by persons and bodies engaged under this section.

(3) In this section, home building advisory and advocacy services means:

(a) the development and provision of education programs in relation to consumer rights concerning home purchase and home construction, or

(b) the provision to consumers of advisory and advocacy services in relation to home purchase and home construction, or

(c) the referral of consumers to building consultants and legal practitioners for further advice in relation to the technical and legal aspects of home purchase and home construction, or
(d) the publication of information as to the programs and services that are available from the Government or from other sources in relation to home purchase and home construction, or

(e) such other services as are declared by the regulations to be services that are eligible for funding under this section.

No. 8 Page 38, schedule 2, lines 3-13. Omit all words on those lines.

Amendments Nos 1 and 2 will enable home building advisory and advocacy services to be independent from the Government and to offer independent advice to consumers. This proposal is in line with the recommendation of the Joint Select Committee on the Quality of Buildings. As to amendment No. 8, the bill proposes that the conditions specified in parts 1 and 2 of schedule 3A be included in contracts to do residential building work and to supply kit homes respectively. Clause 3 of part 1 relates to final payment. The clause applies to work involved in the erection of a building for which an occupation certificate is required. The final payment, not being less than 5 per cent, will not become payable until the work satisfies all requirements that must be satisfied before an occupation certificate can be issued. The clause does not apply to contracts between head builders and subcontractors or developers and contracts for work not exceeding $1,000.

This amendment to the home building regulation was proposed in response to a recommendation of the joint select committee that the final payment of 5 per cent be withheld until the issuing of the occupation certificate. Recognising that there may be factors beyond the control of the builder that would prevent the issuing of the occupation certificate, the provision, as drafted, does not require the actual issuing of the occupation certificate. Instead it requires the work to reach the standard necessary for the issuing of the certificate.

Consultation has continued on the bill since its introduction. The Master Builders Association expressed concern that many residential contracts require work to lock-up stage only or to exclude certain work to be undertaken by the owner. In such cases the release of the retention may be delayed. The Housing Industry Association [HIA] also expressed concern about the provision. It argued that because the bill is introducing other checks and balances, such as mandatory inspections by the certifier, these make the retention provision unnecessary. It was also believed the provision will disadvantage small builders because it will tie up capital held in retention. It was argued that this runs counter to the Government's aim of having more financially viable builders. The HIA also argued that it would add to the cost of jobs because of the need to finance the 5 per cent retention. This would disadvantage consumers.

Having considered the arguments of the industry about the impact of the provision on small builders and the possibility of increased costs for consumers generally—bearing in mind that the vast majority of building work is performed satisfactorily—the Government seeks to amend the bill to remove this provision. I commend the amendments.

The Hon. Dr Arthur Chesterfield-Evans: Point of order: Government amendments Nos 1 and 2 as circulated cannot be moved unless the bill is recommitted. The clauses to which they relate have been voted on.

The CHAIRMAN: Order! The point raised by the Hon. Dr Arthur Chesterfield-Evans is correct. Government amendments Nos 1 and 2 cannot be moved at this time. However, I take it that the Hon. Ian Macdonald is persisting with Government amendment No. 8?

The Hon. IAN MACDONALD: Correct.

The Hon. JOHN RYAN [6.12 p.m.]: Amendment No. 8 has the support of the Opposition. I am not exactly sure from where this particular idea came. Although I recall this matter being discussed by the Joint Select Committee on the Quality of Buildings I do not remember the committee making a recommendation, but I stand to be corrected. It has been a busy day and I have not been able to check everything. As I said during my contribution to the second reading debate, we accept that there are some significant logistical difficulties in trying to issue an inspection certificate following work that has nothing to do with the building and difficulties associated with the sale of land. It is not uncommon for people to split the sale of land and the construction of a building. We understand that the occupation certificate does not necessarily suit all conditions and would tie up capital in the land sale until the building had been completed. The Opposition supports the amendment.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [6.13 p.m.]: I reluctantly support these amendments because of the logistical difficulties. I am concerned that even though the necessary payments have been made, an occupational certificate may not be issued. That has been the case with many buildings in the Sydney central business district [CBD], particularly with shoddy work on unit buildings. The Australian Democrats believe that private certifiers have been responsible for this problem, which still has not been addressed adequately. Once a builder obtains the final certificate an occupation certificate should be provided before the final payment to ensure that the building is fit for occupation. In many cases people who have made final payment have not been issued with an occupation certificate and technically cannot live in the building—although they often do. They are then in the unenviable position that the building cannot be sold.

Although these amendments have been moved for logistical reasons such as landscaping, deleting the clause will result in people occupying premises without an occupation certificate. They may have to incur considerable expense for restitution in order to sell the property. I seek a commitment from the Government that it will address the issue. I have previously asked a question without notice about the number of buildings in the Sydney CBD that have not been issued with occupation certificates from one particular builder. Interestingly, shortly after I asked that question a builder very well known in town sued Sydney City Council with respect to certification. I wonder if that was merely a pre-emptive strike. I suspect that occupation certificates were not issued for a number of buildings because the walls between the units did not reach the ceiling but that fact was disguised by gyprock. This means that the units are not fire safe.

Government Amendment No. 8 agreed to.

Schedule 2 as amended agreed to.

Schedule 3

The Hon. IAN MACDONALD (Parliamentary Secretary) [6.16 p.m.], by leave: I move Government amendments Nos 9 and 10 in globo:

No. 9 Page 41, schedule 3, lines 1-6. Omit all words on those lines. Insert instead:

(b) that also provides for the sale of a dwelling-house already erected on the lot,

No. 10 Page 41, schedule 3, line 17. Omit "to be erected on the lot".

The Housing Industry Association has raised concern about the proposal for occupation certificates to be provided by the vendor prior to the settlement of transfer for a lot that is part of a house and land package. Where separate contracts are entered into for the purchase of land and the erection of the house, it is not considered feasible to delay the settlement of the land sale pending the completion and, in some cases, commencement of construction of the house. For that reason the Housing Industry Association asks that consideration be given to the removal of this provision. Having considered this request, it is agreed that where there are two separate contracts, that the transfer of the lot should not be unnecessarily delayed for the issue of the occupation certificate.

However, where the purchase of the lot includes either the construction of the dwelling or a newly constructed dwelling in one contract, it is considered appropriate that settlement not take place until the owner is provided with certainty that the dwelling can be occupied. Therefore, it is proposed to amend the provision relating to house and land packages to restrict it to a contract for sale of a lot that provides for the erection of a dwelling on the lot or the sale of a dwelling house already erected. Amendment No. 10 involves removal of the phrase "to be erected on the lot". This phrase needs to be removed as a consequence of amendment No. 9 as the amended clause now applies to dwelling houses already erected as well as dwellings to be erected.

The Hon. JOHN RYAN [6.17 p.m.]: The Opposition supports these amendments. The arguments are similar to those for the previous amendments, although these amendments relate to the sale of land rather than the construction of a building.

Amendments agreed to.

Schedule 3 as amended agreed to.

Title agreed to.

Bill reported from Committee with amendments.

The Hon. IAN MACDONALD (Parliamentary Secretary) [6.19 p.m.]: I move:

That the report be now adopted.

Motion by the Hon. Peter Primrose agreed to:

That the question be amended by leaving out all words after "That" and inserting instead "this bill be now recommitted with a view to the further consideration of schedules 1 and 2".

Recommitted Schedule 1

The Hon. IAN COHEN [6.20 p.m.], by leave: I move Greens amendments Nos 1, 2, 3 and 5 in globo:

No. 1 Page 8, schedule 1. Insert after line 2:

[19] Sections 109EB-109EE

Insert before section 109F:

109EB Accredited certifiers to be appointed on nomination of Director-General

(1) This section applies in all cases in which a person proposing to carry out development appoints an accredited certifier, and not the consent authority, to be the principal certifying authority for the development or to be a certifying authority for any aspect of the development.

(2) The accredited certifier to be appointed is to be selected by the Director-General at random from among the accredited certifiers:

(a) who are registered under section 109EC in relation to the kind of development, or the aspect of development, for which the appointment is to be made, and

(b) who have indicated to the Director-General that they are available for appointment in relation to development being carried out in the area in which the proposed development is being carried out.

109EC Register of accredited certifiers

(1) The Director-General is to maintain a register of accredited certifiers (the Register).

(2) Each person who is an accredited certifier is entitled to have his or her name entered on the Register.

(3) In relation to each registered accredited certifier, the Register must indicate the kind of development, or the aspect of development, for which the certifier is duly qualified.

(4) The Director-General must remove from the Register the name of any person whose accreditation as a certifier is suspended or withdrawn under section 109ZA.

(5) The regulations may make provision with respect to the procedures to be followed in relation to the registration of accredited certifiers and the matters to be recorded in the Register.

(6) The Register is to be made available for public inspection, free of charge, at each of the regional offices of the Department.

109ED Accredited Certifiers Management Fund

(1) The Director-General is to establish an Accredited Certifiers Management Fund.

(2) Into the Fund are to be paid:

(a) all fees received under section 109EE (1) (a), and

(b) all interest accruing to the Fund.

(3) Out of the Fund are to be paid:

(a) all fees payable under section 109EE (1) (b), and

(b) all costs and expenses incurred by the Director-General in connection with the auditing of accredited certifiers under section 118Q, and
(c) all costs and expenses incurred by the Director-General in the administration of the registration scheme under section 109EC, and

(d) all costs and expenses incurred by the Director-General in the administration of the Fund.

(4) The regulations may make provision for or with respect to the operation and administration of the Fund.

109EE Accredited certifier’s fees

(1) For any development in respect of which an accredited certifier exercises the functions of a certifying authority under this Part:

(a) there are payable to the Director-General by the person by whom the accredited certifier was appointed as a certifying authority, and

(b) there are payable by the Director-General to the accredited certifier, such fees as the Director-General may from time to time determine by order published in the Gazette.

(2) The fees determined under subsection (1) (a) with respect to any function are not to exceed by more than 10 per cent the fees determined under subsection (1) (b) with respect to the same function.

(3) For the purposes of section 148A, any payment with respect to an accredited certifier's exercise of the functions of a certifying authority under this Part:

(a) that is made by or on behalf of the person by whom the accredited certifier was appointed as a certifying authority, otherwise than under subsection (1) (a), or

(b) that is accepted by or on behalf of the accredited certifier, otherwise than under subsection (1) (b), is taken to have been made or accepted on an understanding that the accredited certifier will act, or has acted, otherwise than impartially in the exercise of those functions.

No. 2 Page 8, schedule 1. Insert before line 3:

[19] Section 109G Restriction on issue of compliance certificates

Insert at the end of the section:

(2) A compliance certificate of any kind must not be issued for any building work or subdivision work unless the certifying authority has kept such field notes, photographs and other records as are required by the regulations to be kept in connection with the issuing of such a certificate.

