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LEGISLATIVE COUNCIL

VIEWS: 29 PAGES: 89

									                                                                                                                                    18641



                                     LEGISLATIVE COUNCIL
                                                      Tuesday 18 October 2005
                                                              ______

            The President (The Hon. Dr Meredith Burgmann) took the chair at 2.30 p.m.

            The Clerk of the Parliaments offered the Prayers.

            The PRESIDENT: I acknowledge that we are meeting on Eora land.

                                      ADMINISTRATION OF THE GOVERNMENT

            The PRESIDENT: I report the receipt of the following message from Her Excellency the Governor:

            GOVERNOR MARIE BASHIR                                                                                OFFICE OF THE GOVERNOR
                                                                                                                             SYDNEY 2000

            Professor Marie Bashir, Governor of New South Wales has the honour to inform the Legislative Council that she reassumed the
            administration of the Government of the State on 16 October 2005.

                                            LEGISLATIVE COUNCIL VACANCY

                                                Election of Penelope Gail Sharpe

        The PRESIDENT: At a joint sitting held on 11 October 2005 Penelope Gail Sharpe was elected to fill
the vacancy in the Legislative Council caused by the resignation of the Hon. Carmel Tebbutt.

                                      OATH OR AFFIRMATION OF ALLEGIANCE

            The Hon. Penelope Gail Sharpe took and subscribed the oath or affirmation of allegiance and signed
the roll.

       ROADS AND TRAFFIC AUTHORITY AND CROSS CITY MOTORWAY CONSORTIUM
                             CONTRACT DOCUMENTS

                                                Production of Documents: Order

            Motion by Ms Lee Rhiannon agreed to:

            That, under Standing Order 52, there be laid upon the table of the House within 14 days of the date of the passing of this
            resolution, documents, excluding any photographs, technical drawings, maps, plans, designs or specifications, in the possession,
            custody or control of the Premier, the Premier’s Department, the Cabinet Office, NSW Treasury, the Minister for Roads or the
            Roads and Traffic Authority (RTA), created since the resolution of the House of 24 June 2003, and not previously provided,
            relating to:

            (a)   the contract between the RTA and the Cross City Motorway Consortium (CCM), signed in December 2002, to finance,
                  construct, operate and maintain the Cross City Tunnel,

            (b)   the financing of the project including the successful tender by CCM between the RTA and CCM,

            (c)   the RTA consent deed, the project deed and the facility agreement, and

            (d)   any document which records or refers to the production of documents as a result of this order of the House.

                                                              PETITIONS

                                 Brigalow Belt South Bioregion and Nandewar Bioregion

        Petition opposing the removal of cypress pine and hardwood forests from State Forests management
and the degradation of communities within the Brigalow Belt South and Nandewar bioregions, received from
the Hon. Rick Colless.
18642                                             LEGISLATIVE COUNCIL                                            18 October 2005


                                     Desalination and Sustainable Water Supply

         Petition opposing construction of a desalination plant in Sydney, and requesting a sustainable water
supply through harvesting and recycling of water, and water efficiency, received from Ms Sylvia Hale.

                                                    Freedom of Religion

         Petition praying that the House reject legislative proposals that would detract from the exercise of
freedom of religion, and retain the existing exemptions applying to religious bodies in the Anti-Discrimination
Act, received from Reverend the Hon. Dr Gordon Moyes.

                                             Anti-Discrimination Legislation

       Petition requesting support for the Anti-Discrimination Amendment (Equality in Education and
Employment) Bill and the Anti-Discrimination Amendment (Sexuality and Gender Diversity) Bill, received
from Ms Lee Rhiannon.

                                                    Freedom of Religion

         Petition praying that the House reject legislative proposals that would detract from the exercise of
freedom of religion and the employment of persons whose beliefs and lifestyle are consistent with religious
doctrine and values, and retain the existing exemptions applying to religious bodies in the Anti-Discrimination
Act, received from Reverend the Hon. Dr Gordon Moyes.

                                                       Public Housing

         Petition requesting action to protect public housing tenants and to ensure that public housing remains
viable for low-income households, received from Ms Sylvia Hale.

                                             Same-sex Marriage Legislation

        Petition opposing same-sex marriage legislation, received from the Hon. Rick Colless.