No. 3 Page 8, schedule 1. Insert after line 11:

[21] Section 109H (3A)

Insert after section 109H (3)

(3A) An occupation certificate must not be issued for any new building unless the certifying authority has kept such field notes, photographs and other records as are required by the regulations to be kept in connection with the issuing of such a certificate.

[22] Section 109J Restriction on issue of subdivision certificates

Insert after section 109J (3)

(3A) A subdivision certificate must not be issued for a subdivision unless the certifying authority has kept such field notes, photographs and other records as are required by the regulations to be kept in connection with the issuing of such a certificate.

No. 5 Page 11, schedule 1. Insert after line 13:

(2) Without limiting subsection (1), the Director-General must ensure that each accredited certifier is subjected to investigation under this section at least once in every 3 years.

Amendment No. 1 seeks to break the contractual nexus between developers and certifiers. As with environmental impact statements, he who pays the piper calls the tune. It is this lack of genuine independence that corrupts the process. The problem at the heart of private certification is the indirect influence that developers exercise because, essentially, they control whether a certifier will get work. The amendment will set up a process whereby certifiers of building work are accredited. Accredited certifiers will then be part of a pool from which the director-general of planning selects at random a certifier to carry out the nominated work. All accredited certifiers are to be members of this pool.

The director-general of planning will maintain a register of accredited certifiers. The register will indicate the kind or aspect of development work that a certifier is duly accredited to perform. This is to be a public register that is open for inspection at all regional departmental offices. The director-general will also manage a fund to which fees for certification work are paid and from which certifiers will in turn be paid. That is where the contractual nexus between developers and certifiers to which I referred earlier is broken.

When people apply for drivers licences they do not have the freedom to choose a tester. Students who sit for an examination cannot choose an examiner; indeed, students have numbers to avoid recognition. This is why these processes can be considered fair and objective. There are some situations in which it is better to be at arm's-length. The Greens believe that certification of building compliance should be one of them. There is no doubt that the current system allows for cosy relationships between mates, and it is certainly leading to shoddy work being certified. One could suggest that corruption is occurring as well. The 1999 changes to the certification processes have not worked for consumers. The amendment will go some way towards addressing that. We are so close to solving the problem, yet so far away from solving it.

Greens amendments Nos 2 and 3 will expressly require that adequate records be kept for compliance certificates to be issued. Such records would include field notes, photographs, et cetera. That will ensure that, for example, before a compliance certificate can be issued for foundations, measurements must be taken, and perhaps photographs, to illustrate the point. Those records must be kept. The provisions will clearly convey to certifiers the message that their work is being monitored. Amendment No. 5 is a transparency provision. It requires that accredited certifiers are thoroughly audited at least once every three years. It is apparent from the number of complaints about shoddy work that the current auditing provisions are inadequate and are not sufficiently rigorous to deter malpractice. I commend the amendments to the Committee.

The Hon. IAN MACDONALD (Parliamentary Secretary) [6.23 p.m.]: The Government does not support Greens amendments Nos 1, 2, 3 and 5. The Government opposes amendment No. 1 because it is not considered appropriate for the director-general of planning to randomly nominate accredited certifiers on behalf of an owner. The appointment of the principal certifying authority is a fundamental part of the development process, and owners should retain the right to choose who certifies their buildings. This amendment would not accord with the national competition policy and the introduction of accredited certifiers to compete with local government in New South Wales.

The Government opposes Greens amendments Nos 2 and 3 as they would create a duplication in the existing Act and regulation. The Environmental Planning and Assessment Act already contains the power, by regulation, to set out which documents are to be provided by an accredited certifier to a council and which documents are to be kept by the accredited certifier. Therefore, the amendments are unnecessary. As for Greens amendment No. 5, the Environmental Planning and Assessment Act already provides clear controls for auditing accredited certifiers. PlanningNSW has been undertaking audits on a random basis and in response to complaints.

The Campbell inquiry also supported the continuation of auditing in a random and complaints-based manner. Random complaints will keep accredited certifiers continually on the alert that they may be audited at any time. Responding to complaints also ensures that serious issues are dealt with quickly by the auditors. This bill seeks to ensure that all certifiers, whether employed by councils or accredited, are randomly audited. To place an onus on the director-general to audit only accredited certifiers every three years ignores this important recommendation of the Campbell inquiry.

The Hon. JOHN RYAN [6.25 p.m.]: The Opposition does not support these amendments. However, they cannot be dismissed as silly. My colleague the Hon. Ian Cohen pointed out one drawback of the current private certification system that was identified and discussed by the Joint Select Committee on the Quality of Buildings, that is, there is clearly emerging in the current private certification system a relationship between some certifiers who seem to work for only one developer. Clearly, they are unlikely to upset that developer and, therefore, human nature being what it is, they are more likely to be less rigorous because they know that if they make trouble for a developer they will not be hired by that developer or even by other developers.

However, the Campbell committee also understood that there was value in the current system of private certification because it provided competition between the certifiers and councils. We were convinced that when councils provided certification as a monopoly operation that was not brilliant either. The new arrangements provide a level of competition between private certifiers and councils, and between all of those bodies with each other. Sometimes that level of competition created efficiency which was valuable and worthwhile for the industry. We tossed up whether it was worth considering the system of random selection suggested by the Hon. Ian Cohen. The drawback with such a system would be that, essentially, no private certifiers would bother to offer. There would be no value in being a private certifier; private certifiers would simply disappear. All certifications would be done by councils, which would basically remove the reform altogether. We understood the problem but we could not find a solution.

In the interim I understand that the Government suggested something that provides a partial solution. Instead of the developer choosing the certifier, now there is provision in the bill for the person who is hiring the developer to choose the certifier. That means that the person who ultimately pays for the project, and who has an interest in ensuring that it is completed with quality, will choose a certifier who rigorously supervises the developer. That reform appears to be worthwhile. The package before us includes that reform. Although it is not perfect, because we cannot find the perfect solution to this conundrum, it appears to be worth trialling. For that reason the Opposition believes that the Government's solution is preferable to that suggested by the Hon. Ian Cohen, although the honourable member's suggestion is not as silly as it may sound.

If the current system of private certifiers is unable to be improved in terms of the quality of its output, we may have to take up the honourable member's suggestion. In terms of auditing, the idea of random auditing seems to be a sound idea. The Joint Select Committee on the Quality of Buildings was not concerned about random auditing. The issue was whether any auditing was taking place, because up until recently only one person was available to audit private certifiers. And he had audited all of four certifiers! That does not exactly suggest enormous rigour in terms of auditing. However, I understand that PlanningNSW has made a commitment to employ many more auditors who, hopefully, will be more rigorous.

I understand that the auditors will be looking more closely at private certifiers who tend to work for one developer. In those circumstances it seems that those certifiers will be subject to the auditing procedure the Hon. Ian Cohen has in mind: that some time within three years an auditor will look at the certifier's documentation. Under the circumstances, that is entirely appropriate. If the majority of a private certifier's work is for one developer, it could almost be said that that certifier belonged to that developer and required a much more rigorous level of auditing. Chances are that that certifier would be audited some time within three years.

Given the likelihood of the objective of the Hon. Ian Cohen being met in the reformed regime, the Opposition sees no reason to make that legislative amendment. However, if the reform is inadequate and the objectives we want are not achieved—and there have been some catastrophic outcomes in high-rise buildings; the committee visited some buildings where the fire safety requirements were totally inadequate—more radical solutions will have to be considered. For the moment we are prepared to go with the Government's reform proposal and we will not support these amendments.

Amendments negatived.

The Hon. IAN COHEN [6.30 p.m.]: I move Greens amendment No. 4:

No. 4 Page 9, schedule 1. Insert after line 12:

[27] Section 109ZA (2) (e)

Omit "300". Insert instead "1,000"

This amendment proposes to increase the maximum penalty that can be imposed on an accredited certifier found to have acted wrongly or negligently. It increases the maximum penalty from 300 penalty points to 1,000 penalty points. While I commend the amendment, I have some concerns about the direction the Greens are taking in increasing penalties, which is not normally our style. Nevertheless, it is obvious the Greens' preference would have been to have the Government accept the other more worthwhile amendments. Given that we now have little choice I maintain that this amendment is better than nothing.

The Hon. IAN MACDONALD (Parliamentary Secretary) [6.31 p.m.]: It is good to know that the Greens are showing some flexibility in their thinking these days. They have joined the law and order campaign. The Government is happy to support the amendment, which seeks to increase the maximum penalty that can be imposed on an accredited certifier found to have acted wrongly or negligently. It will give the Administrative Decisions Tribunal greater flexibility when exercising its power.

The Hon. JOHN RYAN [6.31 p.m.]: The Opposition is happy to support this amendment. It is good to have the Greens joining in the law and order auction. Later we will need standard minimum penalties, but we can get to that before the next election.

Amendment agreed to.

Recommitted Schedule 1 as amended agreed to.

Recommitted Schedule 2

The Hon. IAN MACDONALD (Parliamentary Secretary) [6.32 p.m.]: by leave, I move Government amendments Nos 1 and 2 in globo:

No. 1 Page 35, schedule 2. Omit proposed paragraph (a1) (to be inserted in section 114 (3) of the Home Building Act 1989 pursuant to Amendment No. 1 of Australian Democrats amendments (C-088) made in committee).

No. 2 Page 35, schedule 2. Omit proposed Part 7A (to be inserted in the Home Building Act 1989 pursuant to Amendment No. 2 of Australian Democrats amendments (C-088) made in committee). Insert instead:

Part 7A Home building advisory and advocacy services

115A Home building advisory and advocacy services

(1) The Minister may engage such persons or bodies as the Minister may determine to provide home building advisory and advocacy services to the public.

(2) The regulations may make provision with respect to the reports to be furnished to the Minister by persons and bodies engaged under this section.

(3) In this section, home building advisory and advocacy services means:

(a) the development and provision of education programs in relation to consumer rights concerning home purchase and home construction, or

(b) the provision to consumers of advisory and advocacy services in relation to home purchase and home construction, or

(c) the referral of consumers to building consultants and legal practitioners for further advice in relation to the technical and legal aspects of home purchase and home construction, or

(d) the publication of information as to the programs and services that are available from the Government or from other sources in relation to home purchase and home construction, or

(e) such other services as are declared by the regulations to be services that are eligible for funding under this section.

These amendments will enable home building advisory and advocacy services to be independent from the Government and to offer independent advice to consumers. They are in line with the recommendations of the Joint Select Committee on the Quality of Buildings.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [6.32 p.m.]: I support these amendments. However, I intend to move an amendment of my own. I moved my previous amendments because a home building advisory and advocacy service was suggested in recommendations 3 and 29 of the Campbell committee but was not included in the bill. That distressed Irene Onorati, so I moved amendments to include it. The only thing wrong with those amendments was that the service was to be set up as a statutory corporation and the Government did not want to have a statutory corporation, because it did not want the consequent legal liability. I thought that change was reasonable, as recommendation 3 of the Campbell report was that the service be set up as a non-government corporation.

These amendments are slightly different from mine but their content is substantially the same. They will make the home building advisory and advocacy service a non-government organisation somewhat more at arm's-length. The first of my previous amendments insisted that the service be funded. I will accept this amendment—the whole concept has massive support—provided the Government accepts my amendment, which I now move:

That Government amendment No. 2 be amended by omitting the word "may" from line 1 of proposed section 115A (1) and inserting in lieu thereof the word "must".

The effect of this amendment is that the Minister must engage such persons or bodies as the Minister may determine to provide home building advisory and advocacy services to the public. In other words, it is no longer discretionary for the Minister; he must establish that home building advisory and advocacy service. I support the Government amendments as amended by my amendment.

The Hon. Dr PETER WONG [6.35 p.m.]: I move:

That Government amendment No. 2 be amended by omitting the word "may" from line 1 of proposed section 115A (2) and inserting in lieu thereof the word "must ".

I support the Government amendments provided that it accepts the amendment of the Unity Party. It is consistent with my earlier amendment that the annual report must be furnished for the Minister and the public to examine.

The Hon. IAN MACDONALD (Parliamentary Secretary) [6.36 p.m.]: The Government supports these absolutely sterling amendments.

The Hon. JOHN RYAN [6.36 p.m.]: There is obviously a story or two behind the arrival of these amendments. Perhaps it is a story best not told, but I know some public servants have been trying their hardest to make sure that amendments of the highest quality arrived before the Committee. I congratulate Julie Heraghty, Chris Aird and Peter Schmidt, who have been watching us with some frustration while we have been caught up in other things but who have worked tirelessly to achieve a legal outcome that would satisfy the Government's stated intention of establishing a non-governmental agency as recommended by the Joint Select Committee on the Quality of Buildings. That is to be commended.

The importance of establishing a non-governmental agency as an advocate for consumers cannot be overstated. It is absolutely vital. Every other stakeholder in the building industry is represented by someone, be it the Master Builders Association, the Housing Industry Association, insurers and so on. The people who supply all the money to make the industry work are the consumers. They have been totally unrepresented except for one sterling person in New South Wales, Irene Onorati. We all know her. We have all had our ears bitten by this lady. Regardless of her irascible temperament, we all admit she has been totally committed to this cause and has done enormous service to the consumers of building works in of New South Wales. Her heart is certainly in the right place.

Honourable members have seen Irene's enormous generosity. She gives of her time and not an insubstantial amount of her resources to help people who are, in some instances, in desperate need, even though they may have bought something phenomenally expensive. Sometimes those people have done all their money and are in desperate circumstances. Sometimes Irene Onorati spends all day from dawn until dusk on the phone or on the fax machine working for them. The service that this organisation will ultimately provide has until now been conducted from Irene Onorati's kitchen table. It is inappropriate for the State of New South Wales to impose all that responsibility on one person.

On odd occasions some of these matters have come to my desk, and sometimes even short bursts of dealing with them have driven me near to the point of nervous exhaustion. It might be said that Irene Onorati's temperament sometimes makes her hard to deal with. I am not surprised that at times she is a bit hard to deal with. I am sure she would accept that. I know that on this occasion she would like me to pay tribute to her long-suffering late husband, who tolerated the burden that all of her work imposed. Sadly, he passed away a few months ago. It is appropriate that we pay tribute to Irene Onorati. I sincerely hope that at some stage we see fit to offer her some Australian honour. The work she has done on behalf of the community has been outstanding. I commend the Government amendments and the amendments to Government amendment No. 2 to the Committee.

The Hon. Dr PETER WONG [6.41 p.m.]: I omitted to mention that in a letter to me Mrs Onorati asked that her thanks be recorded for the excellent work that the Hon. John Ryan has done.

Reverend the Hon. FRED NILE [6.41 p.m.]: The Christian Democratic Party is pleased to support the amendments for they will be of considerable benefit to consumers. In recent years most correspondence we have received has been from consumers who have been angry and upset about the quality of works done by home builders and so on. Hopefully, this legislation will gives such persons a way to deal with their grievances and, in the long run, eliminate those sorts of problems from the building industry.

The Hon. IAN COHEN [6.42 p.m.]: Though I appreciate the rush to deal with matters, I feel compelled to take a moment to support what was said by the Hon. John Ryan. Mrs Irene Onorati has done a fantastic job. She has put her heart into it. Irene Onorati and her friends have suffered from the difficulties wrought upon them as innocent victims. She has been a very brave person, because she would not otherwise have taken on advocacy of these matters. I know the Greens would support me in saying that Mrs Onorati deserves official recognition for the fantastic work that she has done for the community.

The Hon. HELEN SHAM-HO [6.43 p.m.]: I endorse what was said by the Hon. John Ryan. I want to put on record my appreciation of the good work done by Irene Onorati over a long time for consumer groups and individuals. They have benefited greatly from her work. Other community members also have suffered because of these issues. They have all suffered enough. I hope this legislation will go some way to addressing these major problems.

Government amendment No. 1 agreed to.

Amendment of the Hon. Dr Arthur Chesterfield-Evans of Government amendment No. 2 agreed to.

Amendment of the Hon. Dr Peter Wong of Government amendment No. 2 agreed to.

Government amendment No. 2 as amended agreed to.

Recommitted schedule 2 as amended agreed to.

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

The Hon. Ian Macdonald, on behalf of the Leader of the Government in the House according to the resolution of the House of 30 October 2002, tabled the Government's response to report No. 15, entitled "Feral Animals", tabled 29 October 2002.

Ordered to be printed.

[The Deputy-President (The Hon. Helen Sham-Ho) left the chair at 6.46 p.m. The House resumed at 8.00 p.m.]

The Hon. IAN MACDONALD (Parliamentary Secretary) [8.00 p.m.]: I move:

That this bill be now read a second time.

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

Leave granted.

I am proud to introduce this bill, which is a key element in a process of forest conservation and reform unprecedented in the history of this State.

This bill brings the total area of new parks and reserves created by this Government, through its regional forest assessment process alone, to more than 1 million hectares.

This is an unparalleled conservation achievement.

This bill delivers to the people of New South Wales an additional 145,000 hectares of national parks and other reserves up and down the east coast.

It also gives additional statutory protection to more than 300,000 hectares in forest management zones in which logging is not permitted on state forests in the upper and lower north east regions.

And it achieves all this without any impact on the timber industry and without any impact on the forest agreements which this Government has forged to give certainty to industry and to ensure the ecologically sustainable management of our forests.

This bill is in many ways the culmination of all the achievements of our forest policy which this Government has delivered on since 1995.

It does not mean that the efforts to improve conservation and management of our forests is complete, but it does mean that this Government has put in place a reserve system, combined with a suite of other forest reforms, which not only increases the immediate protection of significant areas but also improves the way in which forests are managed for their conservation and resource values.

In delivering important conservation outcomes in the northern regions, the bill implements the Government's commitment to complete its assessment of public lands in the upper and lower north east regions of New South Wales, given in our 2001 Action for the Environment Statement.

As a result, approximately 145,000 hectares are being immediately added to reserves under the National Parks and Wildlife Act in north eastern NSW and in the southern and Eden regions.

This includes transfers from State forest, Crown land (including leasehold land), freehold land, and also transfers from Crown reserve to State conservation area.

I wish to emphasise that the State forest considered for transfer to national park and other reserves was confined to forest management zone 1, 2 and 3A. There are also some small areas of FMZ 7 (non forestry use) and FMZ 8, an interim zoning, which have been agreed for transfer.

Some small areas of forest management zone 3B and 4 within State forests were included in the bill in advance of their transfer to FMZ 2 or 3A.

These areas have been agreed between State Forests and National Parks and Wildlife Service for transfer to FMZ 2 or 3A–but this had not occurred by the time the bill was introduced.

Accordingly, the Government will move an amendment to remove these areas from the bill, to ensure no areas of State forest in which logging is permitted are transferred by the bill.

Logging is not permitted in forest management zones 1, 2 and 3A and, accordingly, timber volumes will not be affected by the outcomes enshrined in this bill.

Therefore the bill fully preserves the regional forest agreements this Government entered into with the Commonwealth, which allows for the upgrading of areas from informal to formal reserve.

Clause 69 of the Regional Forest Agreement for north-east NSW agrees to the enhancement of the reserve system through "the acquisition of private land by voluntary sale, transfers of Crown lands or transfer of land from an existing reserve tenure to one of higher conservation status."

The agreement requires that any enhancements do not "impede the management of State forest lands or the meeting of wood supply commitments in the region".

Consistent with this, the bill does not in any way affect the 20-year wood supply agreements entered into with the timber industry—agreements which provided it with the certainty they had long been seeking and which previous Governments had failed to deliver.

The timber industry is, of course, not the only industry with an interest in the management regimes of public land. This Government is mindful of the potential effects of changes in tenure over public land on surrounding neighbours and on licence holders.

The changes which this bill implements have been undertaken to improve conservation outcomes while taking into account the impact on other users.

The Government's occupational permit task force will consider management issues relating to impacts on licence holders. Any economic and/or social effects of termination on licence holders will, as far as possible, be dealt with on a case-by-case basis through the task force.

It is not the intention of the Government that licence holders be unduly disadvantaged by its decisions.

The role of the task force will be to assess the impact on land-holders of the revocation of occupational permits and permissive occupancies.

The task force will recommend on initiatives to ameliorate impacts such as the acquisition of freehold land and Crown leases that are no longer viable and on compensation for infrastructure that can be used in the management of the park or reserve.

The task force will include a representative of the NSW Farmers Association and will be based on the model effectively used following the upper north east and lower north east decisions in 1998.

The task force will also consider any economic and social impacts, and the amelioration of these impacts, on occupational permits and permissive occupancies affected by these decisions such as transitional arrangements, fencing and access issues.

This Government has always aimed to achieve a balance with its forestry decisions—to take into account and deal with the issues which all stakeholders have.

That is why we will not allow licence holders to be neglected by this process, and will make every effort to ease the transition from one tenure to another.
I think it is also important to draw attention to the new category of State conservation area under the National Parks and Wildlife Act.

This new category of reserve was established with a dual purpose: to protect conservation values while permitting mineral and petroleum exploration and production.

The category of State conservation area has been created to allow for exploration and mining to proceed while also protecting conservation values.

While exploration and mining will require the concurrence of the Minister for the Environment and environmental impact assessments, it is important to emphasise that the Government intends that exploration and mining will occur within State conservation areas.