                                      LEGISLATION REVIEW COMMITTEE

                                                              Chair

         The PRESIDENT: I inform the House that on 18 October 2005 Mr Allan Shearan, MP, was elected as
Chair of the Legislation Review Committee in place of the Hon. Peter Primrose.

                             BUDGET ESTIMATES QUESTIONS UPON NOTICE

         The PRESIDENT: Order! I inform the House that, due to a technical error encountered with the new
Intranet-based system of producing Questions and Answers, a series of budget estimates questions were
inadvertently excluded from the paper dated Tuesday 11 October 2005. These questions will be included in
today's paper, with responses due 35 days from today.

                                              BUSINESS OF THE HOUSE

                                    Suspension of Standing and Sessional Orders

        Motion by Ms Lee Rhiannon agreed to:
        That standing and sessional orders be suspended to allow a motion to be moved forthwith that Private Members' Business item
        No. 183 outside the Order of Precedence, regarding privileged documents relating to the contract between the Roads and Traffic
        Authority and the Cross City Motorway Consortium, be called on forthwith.

                                                      Order of Business
        Motion by Ms Lee Rhiannon agreed to:
        That Private Members' Business item No. 183 outside the Order of Precedence, be called on forthwith.
18 October 2005                                    LEGISLATIVE COUNCIL                                                             18643


      ROADS AND TRAFFIC AUTHORITY AND CROSS CITY MOTORWAY CONSORTIUM
                            CONTRACT DOCUMENTS

                  Production of Documents: Further Report of Independent Legal Arbiter

        Ms LEE RHIANNON [2.47 p.m.]: I seek the leave of the House to amend the motion of which I have
given notice by omitting all words after "That" at the commencement and inserting instead:

        "this House notes the findings of the report of Independent Legal Arbiter Sir Laurence Street dated 4 September 2003 on the
        disputed claim of privileged on documents relating to the contract between the RTA and the Cross City Motorway Consortium.

        2.      That, in view of the current public interest in matters concerning the cross-city tunnel, this House authorises the Clerk to
                release the privileged documents to Independent Legal Arbiter Sir Laurence Street to reassess and report on the claims
                of privilege in relation to all of the privileged documents.

        3.      That, on receipt of the report of the Independent Legal Arbiter by the Clerk, the Clerk is authorised to publish the report
                of the Independent Legal Arbiter and the documents considered not to be privileged.

        4.      That the report of the arbiter and the documents not privileged be laid on the table of the House by the Clerk at the next
                sitting of the House."

        Leave granted.

        Ms LEE RHIANNON [2.48 p.m.]: Accordingly, by leave, I move:
        1.      That this House notes the findings of the report of Independent Legal Arbiter Sir Laurence Street dated 4 September
                2003 on the disputed claim of privileged on documents relating to the contract between the RTA and the Cross City
                Motorway Consortium.

        2.      That, in view of the current public interest in matters concerning the cross-city tunnel, this House authorises the Clerk to
                release the privileged documents to Independent Legal Arbiter Sir Laurence Street to reassess and report on the claims
                of privilege in relation to all of the privileged documents.

        3.      That, on receipt of the report of the Independent Legal Arbiter by the Clerk, the Clerk is authorised to publish the report
                of the Independent Legal Arbiter and the documents considered not to be privileged.

        4.      That the report of the arbiter and the documents not privileged be laid on the table of the House by the Clerk at the next
                sitting of the House.

          Reverend the Hon. FRED NILE [2.49 p.m.]: This matter does not need lengthy debate but I wish to
indicate our support for the proposal that Sir Laurence Street re-examine the privileged documents and report to
the House. It is very important that we maintain the role of the independent arbiter in dealing with privileged
documents. Sir Laurence Street briefed us on the matter this morning and indicated his willingness to co-operate
in this action.

         The Hon. Dr ARTHUR CHESTERFIELD-EVANS [2.50 p.m.]: I wish to place on record that I
would have supported the original motion but I believe the position of the legal arbiter has effectively been an
obstruction to openness in government and that this mechanism has meant that there has not been more
meaningful legislation or more meaningful pressure. While I note that the legal arbiter wishes to reassess the
situation, and may indeed come up with better conclusions, I believe this process is flawed and that we need an
open government system in New South Wales.

        Motion agreed to.