It is acknowledged that there will continue to be natural areas which have both high conservation values and high mineral value over which the category of State conservation area would still not be appropriate.

State conservation areas are those areas where it has been agreed that it is possible to manage the area for conservation and permit exploration and, if significant discoveries are made, to permit mineral and petroleum production.

If I can deal firstly with the key conservation outcomes on the east coast, in the upper and lower north east regions, the bill provides for the immediate addition of approximately 121,000 hectares to management under the National Parks and Wildlife Act 1974.

This is made up of approximately 69,700 hectares in national parks, 3,800 hectares in nature reserves and 47,500 hectares in State conservation areas.

State conservation area additions include both transfers from Crown reserve and the creation of new State conservation areas.

An additional approximate 59,000 hectares will be transferred to the National Parks and Wildlife Service estate after finalisation of discussions with stakeholders, and through voluntary acquisition of Crown leasehold lands by the National Parks and Wildlife Service, bringing the potential maximum reservation to approximately 204,000 hectares.

In the southern and Eden regions, the bill provides for the immediate addition of approximately 24,000 hectares of Crown reserve to management under the National Parks and Wildlife Act 1974 as State conservation areas.

The bill creates 52 new national parks, nature reserves and State conservation areas and provides additions to 41 existing parks and reserves in the northern, southern and Eden regions.

Furthermore, the bill provides the increased statutory protection of special management zones on State forests under the Forestry Act 1916, which I will discuss in more detail at a later point.

This bill gives effect to key aspects of the Government's forest policy, including its commitment to the creation of a comprehensive, adequate and representative reserve system.

The bill also provides for other miscellaneous actions, including revocation of certain State forests in the Sydney and Eden regions for declaration as nature reserves and the transfer of an area in the Eden region to the local Aboriginal land council.

Our success in delivering on this policy is a great achievement for the people—not only of New South Wales but for those beyond our borders. The legacy of this Government's decisions on our forests will be applauded by future generations.

Seven years of forest assessments under this Government has resulted not only in unprecedented levels of scientific and other data, but also in the conservation of more than one million hectares of New South Wales forests.

It has also resulted in a legislative process for ensuring ecologically sustainable forest management through forest agreements and integrated forestry operations approvals.

And it has resulted in 20-year security for the timber industry.

Our aim has been to create a reserve system which is comprehensive, adequate and representative, protecting and conserving the biodiversity of the State's forests through scientific and systematic rather than piecemeal reservation, while at the same time creating viable and ecologically sustainable forest industries.

Central to this achievement has been the Forestry and National Park Estate Act 1998. That Act was a major piece of legislative reform which subsequent forestry legislation, including this bill, has been based on.

I am proud that I can set before you this bill which is a key element in such a major undertaking of forest reform.

I now turn to the details of the bill, the object of which is to transfer certain land to the national park estate and to make provision for the transfer of certain land to Aboriginal ownership.

The bill is divided into three parts, which I shall outline to the House.

The first part is the preliminary section, which, among other things, provides for the commencement of the proposed Act on 1 January 2003.

Part 2 deals with land transfers, the details of which are described in the schedules, which I shall discuss shortly.

I draw your attention to clause 11 of the bill, which enables the Director-General of National Parks and Wildlife to adjust the descriptions of land in schedules 1, 2, 3, 4, 6 or 7. These adjustments must be in order to alter the boundaries of the land for the purposes of the more effective management of national park estate land and State forest land and to adjust boundaries to public roads.

Any such adjustment must not result in any significant reduction in the size or value of the land. Adjustments are also authorised in connection with easements.

The Director-General must have the agreement of relevant Ministers to make any changes.

Adjustments must be made before 31 December 2003 or, in the case of an adjustment of the boundary of land adjoining a public road and land described in schedule 4, by 31 December 2007.

Part 3 of the bill covers a number of miscellaneous matters giving effect to the provisions of the bill.

I now turn to the schedules to this bill. Schedule 1 deals with State forest reserved as national park, nature reserve or State conservation area in the northern region.

Schedule 2 deals with Crown lands that are reserved as national park, nature reserve, Aboriginal area or State conservation area in the northern, southern and Eden regions.

Schedule 3 sets out the lands within State forests that are declared as special management zones under the Forestry Act 1916 in the northern region.

Schedule 4 sets out the land, whose dedication as State forest is revoked, and is vested in the Minister administering the National Parks and Wildlife Act 1974 for the purposes of part 11 of that Act in the northern region.

Schedule 5 deals with State forest that are to be transferred to the Eden Local Aboriginal Land Council.

Schedule 6 deals with freehold land vested in the Minister administering the National Parks and Wildlife Act or Her Majesty, reserved as national park or State conservation area in the northern and southern region.

Schedule 7 deals with the revocation of remnant flora reserves in the northern and Eden regions. These are fragments remaining after the transfer of the bulk of those flora reserves to the national park estate by the Forestry and National Park Estate Act 1998.

Schedule 8 makes ancillary and special provisions relating to transitional arrangements. These include the exclusion of freehold and certain leasehold interests from the provisions of the bill, except in the case of land that immediately before the commencement of the Act was vested in the Minister or Her Majesty for the purpose of part 11 of the National Parks and Wildlife Act 1974.

It deals with existing interests and gives the Minister administering the National Parks and Wildlife Act administration of those interests where land is transferred to the management of the National Parks and Wildlife Service.

Schedule 8 also contains special provisions with regard to access roads within national parks, nature reserves et cetera.

Schedule 9 amends the Forestry Act 1916 to provide that a notice declaring an area of State forest to be a special management zone may only be revoked by Act of Parliament.

Schedule 9 also amends the Native Title (New South Wales) Act 1994 to preserve native title rights and interests in respect of a reservation, dedication or vesting of, or declaration over, land or waters by the operation of the proposed Act.

The assessment process in the east coast forests of this State has been conducted with the participation of stakeholders at every level. It has created unparalleled levels of conservation in our forests while ensuring the viability of ecologically sustainable forest industries.

I commend this bill to the House.

The Hon. PATRICIA FORSYTHE [8.01 p.m.]: It is a pleasure to speak on the National Park Estate (Reservations) Bill because it gives me the opportunity to make some comments on the environmental background to this legislation. This is an important bill, but, as the Coalition said in the other place, we have a great deal of concern about the process that has underpinned it, not with the principles enshrined within it. At the outset may I say that it is an enormous privilege to be the shadow Minister for the Environment—a privilege that would be surpassed only by being the Minister for the Environment.

The Hon. Ian Cohen: Hear! Hear!

The Hon. PATRICIA FORSYTHE: The Coalition intends to address that matter next year. I acknowledge the interjection because I believe all members of this House recognise that the environment is important. It is becoming more and more clear to the Coalition that the public policy decisions taken on the environment are important not only for the current generation but also for future generations. During a period of drought and at a time when serious adversity is being caused by bushfires, the environment is brought into stark focus. All honourable members must stop to consider whether decisions that have been taken in the past and decisions being made at present are in the best interests of the whole community and the future of the environment.

I have been reading with much interest "Blueprint for a Living Continent", a paper prepared by the Wentworth Group of Concerned Scientists and delivered to the Federal Government on 1 November 2002. This is a document of such importance that all members of this Parliament should pay close attention to it. The principles espoused in that paper make it clear that many of the decisions taken in the past will not serve us well in the future. If the environment has been an issue of importance and, indeed, some controversy for many years, it will again be brought into sharp focus in the next Parliament and parliaments of the future because we will have to come to grips with issues that have arisen out of the combination of the drought and other factors—particularly bushfires at this point of time—and all of those factors are relevant to this legislation. My attention was drawn to page 14 of the Wentworth paper, which points out that the reality is simple. The paper states:

... we cannot fix our environmental problems by wishing them away and we can't expect our farmers to pay the full cost of repairing past mistakes. Our nation was built on the back of our rural industries and all Australians have benefited, not just farmers.

I cite that reference as an introduction to the position that the Coalition will take on this legislation. As I stated at the outset, the Coalition does not oppose the bill in principle. The Coalition has a long history of support for the national park estate. The Coalition is proud of that history, which will underpin future Coalition policies. However, having said that, I must say that it is the responsibility of government not only to operate on good principles but also to follow good practices.

The Coalition accepts the proposal enshrined in this legislation to transfer 145,000 hectares of land comprising forests, Crown land, leasehold land, freehold land and Crown reserve land in the upper north-east region, the lower north-east region and the Eden region of New South Wales to the national park estate. However, the process giving rise to the legislation was flawed. I reiterate that the Coalition is not against the principle, and no-one should quote anything in this speech to support a claim that the Coalition opposes the objective of the legislation. However, we are absolutely convinced that the Government got the process wrong. Although this bill relates to national parks, it has been brought forward as a result of the Resource and Conservation Assessment Council [RACAC] process. This bill is the responsibility of the Minister for Planning—a Minister who is said to be impartial in the process—not the Minister for the Environment or the Minister for Forestry. I thank the Minister for Planning's advisers for providing me with an appropriate briefing. I was particular about the questions I asked at that briefing

One question that I asked related to permit holders, those people who had grazing licences, occupational permits to graze. I asked what was the likely number of families impacted by this legislation. I wrote down the answer, and there were two other people present at the meeting. The Minister's advisers told me that they expected the number to be about 35. After talking to the New South Wales Farmers Association and other people with knowledge of and an interest in the area and reading correspondence from people on the North Coast and the Grafton region, it seems that the number is more like 150. That is a fundamental issue because, first, it tells me that the Government does not know the impact the bill will have. Second, it is clear that the Government has not consulted. The Minister said in his speech in the other place that before introducing the bill the Government had not consulted with the people. Its intention is to do so after the bill has passed through Parliament. The Government will then set up a task force, which it claims will be appropriately representative of all the interests.

The Government particularly identified the New South Wales Farmers Association as one of the key groups, as if that is meant to justify the process. The Opposition believes that a better approach would be to indicate an intention and bring in a draft bill. It has been a longstanding practice to introduce draft legislation as a basis for consultation and then work through the outcomes of the legislation. But the Government should not ask Parliament to pass the bill and then tell the affected people what will happen to them. That is the wrong way around. The Government should take the affected people into its confidence. Shortly, I will read into Hansard the views of some of those who will be affected.

While the bill is important to the future of the environment, we must never forget—and it will be a hallmark of my term if I am Minister for the Environment—that the process of dealing with this sort of legislation involves people as well. And this bill impacts on people. When the bill was debated in the other place the Coalition sought three principal assurances. The first was that the part of forest land to be excised from State forests and handed to the national park estate would in no way impact on the 20-year supply of timber under the regional forestry agreements. The Minister for Planning gave that assurance—and that is the key. If that assurance had not been given, many of the principles underpinning the bill would not have been achieved.

The Government gave an assurance. I have now seen the amendments the Government intends to move to correct its mistakes. It did not get it right; I will say more about that later. What does that tell us? First and foremost it tell us that the process was wrong. The claims of the Opposition about the process have been proven by the fact that the Government has had to correct the maps and amend the bill. The assurance given by the Government that the bill will not impact on any timber supplies has proven to be unreliable. Mistakes have been found. That suggests to us that the bill has been introduced in haste.

We also sought an assurance that freehold land would be transferred into the national park estate only by voluntary agreement. The Minister's advisers assured me during my briefing that all of the freehold land that will go into the national park estate has already been purchased by the National Parks and Wildlife Service and it is now only a matter of transfer of title. I put that on the record because it was a matter of concern. Our concerns in that regard have been satisfied. However, the third issue for the Coalition, a matter that has caused us so much concern, is the fact that the bill is being dealt with on 5 December 2002 when two overwhelming events are occurring. Almost 100 per cent of the State and absolutely all of the areas to be incorporated in the National Park Estate (Reservations) Bill 2002 are drought declared. Secondly, on this very day the State is feeling the terrible impact of bushfires. Bushfires have already been through some of these areas and have had a terrible impact on many of the people there. So we are dealing with the bill on what is effectively the last sitting night of the Fifty-Second Parliament.

In the lower House the Coalition spokesperson said that the bill will make very little change but will have a large impact on people. The bill will not impact on the timber supply because the land involved is already in special management zones. It is already land that cannot be logged. It is already in the areas that have been determined to be inappropriate from which to gain timber, for topographical and other reasons. The freehold land has already been purchased; it is a question now of incorporation into a national park. So nothing changes there; it is already effectively in the hands of national parks. What is the only thing left? The impact on those people who have an occupational permit. I want the House to understand that this is about people. Yes, it is a bill about the environment, and environmental considerations are important, but we must never lose sight of what it means when we make decisions, when public policy impacts on individuals. I have a number of letters from people, broadly speaking in the Grafton community, who will be directly impacted by the bill. I thank each of them for their correspondence. I have not asked each of them for permission to identify them by name so I will not, but I will quote from each of them a little of what they say it will mean for them if the bill is passed. The first letter states:

Our family operates a grazing enterprise north west of Grafton, we have our freehold land and we also lease as an Occupation Permit (OP) a large parcel of land on an annual basis from State Forest. The OP lies between the two parcels of freehold.

This is the area that will be particularly affected by the bill. The letter states further:

The recent bushfires burnt 98% of our freehold and OP area, fires from Guy Fawkes and Gibraltar National Parks swept through our place and we are now faced with a lot of hungry cattle, no feed and burnt fences. We lost between 75 and 100 kilometres of fencing and at a minimum rate of $3,500.00 per kilometre... who will pay? This latest move by the State Government will be the last straw for not only us but many farming families.

No one from government has talked to us about how this will impact on us, they make these decisions and just walk away.

This family has two freehold parcels of land with the leased land in the middle. If we pass the bill tonight, they will have not only hungry cattle, no feed and burnt fences, but also they will have to fence around the leased area because under the changes their cattle will not be able to stray onto the area that will become national park. They will have to retain the cattle on their burnt land without any feed at a time of drought. That will be the consequence if we pass this bill tonight. Another letter states:

Our family will lose the only remaining Occupational Permit when this National Park Estate (reservation) bill is enforced.

This is not new to us, we have lost a parcel of land with every announcement made by the Government since 1995.

They had extensive land and they say:

In 1996 the remaining thousand hectares and the adjoining occupation permit formed a new national park leaving us with a 66 hectare parcel of freehold too small to run cattle on, completely surrounded by national parks and no practical or legal access. This parcel was finally sold to national parks in 1999. We have one remaining occupation permit, it was riddled with forest management zones and just as we have been expecting we are now to be forced from this area.

Indeed, they may well be. Would it not be better if the Government had consulted with them prior to the bill coming into the House so they had some idea of their future? Because tonight, if and when this bill is passed, these people will know that hanging over their heads is an uncertain future. Where do they take their cattle in drought? There is no feed left in most of the rest of the North Coast. The cattle cannot be put on agistment when there is nowhere to put them.

The Hon. Richard Jones: Aren't you going to do anything for the wildlife?

The Hon. PATRICIA FORSYTHE: The Hon. Richard Jones could have been here earlier to hear the first part of the contribution. He might have understood the context in which I am putting this. Another letter states:

Along with the freehold area, parcels of Occupational Permits have always been a part of the Station dating back to the mid 1800's. Due to the long association with the freehold and always being managed as a whole property, the boundary between the lease and freehold is not defined nor fenced.

That clarification is going to be one of the issues because the next step for these people is that they are going to have to fence their property. What does that currently mean? Remember I am putting this in the context of time. For the benefit of the Hon. Richard Jones, who could have been here earlier, I am not saying it should not happen, I am saying that in the context of the drought and the fires and no consultation with these people, this is a very onerous piece of legislation. I quote from another letter I received from an affected land-holder:

The fires, the most severe coming from Chaelundi National Park, burnt 65 percent of our country. National Parks did not contact me or notify me of the approaching fire, the only contact made was after the first severe fire when they asked could they use the Station's airstrip.

We have lost fencing, drafting paddocks, gate posts and who will pay to replace them? The problem is, we put fences up and National Parks burn them down, this is the second time in three years fences have been burnt.

This latest Forest Management Zone Bill is nothing more than a land grabbing exercise by National Parks...

As I said, I am not objecting to the fundamental principles. But to put it into context, the affected people will have to deal with the issue of fencing. In many cases they will have no income. We are in a drought. Many of these people have had to get rid of stock.

The Hon. Richard Jones: We have always had droughts.

The Hon. PATRICIA FORSYTHE: You did miss the beginning of my contribution. I am not disagreeing, I am saying that the timing is wrong. The best thing the Government could have done was to have brought this in as draft legislation. The Government could have left it lying on the table for some time, and consulted first, not get the process the other way round, which is what has happened. These people have no idea about their future. I have already agreed that in the future we will have to change many practices. As I said earlier, I have read what the Wentworth group, as an eminent group of scientists, has said about the direction that we need to take. The need for environmental policy and agricultural policy is an important message we cannot ignore. But, in the process, we should not see everything in black and white but put it in the context of what it means for people on the ground and listen to what these people are saying. Another message headed "Another Blow for Farmers" states:

Notices will soon be sent to 154 farming families on the North Coast telling them to evict their cattle from Forest Management Zones within Occupational Permits (OP), as another 145,000 hectares are added to the National Park Estate.

The Minister's office told me they thought it might have been 35 families. The message that I have received states the number is 154 families. The Government does not know and it has not consulted. We are proud of the 145,000 hectares that might be there; we think it is important to add to the national park, but for goodness sake get the process right. Do not just go on principles, do not just have the Premier out there saying, "Isn't it fantastic we have added yet more land to the national parks", while ignoring the people. I came into this place to make a difference in the lives of people. I cannot just stand by and have people write to me that they have nowhere to take cattle to graze, or no money to rebuild fences that have been lost in fires. People will have to put in fences where they have never had fences because they are about to have a new boundary with national parks. It all has to be put in the context of the current drought. I ask that commonsense prevail. That is the position being taken by the Opposition. As one family wrote to me:

Many of the Forest Management Zones were burnt to a cinder in the recent fires when they ravaged through 470,000 hectares on the far North Coast and Northern Tablelands, nothing survived, flora burnt beyond its liking and the fauna is all gone. Nothing escaped this fire. The forest is silent. Now more of our land has been earmarked for the same type of management that allows this type of destruction to be so predictable.

Turning to management, I am perhaps a little softer than some of my colleagues who will speak tonight on this bill because I understand that there will be seasons when, for a number of climatic reasons, we are going to have severe bushfires. There will be severe bushfires that will ravage the national parks and other areas of the State—that is a given. The Government's argument is—and I do not think the facts in any way dispute it—that there is a culture now in the National Parks and Wildlife Service that is against appropriate hazard reduction and, in particular, hazard reduction where parks adjoin private land-holders.

I am a regular consumer of the New South Wales National Parks and Wildlife Service web site. I particularly like the section headed "Bushfires Summary", and I have been following its updates for weeks. Today we are going to add 145,000 hectares to the national park reserves. As at Tuesday 3 December, for the winter and spring period in an average year, over a five-year annual average, about 84,982 hectares would be burnt as a result of bushfires. How much would have been lost in the months from July to the end of November? It was 353,230 hectares. That is interesting because on 18 November the department was saying it was 359,000. I understand that one cannot be precise and the figures seem to have gone backwards. But the more significant issue is the number of fires that have started in a park and moved outside park boundaries. The five-year annual average is 21. These annual figures include the last bad bushfire year of 1997-1998—the worst year—and the annual average is 21. We were at 45 at the end of spring. Imagine what it will be like at the end of summer.

Fires have started outside parks and have moved into them. I do not want to get that out of balance, but when fires move outside parks, in almost all cases they will move into private land. Those are the sorts of messages we have heard here tonight. As we focus on adding to the national parks we have to ask the question, have we allocated sufficient resources to manage what we have? Have we allocated sufficient resources to be able to properly care for what we have and to deal with it at this most critical time? If we say we have sufficient resources in a normal year, that might be so, but this is not a normal year.

The National Parks and Wildlife Service web site always concludes with some fire fact, such as: Did you know that the National Parks and Wildlife Service is "the primary agency in New South Wales with fire suppression and fire management responsibility for parks and reserves in this State"? Notwithstanding the extreme weather conditions, the service has not been doing a good job. One only has to read what it means for people in the Grafton community who are about to lose their occupational permits. If the people affected were consulted, if they knew more about the declaration than when it appeared in the Parliament, and if the New South Wales Farmers Association and the Forest Products Association, who are both represented on the Resource and Conservation Assessment Council [RACAC], were given precise information about where it was to occur and what would be involved, not merely that it would occur, we could have worked through the process.

The Opposition will move a critical amendment to provide certainty for at least a minimum of three years. The drought may finish tomorrow or at some future time but we must have a starting point for proper consultation. Anything less and the process is flawed, which is proved by the fact that the Government will move many amendments tonight. The Government knows that when it gave a commitment in the other place that no timber supply would be impacted on, it got that wrong. If it got that wrong then potentially other aspects of the legislation could be wrong. If they accept the Opposition's amendment, we will be more than happy to support them at the third reading stage. If not, we will not be able to support the Government at the third reading stage of the bill.