                                               BUSINESS OF THE HOUSE

                                                  Postponement of Business

        Government Business Orders of the Day Nos 1 to 5 postponed on motion by the Hon. Tony Kelly.

                                      LEGISLATION REVIEW COMMITTEE

                                                               Report

        The Hon. Peter Primrose, on behalf of the Chair, tabled report entitled "Legislation Review Digest
No. 12 of 2005", dated 18 October 2005, together with minute extracts for digests Nos 10 and 11 of 2005.

        Report ordered to be printed.
18644                                               LEGISLATIVE COUNCIL                                              18 October 2005


                                               DISTINGUISHED VISITORS

        The PRESIDENT: I welcome to the President's gallery a delegation from the Guangdong People's
Congress, China, led by Professor Wang Ning-Sheng.

                    CONFISCATION OF PROCEEDS OF CRIME AMENDMENT BILL

                                                         Second Reading

         The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Commerce, Minister for
Industrial Relations, Minister for Ageing, Minister for Disability Services, Assistant Treasurer, and Vice-
President of the Executive Council) [2.52 p.m.]: I move:

        That this bill be now read a second time.

As the Minister's remarks are lengthy and have previously been made in the other place, I seek leave to
incorporate them in Hansard.

        Leave granted.

        This Bill contains important amendments to the Confiscation of Proceeds of Crime Act 1989, the Civil Liability Act 2002, the
        Crimes Act 1900 and the Forfeiture Act 1995.

        These amendments will:

        •     Improve the processes involved in confiscating criminal assets;
        •     Broaden the scope of existing laws;
        •     Make prosecutions easier;
        •     Create new offences of money laundering;
        •     Prevent mentally ill offenders from misusing civil damages paid to them; and
        •     Prevent mentally ill murderers from profiting from their crime by applying the forfeiture rule.

        The amendments to the Confiscation of Proceeds of Crime Act implement recommendations arising from a comprehensive
        review of criminal asset confiscation laws in New South Wales.

        This review was jointly conducted by the Attorney General's Department and the Ministry for Police. The review was informed
        by a group of experts drawn from:

        •     the New South Wales Police;
        •     the Office of the Director for Public Prosecutions;
        •     the New South Wales Crime Commission;
        •     the Legal Aid Commission;
        •     the Public Trust Office;
        •     the New South Wales Law Society;
        •     the New South Wales Bar Association; and
        •     the Australian Crime Commission.

        The amendments to the money laundering provisions will implement an agreement reached by the Council of Australian
        Governments at its Summit on Terrorism and Multi-Jurisdictional Crime to reform money laundering laws.

        These reforms will strengthen New South Wales criminal asset confiscation laws, target terrorist fund raising and other money
        laundering schemes, and ensure that such laws are an effective deterrent to profit-motivated crime.

        The Government is pleased that these reforms will benefit victims of crime. All of the proceeds of crime derived under the
        Confiscation of Proceeds of Crime Act are channelled into the Victim's Compensation Fund which is used to compensate victims
        of crime for the harm they have suffered.

        I do not intend to canvass all of the provisions in the Bill. Many are self-explanatory and I intend to outline only the more major
        and significant reforms.

        Schedule 1 amends the Confiscation of Proceeds of Crime Act 1989

        The first major amendment under Item [25] is to revamp the existing provisions for drug proceeds orders.

        A drug proceeds order is made by the court when a person is convicted of a drug trafficking offence to recover any assets
        obtained as a result of drug trafficking.


        In such cases, a sentencing court must assess the value of all benefits the defendant has derived from drug trafficking at any time
        and order that the defendant pay that amount.
18 October 2005                                     LEGISLATIVE COUNCIL                                                             18645


       The drug proceeds order provisions of the original Act introduced by the former Coalition Government have yet to be
       proclaimed, primarily due to the practical implications of commencing the provisions in their current form. They are
       cumbersome, unwieldy and differ in practical effect from pecuniary penalty orders which are available for non drug crimes.

       In practice, assets of drug traffickers have been seized under the Criminal Assets Recovery Act, which is administered by the
       Crime Commission. The amendments set down in this Bill will make it easier for the prosecution to seek those assets earlier and
       in a more comprehensive fashion.