The Hon. MALCOLM JONES [8.31 p.m.]: I oppose the National Parks Estate (Reservations) Bill, the object of which is to transfer certain land to the national parks estate in primarily the north-east region of New South Wales and to provide for the transfer of certain land to Aboriginal ownership. This follows land processed through the RACAC assessment system. One of the main complaints about the bill is a lack of consultation with stakeholders, who have not been informed. A number of families have been affected. Surprise! Surprise! Ever since I have been in this place I have continually drawn attention to the Government's lack of consultation on land tenure.

It seems that the hard lessons learned by the National Parks and Wildlife Service on consultation have not been transferred to PlanningNSW. I have been responsible for massive protests during the transfer of land tenure from one category to another. Generally, the National Parks and Wildlife Service have disregarded them. Over the years I have attempted to access submissions from the public to assess levels of support. Once upon a time this information was available under freedom of information, but some two years ago the current Minister for the Environment refused to grant access to public submissions on the basis that:

… copies of individual submissions could not be released to you as such disclosure may well breach relevant provisions of the Privacy and Personal Information Protection (PPIP) Act.

Because I was not happy with that response I took the matter to the Ombudsman. I argued that public submissions made to local councils or development applications [DAs] were treated differently. Chris Wheeler from the Deputy Ombudsman's office, who has done a terrific job for the people of New South Wales, extracted the following comments on the National Parks and Wildlife Service:

We drew Mr Gilligan's attention to chapter seven of the Ombudsman's FOI Policies and Guidelines concerning rights of members of the public to obtain access to objections or submissions lodged with councils about DA's. As the relevant section observes, the Ombudsman considers that such objections and submissions about DA's should generally be disclosed by councils on request, without the need to lodge an application for such documents under the provisions of the FOI Act.

The NPWS has now written to us advising it has amended its guidelines relating to privacy and the handling of public submissions. Those amended guidelines now assert that confidentiality will generally not be available in respect of submissions received from members of the public about reviews or proposals for NPWS managed lands.

The very subtle and slight changes in the attitude of the National Parks and Wildlife Service to dealing with the general public are most welcome and nice to experience. PlanningNSW can learn from these subtle changes. The public must be consulted, otherwise resentment will grow. We must have the public on side when we make decisions that require large amounts of financial commitment from the public to finance land management on this scale, otherwise funding ultimately will dry up. Many people who have access to, or tenure of, public land or whose land adjoins such land will be affected by any changes in land management. People have tenure of public land that has been drawn into the national parks system. The drought and resulting lack of stockfeed across the State have resulted in notification to terminate access.

Transferring land to the national park estate can create access issues. I canvassed long and hard on that issue at this time last year during debate on the national parks and wildlife amendment legislation. The bill seeks to move a substantial quantity of land into the State's national park estate. This involves transferring State forest, Crown land, leasehold Crown land, freehold land and Crown reserve land. The Government has refused to guarantee that freehold land will not be identified as wilderness. The bill exposes further land to such vulnerability. Some 52 new national parks are being created and additions are being made to existing national reserves and parks, but extra resources for park management are not mentioned. The National Parks and Wildlife Service has a poor management record, especially in hazard reduction, control of feral animals and noxious weeds, and access. However, the more enlightened management practices of the National Parks and Wildlife Service, which are emerging, are promising. I would like the Minister to provide more information about due consideration of these issues.

The National Parks and Wildlife Service has a poor record of hazard reduction. I have quoted figures many times in this House. The National Parks and Wildlife Service has a philosophical reluctance to hazard reduction. Hence, insufficient hazard reduction has been undertaken. A great deal can be done to minimise risk if extensive back burning is carried out during wetter periods to reduce hazardous fuel loads. However, we have had to yield to extreme environmentalist ideology that has contaminated the good management practices of the National Parks and Wildlife Service. The results are there for everyone to see. We often lose sight of the big picture when we talk about bushfires in national parks. The "and Wildlife Service" in National Parks and Wildlife Service tends to be forgotten by some environmentalists. When these bushfires burn, as they are a burning now, implementing hazard reduction practices cannot stop them.

Hazard reduction will minimise the intensity of fire in some areas. If hazard reduction had been undertaken responsibly in the past seven years, we would not be experiencing these catastrophes. Notwithstanding that, we would still have bushfires. Fires kill animals in the most painful way possible. The National Parks and Wildlife Service [NPWS] has a duty of care; it must do the best it can for those animals. The practices employed over the past few years have been totally irresponsible. Given current public opinion, I do not believe that these practices will be allowed to continue in the future, once El Niņo moves on and we return to more sane weather conditions.

I have referred to hazard reduction in this place many times. Premier Carr and Mr Debus have been told about this often enough to know better. Anyone who rejects that should check Hansard to see the number of questions that I have asked during question time and at successive estimates committee hearings. When I wrote this speech a few weeks ago I suggested that we should pray El Niņo would spare us the drought conditions that could quickly create firestorm conditions. Unfortunately, we are currently experiencing the worst firestorms ever. This year will be worse than last year; there is no end to it. I have not been able to spend much time with my bushfire unit, but when the House rises I hope to be able to help out. The firefighters are real heroes. Today is the International Day of the Volunteer. These people do not seek praise, although they deserve it.

Phil Cheney, the Commonwealth Scientific and Industrial Research Organisation's principal scientist and bushfire researcher, has been studying bushfire management for 20 years but land managers do not heed his words. He laments that during his working life he has been trying to persuade people about the need to undertake prescribed burning. He pointed out that when State Forests managed much of New South Wales bush there were regular prescribed burns designed to manage the tree crop effectively, but that certain elements of the conservation and wilderness movement did not believe in man-set fires. That is the source of the problem; it is a political issue, not a management issue, and it is being driven by a ruinous ideology. This State is being burnt to a cinder.

We also have problems with feral animals. General Purpose Standing Committee No. 5 has been involved in a lengthy feral animal inquiry and has produced a substantial report, which I commend to the Government. Sadly, the feral animal situation has reached crisis point. The committee visited constituencies throughout New South Wales and saw the devastation of properties and lives in rural communities. Feral dogs have been the main perpetrators of that devastation. The committee's report into feral animal says it all and contains many recommendations. I urge the Minister for the Environment, the Minister for Planning, the Premier and everyone else to read the report and the recommendations, especially the dissenting report, which was signed by the Hon. John Jobling, the Hon. Rick Colless and me. The report indicates that the feral animal crisis is worsening; it is far from over.

The NPWS must increase its funding commitment to feral animal management. It has the capacity to do so; it is extremely well funded when compared with other government agencies. If it were to focus more closely on this problem, it could target devastated communities. The transfer of land to the NPWS is fraught with danger. The Hon. Patricia Forsythe has eloquently enunciated the potential problems. We would be transferring land into a management system that is beset with difficulties that must be addressed. If they are not, we should not give the service any more land. It is as simple as that. My particular interest is the recreational use of public land. This bill lacks any safeguards for such use. For all of the reasons I and other honourable members have alluded to, I oppose the bill.

The Hon. RICHARD JONES [8.35 p.m.]: As I have said previously, the destruction of the Myall Lakes area by National Lead Inc. brought me into this Chamber. My involvement began about 30 years ago with the Myall Lakes committee. That is when I first met Milo Dunphy and the then Robin Askin—the former Premier later changed his name to "Robert"—told me that I might know something about publishing but I know nothing about politics. It is interesting that I have now come full circle: This will be my last speech on national parks and wildlife reserves. I am sure the Hansard reporters will be happy about that! I have previously shown the House a photograph of New South Wales taken a few weeks ago and one of Australia taken a few months ago. They demonstrate how little is left of our forests, particularly in New South Wales. We must take immediate steps to protect the remainder of the national estate.

The bulk of our forests are in public hands—most of the privately owned forests have been cleared, which is an indictment on those responsible. Far too much forest has been cleared over the years, and most of that clearing has taken place in the past 30 years since I first started campaigning on this issue. I am pleased to say that the Myall Lakes area has been a national park for some years. This bill will add another 69,700 hectares to the national parks system. People are complaining about these additions for various reasons. They believe that because of the drought we should not be adding land to the national estate and we should not be asking people to take cattle out of national parks. We need areas in the State for wildlife as well as cattle. Cattle are relative newcomers to this country; in reality they are feral animals. The wildlife has been here for millions of years but we are leaving it very little space in which to live. Only about 6 per cent of western New South Wales has been included in the national parks system, which is barely enough to provide refuges in time of severe drought.

An NPWS ranger told me the other day that two months ago he was receiving requests to shoot kangaroos, but over the past two months he had received virtually none because there were no kangaroos left to shoot. The NPWS is relying on those refugia to provide stock for a future return to the natural population level. Cattle and sheep should not be grazing in western New South Wales because the country is too fragile. The return from grazing on land in that area is very small compared to the potential return from tourism. It is about time people woke up to the potential of tourism, particularly if tourists come from Europe. They would be fascinated to see mobs of red kangaroos. They were common 30 or 40 years ago, but they are rare now. Each of those kangaroos is probably worth between $100 and $1,000 as a tourist resource. During the 1920s, two or three million koalas a year were shot for the fur trade. No doubt members of the National Party would be involved in that industry today if it were still operating. Koalas were virtually wiped out, and they are now estimated to be worth $1 million each in tourist dollars.

The Hon. Rick Colless: There are 15,000 koalas in the Pilliga scrub.

The Hon. RICHARD JONES: They would be worth $15 billion in tourism dollars, I presume. Tourism is the biggest growth industry in Australia. Periodically we have droughts, but the current appalling drought is one of the worst for a long time and seems to be exceeding that of 1982-83, when up to 70 per cent of all kangaroos on the eastern seaboard died. However, the National Parks and Wildlife Service denied that fact in answer to a question I put to it a few days ago. Today the killing quota is much larger than it was 20 years ago. Fortunately we have some remaining refugia, which had been acquired by the service. We desperately need those refugia. I am pleased that the service is not cutting off watering points in those national parks during this heavy drought. If it were, we would have precious few kangaroos left. I hope that the drought will break shortly. A lot of nonsense is talked about the management of national parks. During the parliamentary committee inquiry into feral animals we heard plenty of evidence to the effect that feral animals are controlled much better in national parks than in State forests, land controlled by the Department of Land and Water Conservation or private land.

The National Parks and Wildlife Service has had a lot of pressure placed on it to deal with feral animals. It is spending a lot more money than other government agencies and, I suspect, the private sector with respect to controlling feral animals. It is a nonsense to suggest that when an area is declared a national park it suddenly becomes a haven for feral animals—the animals were there before the area was declared a national park. Hunters have introduced feral animals across the State, including those who benefited by the appalling Game Bill that was passed earlier this year. Pig doggers are introducing pigs, deer hunters are introducing deer—and that is what is causing the problem. I had my eyes opened to the problem in Myall Lakes by one Henry Jones, an old friend of mine. He became my campaign manager in 1972, and during the campaign we achieved a number of firsts that I will not go into at this stage. It is good to know that some remnant areas are in national parks; I hope wildlife will have some refuge in those areas. It is true that the fires that rage through those areas periodically are sometimes caused by lightning strikes and sometimes by motorists throwing cigarettes from their cars—an appalling thing to do.