       The Bill addresses the concerns about the existing drug proceeds orders provisions by aligning them more closely with pecuniary
       penalty orders, particularly in terms of procedure and assessment.

       As part of a more focused approach, the definition of "drug trafficking offence" has also been amended by Item [6].

       It now includes the offence of possession of precursors for the manufacture or production of prohibited drugs, and excludes
       offences involving more than a small quantity of prohibited drugs. The offence of ongoing supply of prohibited drugs is still
       included, irrespective of the quantity of the drugs supplied. This reflects the objective of the Act to target profit-motivated crime
       rather than small time users.

       The key changes to the drug proceeds orders provisions are as follows.

       First, under the new section 13(2) introduced by Item [19], the procedure for applying for a drug proceeds orders will be aligned
       with those for pecuniary penalty orders sought in non drug cases. That is, drug proceeds orders will be assessed on the
       application of the prosecution, instead of automatically on the conviction and sentencing of a person for a relevant drug offence.
       This will ensure that such orders are only sought in appropriate cases.

       Second, the Bill removes the requirement in current section 29(1) for a drug proceeds order to be the amount that may be realised
       at the time the order is made. A drug proceeds order will therefore be the value of any benefits derived in connection with drug
       trafficking at any time. This will assist in obtaining the value of property or goods that have been sold or otherwise disposed of in
       the course of the criminal conduct, rather than simply the amount available at the time of the order.

       In other words, drug traffickers will have to pay the full amount derived from their criminal activity.

       Third, the requirement in the current section 29(2) for a court to take into account a drug proceeds order before imposing a fine is
       removed.

       Fourth, the new section 30 sets out the matters to which the court may have regard in assessing the benefits derived in connection
       with drug trafficking. These matters are of the same kind that are currently taken into account for pecuniary penalty orders.

       Fifth, the new section 31A contains provisions of general application relating to evidence that may be given in drug proceeds
       order proceedings as to the market value of substances involved in drug trafficking offences.

       Finally, the new section 32 contains provisions similar to those for pecuniary penalty orders, which set out the circumstances
       when a court may treat property subject to the effective control of a defendant as property of a defendant.

       The definition of "tainted property" has been broadened to include property substantially derived or realised as a result of the
       commission of a serious offence, or property substantially derived or realised from property used in the commission of a serious
       offence. This means that where a defendant has traded in a tainted $30,000 Toyota Camry for a $40,000 Subaru WRX, the WRX
       is also considered tainted property and can be forfeited.

       The Bill also introduces the term "value of property" at Item [15] which provides a method for determining the value of property
       other than cash.

       Item [33] inserts a new Division 1A into the Act concerning Freezing Notices.


       The bill introduces a new and more efficient system involving the use of freezing notices for the seizure, restraint, management
       and disposal of tainted property. This will increase the ability of New South Wales Police and the Office of the Director of Public
       Prosecutions to pursue confiscation action under the Act. The system will be made more efficient by progressing the criminal
       prosecution and confiscation action together.

       Criminal asset confiscation should be viewed as an important and integral part of investigating and prosecuting serious offences.
       People who commit serious offences need to know that any profit they make from committing those offences will be stripped
       from them when they are convicted. Under the new section 42B(1) of the Act, an authorised officer may apply to an authorised
       justice for a freezing notice over specified property if a defendant has been, or is about to be charged with a serious offence or
       has been convicted of a serious offence. When making the application, the authorised officer must have reasonable grounds to
       believe that: the defendant committed the offence, if the defendant has yet to be convicted; and the property is tainted property or
       the proceeds of drug trafficking. Under section 42B(2) a freezing notice may be sought over property effectively controlled by
       the defendant but held by another person. An application for a freezing notice must be in writing. Section 42E makes provision
       for telephone freezing notices to be issued in urgent circumstances.