Reverend the Hon. Fred Nile: Ban smoking in cars.

The Hon. RICHARD JONES: During times of severe fire risk, such as now, people who throw cigarette butts from their car windows should pay a fine. Perhaps the current litter fine should be doubled or tripled—perhaps it should be thousands of dollars instead of a few hundred dollars.

The Hon. Patricia Forsythe: It is a few hundred dollars only because the Coalition amended the original litter bill.

The Hon. RICHARD JONES: Well, that is good. However, the fine should be a lot more than that. How many of the fires that sprung up instantly yesterday were caused by cigarette butts? Many times I have driven around the city and seen people throw cigarette butts out of their car windows—I am sure the Hon. Patricia Forsythe has seen that too. At night one sees the sparks hit the roadway. Recently in William Street I saw a person throw a cigarette butt out of her window. I opened the door and gave it back to her. She said, "I knew you were going to tell me off about that." I said, "Don't do it."

The Hon. Patricia Forsythe: It can be dealt with as a criminal offence.

The Hon. RICHARD JONES: Yes, especially at times such as this when it can result in the loss of life and property. The issue should be treated far more seriously. Smokers do not think about opening their car window and throwing out their cigarette butts. Smoking is not only a dreadful habit that kills people and causes problems for others—for example, infants—it also causes gigantic bushfires. It is one of those disgusting and disastrous habits that we have grown up with over the past 200 years, which is a pity. Garry West, a former National Party Minister, during a visit to the south, said that he would not add a single stick to the national parks system. The National Party has had an antipathy towards national parks forever. If the National Party had been in government during the past few years we would not have a fraction of the national parks that we currently have. I thank God that the National Party has been only a rump of the Liberal Party—if it had been in power many areas would be logged and not available for national parks. If that were so, we would have far fewer wildlife. Wildlife is under threat across the State.

The National Park Estate (Reservations) Bill creates 69,700 hectares of new national parks—we all welcome that—nature reserves and other informal reserves, which I am sure the community will welcome. However, a handful of anti-national park people will not welcome this bill—but they are a diminishing minority. Regional environment groups and I have a number of concerns about the bill and related policy decisions. Our main concern is the omission from the bill of key parts of the Government's environmental initiatives outlined in its Action for the Environment Statement in June 2001. To be consistent with and implement that statement this bill needs to include the following additional national park reserve outcomes. First, it needs to include the Brigalow Belt South reserve outcomes from the first western regional assessment. I have a photograph that shows that that is one of the last remaining areas and should be protected. Second, it should include the reserve outcomes of the Goulburn subregion of the southern comprehensive regional assessment [CRA] region.

Third, it should include the 14 icon areas under consideration by the Resource and Conservation Assessment Council [RACAC] in the north-east and the full complement of forest management zone [FMZ] 2 and 3A areas, previously agreed by the Government to be of sufficient size and configuration for transfer, including all those that are the subject of objections by the Department of Mineral Resources—that is, approximately 50,000 hectares. The bill is deficient in its provision of security for special management zones. While the bill attempts to provide improved security for State Forest informal reserves FMZ 2 and FMZ 3A by ensuring that the zones cannot be changed without an Act of Parliament, it places little legal constraint on the activities that can occur in the special management zones. Only a government policy decision prevents logging in that zone. Presumably, if the Coalition came to power in March 2003 it would start logging those special management zones.

The Hon. Rick Colless: Not true.

The Hon. RICHARD JONES: Well, the Hon. Rick Colless said that that is true. It is on the Hansard record, thank you.

The Hon. Rick Colless: Point of order: I did not say it was true. I said it was not true. The Hon. Richard Jones is verballing me and the Coalition. He is saying things that are simply not true. I ask him to withdraw those untrue statements.

The Hon. RICHARD JONES: I am delighted to withdraw that—I must have misheard him. I am pleased that he said "Not true." The map of the proposed special management zones is inadequate as it does not match the current agreed forest management zone map produced by State Forests in its "North-East NSW Ecologically Sustainable Forest Management Plan 2000". In fact, there are several map sheets from which the entire FMZ 2 and FMZ 3A areas appeared to have been deleted. Curiously, these match the areas where State Forests has been seeking to reopen rainforest for logging by overriding existing government mapping. I have seen an area of rainforest that has been left out. Therefore, I strongly object to this deletion and attempts by State Forests to reopen the existing rainforest mapping. The bill fails to include the upgrading of any FMZ 2 or FMZ 3A areas to flora reserves, despite both the New South Wales North-East Forest Agreement, section 2.3.3 and State Forests own forest management discerning guidelines requiring FMZ 2 and FMZ 3A to be upgraded to FMZ 1, and gazetted as flora reserves wherever possible.

This is the fourth year in which the Government has failed to implement that measure. One has to ask: why? The bill also provides for access roads to be excluded from new parks and reserves. Clause 7 (5) of schedule 8 to the bill requires the granting of a right of way to a land-holder that currently holds a right of way under the Forestry Act. However, this provision should be discretionary as there may be circumstances under which the right of way is no longer appropriate. The definition of "access" in the bill is very broad. Access provisions should apply only to motorised vehicles, particularly in light of the number of wilderness areas that would be affected by this provision. The time limit for amending boundaries, as set out in new section 11, is too long. All boundaries should be finalised within six months of the commencement of the bill and adjustments adjacent to roads after a maximum of 12 months. An Act of Parliament should not be required for changes to special management zones if the level of protection that they afford is improved. Requiring an Act of Parliament for such changes imposes a major administrative barrier.

All areas identified for reservation by the bill are encompassed by occupational permits. Despite the forest agreements for upper and lower north-east New South Wales requiring State Forests to phase out such permits by 1 July 2000, none have yet been phased out. Therefore, the bill should be amended to include the transfer of appropriate areas to FMZ 1 and their gazettal as flora reserves or, at the very least, the bill should specify that a thorough process to upgrade all FMZ 2 and FMZ 3A areas to the highest FMZ category possible should be conducted under the co-ordination of the Resource and Conservation Division of RACAC for completion by June 2003.

The bill should be amended to specify management criteria that include the protection of natural values such as the management principles referred to in section 30G (2) of the National Parks and Wildlife Act; specifically prohibit logging and other timber extraction in special management zones; and allow a special management zone to be amended if the area to be removed from the zone will immediately become a flora reserve—that is, FMZ 1—or reserved under the National Parks and Wildlife Act. The special management zone map should also be amended to put the missing map sheets back in so that the special management zones include all FMZ 2 and FMZ 3A from the SFM plans which have not been otherwise transferred to the National Parks and Wildlife Service estate. The bill should also be amended to identify and include FMZ 2 and FMZ 3A on State Forests purchasers which have since been gazetted as State forests. Proposed section 11 (9) should be amended to allow access roads to be closed where there is no physical means of vehicle access in existence and in use at the time of the commencement of the bill, bearing in mind that those who live in inholdings should have reasonable access.

I welcome these additions to the National Parks and Wildlife Service estate. I am positive that the majority of people in New South Wales, except for a very small rump, would also welcome these additions. It is extremely important that the people of New South Wales have adequate preserved areas to ensure that wildlife in this State does not become extinct. However, I regret that some of the areas that have been totally reserved do not include sufficient habitat to prevent the long-term extinction of some of our more endangered species. I hope that in the future we not only retain these areas for flora and fauna habitat but start reforesting some of the areas that have been unnecessarily cleared. I believe that with proper management we can have good farm production in some of these areas, as well as being able to conserve the flora and fauna of this State. I look forward to that happening from next March onwards.

The Hon. RICK COLLESS [9.02 p.m.]: There is not a lot of difference between the vision that the environmentalists of this country have and the vision that is held by the majority of people in the Coalition parties, particularly the National Party. While that might surprise some of our colleagues on the crossbenches and their supporters, I believe that that is the case. No-one in this world is more committed to maintaining an environment in a sustainable state than people who work with that environment every day, people who rely on that environment for their day-to-day existence—unlike the people who most often are seen as the strongest supporters of the environment, the environmentalists, who do not rely on the land for their day-to-day existence.

The Hon. Richard Jones: We do.

The Hon. RICK COLLESS: You do not rely on the land for your day-to-day income.

The Hon. Richard Jones: I rely on the land, because I eat.

The Hon. RICK COLLESS: You do not rely on the land for your day-to-day income. The vast majority of people on this earth who look after the resources on a day-to-day basis rely on those resources for their day-to-day income. It is their livelihood. It is what they do for a living. They are not about to suddenly rape those resources into submission. When European farmers first came to Australia they brought with them European farming practices. My ancestors came to this land and they settled some of these properties under various arrangements. Many of them were granted soldiers' settlement leases following the various wars. A condition of those soldiers' settlement leases was that they had to clear the land, otherwise they forfeited it. So what were those people doing that was so wrong? They were meeting the conditions under which they were given that land as a reward for going overseas and fighting for Australia. It was a condition that those people cleared that land. Here we are, three-quarters of a century later, saying that these are the people who have been raping our resources.

It is simply a misnomer to suggest that those people did that knowing that they were deliberately doing damage to the land. It is easy to look back in hindsight, with the knowledge that we now have about land management, and say they did the wrong thing. I, for one, am the first to admit that. My family was part of that, but I make no apology for it because at that time my family was doing the right thing. They were doing the accepted thing. They were doing the thing that was sponsored by government. They were doing the thing that they were expected to do in the interests of this country. I make no apology for it. When I started my working career, I started work as a conservationist. I worked for the Soil Conservation Service for 26 years. I built hundreds of kilometres of contour banks to stop soil erosion. I trained farmers in better farming techniques to stop soil erosion. I believe that the vast majority of farmers have a deep understanding and great knowledge of the way the land works and the processes that occur on the land as they try to eke out a living from it.

Thirty years ago when I started work there was still a fair bit of what we can now loosely call the redneck image—if it grew, people wanted to cut it down; if it moved, they wanted to shoot it. But that was 30 years ago. The farming communities of today have a much greater understanding of the value of natural resources and the importance of managing those resources on a sustainable basis. Things are changing, and things are changing quickly—or they were until about 1995. I wish to share with the House an experience I had in the early 1990s when I was a soil conservationist in the Inverell district. I had a vegetation management program going, without the approval of the department—something I saw as a local need and I was pursuing it on a local basis. My philosophy at that time was that we needed to be careful about land clearing, and we needed to be sure that when we did clear some land we did it in a safe and sustainable manner.