       An authorised justice may issue a freezing notice under section 42C if they are satisfied that: (a) the defendant has been or is
       likely to be charged with the offence within 48 hours or has already been convicted; and (b) there are reasonable grounds for the
       applicant's belief as to the matters set out in the applicant's statement. Section 42D provides that a freezing notice specify how the
       property is to be dealt with and who will hold the property, pending the confirmation of the notice by a court. Under section 42F,
       notice of the issuing of a freezing notice must be given to the defendant, any affected property owner and any other person
18646                                                LEGISLATIVE COUNCIL                                                 18 October 2005


        subject to the notice. A court may either confirm or set aside the freezing notice. Section 42L sets out the matters a court must be
        satisfied of before confirming a freezing notice. The hearing to confirm a freezing notice will generally coincide with the first
        date for committal or trial proceedings for the offence on which the notice is based. Under section 42J, the court may require the
        authorised officer to notify any person with an interest in the property of the application, including third parties, to confirm the
        freezing notice. Such persons will be entitled to appear and adduce evidence at the hearing. If a court confirms a freezing notice it
        must make orders for the management of the property under section 42M. Section 42M (3) sets out the matters the court should
        have regard to in determining what sort of property management orders it should make. One of the things the court must take into
        account at the property management hearing is any hardship to the offender or to any third parties, and the wider concept of
        family and kinship ties when considering hardship to Aboriginal offenders.

        In most cases, if it is appropriate, the court will order the Commissioner of Police to retain or take control of the property, dispose
        of it, and retain any proceeds until they are payable under the Act to another person or the State. If it is not appropriate for the
        property to be disposed of, the Court may instead make other orders for the management of the property. For example, that the
        property remain with the defendant subject to certain conditions, or that the Commissioner of Police take control of the property
        and hold it until any confiscation hearing. Provision is made in sections 42K and 42U for appeals against freezing notices issued
        by authorised justices, and appeals against a refusal to confirm a freezing notice. Section 42V enables confirmed freezing notices
        to be set aside or varied. It will be an offence under section 42O to knowingly contravene a freezing notice and carries a
        maximum penalty of two years imprisonment. Section 42P sets out the circumstances when a freezing notice will cease to be in
        force.

        Under section 42R, a freezing notice may be discharged by payment to the State of an amount equal to the value of property
        subject to a freezing notice. Pursuant to section 42S, if a freezing notices ceases to be in force and the property is not subject to
        any other order under the Act, the person lawfully entitled to the property may apply to the Attorney General for its return, or for
        the payment of an amount equal to the value of the property plus interest. The Attorney General must, if satisfied that the person
        is lawfully entitled to the property, return the property or pay the amount required no later than 6 months after receiving the
        application. The bill also amends s87 to increase the Local Court's monetary jurisdiction under the Act from $10,000 to the limit
        that would apply when the Court exercises its general civil jurisdiction which is currently $60,000. Finally, the bill introduces the
        term "interstate crime related property declaration" and changes to the existing definitions of "interstate forfeiture order",
        "interstate pecuniary penalty order" and "interstate restraining order" to ensure New South Wales can recognise and enforce all
        relevant interstate confiscation instruments.

        I now turn to schedule 2 to the bill which amends the Civil Liability Act 2002. In 2003, the Civil Liability Act was
        amended to limit the damages payable to people who are injured as a result of engaging in criminal
        conduct. Damages payable to a person who was mentally ill at the time of engaging in criminal conduct are limited to damages
        other than damages for non-economic loss and loss of earnings. In other words, such people can still recover damages for medical
        and care costs.

        Schedule 2 of the Confiscation of Proceeds of Crime Amendment Bill will further amend the Civil Liability Act to provide for
        the supervision of damages awarded to mentally ill people in these circumstances. Under section 54D, a court that awards such
        damages must make an order directing the Public Trustee to take control of the amount of damages if it is in the best interests of
        the mentally ill person. The Public Trustee will hold the amount in trust for the person, and must ensure that the amount is only
        used to cover the medical and care costs of the person. A damages supervision order is intended to ensure that a mentally ill
        person does not simply dissipate damages awarded to cover medical and care costs. A damages supervision order may: regulate
        the manner in which the Public Trustee exercises his or her functions under the order; specify the purposes for which amounts
        may be disbursed; specify the obligations of the Public Trustee and the person awarded the damages; and make any other
        provision the court considers appropriate.

        A damages supervision order will remain in force until it is revoked by an appropriate Court or until the death of the person
        awarded the damages.

        Schedule 3 to the bill amends the Crimes Act 1900 to create new money laundering offences. As all honourable members
        would know, money laundering is the process by which cash and other assets derived from criminal activity are introduced into
        an economy to make them appear to be legitimately obtained. Through money laundering, criminals distance themselves from the
        criminal activity that generates their wealth, the making it harder to prosecute them and confiscate their ill-gotten gains.