I had an advisory program. I did a few radio interviews and a couple of television interviews, and I put a few articles in the newspaper about the need for better vegetation management. And do you know what happened? Surprise, surprise, I got a lot of response. The farmers in the district wanted to know this information, so they came to me as their advisory officer. I would sit down with them, we would work through some clearing plans, look at the vegetation and soil types, look at the topography and all the matters that were relevant, and we would map out a plan for them. I would say, "Because of all these factors, you should clear this area but leave those areas," and they responded to that. Then, in about 1996 or 1997, an instrument called State environmental planning policy [SEPP] 46 was suddenly announced in the Sydney Morning Herald. After SEPP 46 was announced, all those requests I was getting for advice on vegetation clearing stopped overnight.

Do honourable members know why the requests stopped? They stopped because the farmers were scared witless that, if they talked to me, I would prosecute them. So they just pushed the lot over anyway. That was the wrong result. The legislative process had the reverse effect to that which the Government intended. That is the danger with overregulating our natural resources. We are better off working with people and encouraging them rather than standing over them with a big stick and saying, "You do that or do not do that or we will belt you around the ears with a $1.1 million fine". I have plenty of letters in my briefcase from farmers who have been threatened by the Department of Land and Water Conservation with a $1.1 million fine. Guess what farmers do when they receive such letters? They laugh at them. How many farmers do we think have $1.1 million?

The vast majority of those in the farming industry do not have two bob to rub together at present: they are asset rich and cash poor. They do not have $1.1 million. That sum is so preposterous that the people who receive those letters laugh and say, "Well, let them come and get it if they can". They know that $1.1 million could not be collected even if the charges were proven in a court of law—and that has never happened. How do we put natural resource management issues into perspective? I believe we should sit down with all the stakeholders—all the players in the game—and formulate carefully our vision for the future. I put it to the House that my vision for our natural resources is not terribly different from that of the Hon. Ian Cohen. He and I have had this discussion and I think he agrees with me.

The Hon. Ian Cohen: Are you verballing me again?

The Hon. RICK COLLESS: No, I am just saying that I do not think the honourable member disagrees. We both want to see sustainable natural resource management. We want our natural resources to be looked after. That vision must be enunciated. We should not have a vision for the next five, 10 or 20 years; we should have a vision for the next 100, 200 or 500 years. I want to make sure that my kids, their kids and their kids' kids can enjoy the quality of life to which I aspire. We must consider the quality of life issue. What is quality of life about? It is about the sorts of things that we want to enjoy and that we want our families and our communities to enjoy. It is pretty simple stuff.

I bet that if everyone who is in the Chamber at present wrote down their 10 quality of life goals, they would not be very different because, fundamentally, we all want the same sorts of things. I will share my goals with the House. I want to have a nice home, I want to be able to afford to take a holiday each year, I want to be able to educate my kids and I want good health care—they are quality of life goals to which every individual aspires.

The Hon. Jennifer Gardiner: And you want to win the next election.

The Hon. RICK COLLESS: Yes, that is a real quality of life goal.

The Hon. Peter Primrose: We do have a lot in common.

The Hon. RICK COLLESS: We do. If we want to enjoy our quality of life for the next 50, 100, 200 or 500 years we must be able to create enough wealth to support it. We must generate enough income to send our kids to school, to buy them nice clothes so that they are not heckled by their peers, to keep a roof over our heads, to buy food and so on. That costs money. But real wealth is not simply dollars and cents; it is something that money cannot buy. Look around the Chamber. I challenge anyone in this Chamber to point out one thing that is not derived from either mining or primary production. Look at the beautiful timber, the steel in the microphones and the calcite in the statues. Where does it come from?

The Hon. Duncan Gay: What about Henry's wig?

The Hon. RICK COLLESS: That is debatable. Where does the paper in the books and the leather on the chairs and benches come from? All these things are derived from either mining or primary production—agriculture and forestry. Mining and agriculture are the wealth-creating industries upon which our whole society depends for its very survival. We must ensure that our environment is sufficiently looked after and managed so that we can continue to produce beautiful timber, leather, the clothes we wear and the sort of food we ate for dinner tonight. The environment provides the resources upon which our very existence relies. We must enunciate how we want our environment to look in 100 years. I will share with honourable members my personal vision for the environment in 100 years, when my grand-kids are—God help them—as old as I am now.

The Hon. Duncan Gay: In 100 years they will be a bit older than you are now.

The Hon. RICK COLLESS: I did say my grand-kids. We must have healthy soil—that is the foundation of all our production. Our soil must be nutritionally balanced and high in organic matter and in soil-borne biodiversity. Biodiversity and nutritional balance make our soils truly productive. We also want 100 per cent groundcover as protection against erosion. We want biodiversity of our flora and fauna. Our flora should be based on deep-rooted perennial plants balanced with productive annuals that can utilise quickly any available moisture, which often comes in small licks. We must provide a safe environment for our special native animal species as well as for domesticated livestock. Our water resources must be healthy and vibrant. We need a healthy river system, with clean water, sustained flows in even the driest of years and a high level of aquatic and avian biodiversity.

How is that achieved? The argument is not so much about how it is achieved, but about creating goals that we want to work towards. If honourable members got their minds around that concept, I have no doubt that we could move towards those goals with a lot less conflict than we have had in this place. The bottom line is that we must manage and maintain all aspects of our environment in a condition that continues to create the wealth—the leather, timber, wool, cotton, silk, food and calcite or whatever else we need to enjoy our quality of life. I have read several times in this House an excerpt from a book that has a great deal of merit. I have given a copy of that book to the Hon. Ian Cohen. The book from which I quoted, which is entitled Holistic Management: A New Decision Making Framework, was written by Allan Savory, who started work as a national park ranger in Zimbabwe about 50 years ago. He states in chapter 5:

In my university training I learned, like all scientists of that era, that large animals such as domestic cattle could damage land. Only keeping numbers low and scattering stock widely would prevent the destructive trampling and intense grazing one could expect from livestock.

Once I left university and went into the field as a biologist, my observations led me to question that dogma. I now defend the exact opposite conclusion. Relatively high numbers of heavy, herding animals, concentrated and moving as they once did naturally in the presence of predators, support the health of the very lands we thought they destroyed. This revelation came slowly and only after experience in a large variety of situations, because herding animals, like others, have more than one behaviour pattern, and the effects on land are often delayed, subtle, and cumulative.

In the mid-1960s Zimbabwe erupted in civil war and I was given the task of training and commanding a tracker combat unit. Over the next few years I spent thousands of hours tracking people over all sorts of country, day after day. This discipline greatly sharpened my observational skills and also taught me much about the land, as although I was hunting humans, my thoughts were constantly on the state of the lands over which we were fighting. I doubt many scientists every had such an opportunity for learning. I tracked people over game areas, tribal areas, commercial farms and ranches, and over all different soil and vegetation types in all rainfalls. Often I covered many different areas in a single day as I flew by helicopter from one trouble spot to the next. Everywhere I had to inspect plants and soils for the faintest sign of disturbance by people trying to leave no hint on their passage.

Gradually I realised that vast difference distinguished land where wildlife herded naturally, where people herded domestic stock, and where stock was fenced in by people and not herded at all. And compared to areas without any large animals, such as tsetse fly areas in which all large game had been exterminated, the differences were startling indeed. Most obvious was the fact that where animals were present, plants were green and growing.

Allan Savory continues:

In areas without animals they were often grey and dying—even in the growing season—unless they had been burned, in which case the soil between plants was bare and eroding and tracking was easy. When I compared areas heavily disturbed by animals, where soil was churned up, plants flattened, and tracking was difficult, it became clear that the degree of disturbance had a proportionately positive impact on the health of plants and soils and thus the whole community.

Savory's work is being adopted by farming communities all around the world—in all States of Australia, the United States of America, New Zealand and South America. It is also being adopted by government agencies in the United States that had previously been locking up land for conservation purposes—as Australia is now doing. Savory's work is being adopted by those agencies concerned about fire risk, in particular, in locked up areas. I refer in particular to areas in California which have been ravaged by fires in recent years, just as Australia has recently been ravaged by fires.

This Government introduced a bill that will ensure that more than 145,000 hectares of land up and down the east coast of New South Wales are not managed. As a result of the provisions in this bill a further 300,000 hectares of land will not be grazed or logged. What impact will that have on the coastal communities that are living in areas where this land will be locked up? What will happen to the quality of life of people such as the Freeman family and Leith Towns and his family in the Clarence area? What emotional impact will it have on them and on their day-to-day operations? I received a letter from the Freeman family, which states:

Notices will soon be sent to 154 farming families on the North Coast telling them to evict their cattle from Forest Management Zones within Occupation Permits [OPs], as another 145,000 hectares are added to the National Park Estate …

More than half the 154 families are from the Clarence area, the impact will not only affect these families but the whole community, some families will lose two or more Permit areas.

The loss or displacement of around 15,000 head of cattle, the loss of 94,000 hectares of rateable land for Pristine Waters Shire Council, the loss of 110,000 hectares of rateable land for the Grafton Rural Lands Protection board, plus the social and economic turmoil on top of a severe drought and bushfires, makes this a cruel farce.

Other problems and associated costs will be insurmountable, such as defining boundaries, the practicality and cost of fencing and impossible access issues. The question of continuing viability for families with the loss of winter grazing country for breeders and the pressure of having to deal with National Parks, when stock enter their estate, the letters and the threats of prosecution.

Some OPs or Annual Leases have a long history, some dating back to the mid 1800s and these areas formed an important part of the whole property management. Lessees must have done something right with management over the last 150 years as these areas now meet all conservation criteria.

Such letters demonstrate the tremendous emotional impact that this legislation will have on 154 farming families in the Clarence Valley who have been on their land for three to four generations. This legislation will have a severe economic and social impact on those families. Since 1995, 45,000 head of cattle have been removed from those areas. The loss of another 15,000 head of cattle will mean that a total of 60,000 have been taken out of the system. The wealth created by those cattle at the farm gate is approximately $8 million to $12 million at early 2002 pre-drought prices, which are somewhat depressed at the moment because of the drought. In Grafton, the long-term impact of that amount of $8 million to $12 million would be of the order of $50 million annually. Even the most optimistic supporter of the tourism industry would not suggest that tourism could generate anything like that amount of money.

Minister Refshauge said in his second reading speech in another place that timber values would not be affected by the outcomes enshrined in this bill. He emphasised that State forests transferred to national parks and other reserves were confined to forest management zones [FMZs] 1, 2 and 3A. However, I understand that forest management zones 4, 7 and 8 will also be transferred, and that those zones are now producing timber. So what did the Minister mean when he said that? Did he mislead the House? It would appear that he did, given that FMZs 4, 7 and 8 are included for reservation while he said that only FMZs 1, 2 and 3A wou