        Money laundering is a significant global problem. The International Monetary Fund has estimated that money laundering
        accounts for between 2 and 5 percent of global gross domestic product. Since the terrorist attacks of 11 September 2001, there
        has been an increased focus by governments around the world on strengthening their anti-money laundering regimes and on
        targeting terrorist financing. Like the amendments to the New South Wales asset confiscation regime, the amendments to the
        New South Wales anti-money laundering regime are part of this Government's commitment to ensuring that those who engage in
        criminal activity as a business can effectively be dealt with under the law and do not profit from that activity.

        In addition to being part of a national initiative to address money laundering and organised criminal networks, the amendments
        will ensure that the New South Wales anti-money laundering regime is consistent with international standards set by the OECD's
        Financial Action Task Force on Money Laundering. The New South Wales money laundering offence is currently found in the
        Confiscation of Proceeds of Crime Act 1989. The bill will re-enact an improved form of the existing money laundering offence in
        the Crimes Act 1900, plus create additional money laundering offences. This will give New South Wales strong, comprehensive
        money laundering laws. It is appropriate for money laundering offences to be located in the Crimes Act 1900, given that they are
        serious offences.

        Section 193B will create three offences for dealing with "proceeds of crime"—that is, any property, including money, that is
        derived from the commission of a serious offence. "Dealing with" includes receiving, possessing, concealing or disposing of
        property. First, it will be an offence for a person to deal with proceeds of crime knowing that it is proceeds of crime and intending
        to conceal that it is proceeds of crime. This offence will carry a maximum penalty of 20 years imprisonment. Second, it will be an
        offence for a person to deal with proceeds of crime knowing that it is proceeds of crime. This offence will carry a maximum
18 October 2005                                      LEGISLATIVE COUNCIL                                                             18647


         penalty of 15 years imprisonment. Third, it will be an offence for a person to deal with proceeds of crime being reckless as to
         whether it is proceeds of crime. This offence will carry a maximum penalty of 10 years imprisonment.

         Section 193C will create a summary offence for dealing with property where there are reasonable grounds to suspect the property
         is proceeds of crime. This offence will carry a maximum penalty of 50 penalty units and/or 2 years imprisonment. It will be a
         defence to a prosecution for this offence if the defendant satisfies the court that the defendant had no reasonable grounds for
         suspecting that the property was the proceeds of crime. Section 193D will also create two offences for dealing with property—
         being money or other valuables—that subsequently becomes an instrument of crime. First, it will be an offence for a person to
         deal with property intending that the property will become an instrument of crime, and the property subsequently becomes an
         instrument of crime. This offence will carry a maximum penalty of 15 years imprisonment. Second, it will be an offence for a
         person to deal with property being reckless as to whether the property will become an instrument of crime, and the property
         subsequently becomes an instrument of crime. This offence will carry a maximum penalty of 10 years imprisonment.

         Prosecutions for the "instruments of crime" offences will require the consent of the Director of Public Prosecutions. Section 193E
         makes provisions for alternative verdicts to be reached on certain money laundering offences.

                                                                                             The common law
         Finally, I turn to Schedule 4 to the bill, which contains amendments to the Forfeiture Act 1995.
         forfeiture rule operates to prevent killers from benefiting financially from their victim's estate. The
         Forfeiture Act 1995 leaves the common law rule intact but allows the Court to modify the effect of the rule if justice demands it.
         The forfeiture rule currently cannot be applied to people found not guilty of a killing by reason of mental illness. The bill amends
         the Forfeiture Act 1995 to enable the forfeiture rule to be applied to people found not guilty of murder by reason of mental illness
         where it would not be just for them to inherit from their victim's estate. Section 11 provides that where an offender has been
         found not guilty of murder by reason of mental illness, any interested person may apply to the Supreme Court for a forfeiture
         application order to enable the forfeiture rule to apply as if the offender had been found guilty of murder. The court may make an
         order applying the forfeiture rule if it is satisfied that justice requires the rule to be applied. In determining whether justice
         requires the rule to be applied, the court is to have regard to: the conduct of the offender; the conduct of the deceased person; the
         effect of the application of the rule on the offender or any other person; and any other matter the Court considers relevant.
         Section 12 provides that a forfeiture application order must be sought within 6 months after the day on which it is determined that
         the offender was not guilty of murder, although the court may grant leave for a late application.

         Section 13 makes provision for the Court to accept applications for the revocation of a forfeiture application order which has
         already been made. Honourable members, the Confiscation of Proceeds of Crime Amendment Bill 2005 contains important
         reforms. The reforms will strengthen criminal asset confiscation and money laundering laws in New South Wales, and as such
         has the support of the key New South Wales law enforcement and prosecuting authorities. The bill also contains important
         reforms relating to mentally ill people who commit serious offences. I commend the bill to the House.

          The Hon. DAVID CLARKE [2.52 p.m.]: The Confiscation of Proceeds of Crime Amendment Bill
arises from a review of criminal asset confiscation laws in New South Wales jointly conducted by the Attorney
General's Department and the Ministry of Police after consultation with a number of interested parties, including
the New South Wales Crime Commission, the Public Trust Office, and the New South Wales Bar Association.
The bill, which is not opposed by the Opposition, seeks to bring up to date the existing legislation relating to the
confiscation of proceeds of crime, create new offences of money laundering, and make prosecutions easier.

         It does this by amending the Confiscation of Proceeds of Crime Act 1989, the Civil Liability Act 2002,
the Crimes Act 1900 and the Forfeiture Act 1995 so as to include offences relating to trade precursors and the
ongoing supply of prohibited drugs as offences on which confiscation orders under the principal Act may be
based; limit the circumstances in which certain drug offences may be offences on which confiscation orders may
be based to offences involving more than a small quantity of prohibited plant or drug; make procedures relating
to applications for penalty orders based on drug offences consistent with those for orders based on other
offences, and also make assessments of proceeds of such offences for the purposes of drug offences consistent
with those for the purposes of other offences; provide for a new procedure for freezing and dealing with
property that is or may be tainted property in relation to a serious offence or benefits derived from a serious
offence or drug offences proceeds, being a process initiated by a notice issued by an authorised justice and
confirmed by a court dealing with the relevant offence; provide for the recognition and enforcement of
additional interstate instruments relating to confiscation of property; provide for the supervision of, and control
by, the Public Trustee of damages awarded to offenders suffering from mental illness, being damages arising out
of conduct or in circumstances that would, but for that illness, have constituted a serious offence; enact new
money laundering offences; and enable the Supreme Court to apply the forfeiture rule to persons found not
guilty of murder by reason of mental illness.

          It is to be hoped that the provisions of the bill will substantially assist in the war against terrorism by
targeting terrorist money laundering and fundraising, as well as other organised crime, including those involved
in the illegal drug trade, which is so dependent on money laundering. These are areas that the Opposition
believes should be constantly monitored. When one door is closed off to organised crime and terrorism,
inventive new doors are invariably created. Therefore the Government, law enforcement agencies and, indeed,
all of us need to be in a continual state of vigilance. The Opposition will monitor the legislation to see whether it
achieves its stated objectives.
18648                                        LEGISLATIVE COUNCIL                                   18 October 2005


         Reverend the Hon. FRED NILE [2.56 p.m.]: The Christian Democratic Party is pleased to support the
Confiscation of Proceeds of Crime Amendment Bill. This very detailed and thorough bill will be of great
assistance to the Government in its campaign against illegal drug trafficking in this State, as well as other forms
of criminal activity, included among them the funding of terrorism. The bill is the result of a comprehensive
review undertaken by a working group comprising representatives of NSW Police, the Office of the Director of
Public Prosecutions, the New South Wales Crime Commission, the Legal Aid Commission, the Public Trust
Office, the Law Society and the Bar Association. The majority of the amendments in the bill arise out of that
review.

          The amendments cover a number of important areas. They will establish a new and more efficient
system involving the use of freezing notices for the seizure, restraint, management and disposal of tainted
property, particularly property that is the result of drug trafficking. The bill also amends the operation of the Act
so that it now applies to the offence of possessing precursors for prohibited drugs but is limited to offences of
more than a small quantity of drugs. The bill requires the courts to take into account an Aboriginal offender's
family and kinship ties when considering whether any hardship is likely to arise when making forfeiture orders
or confirming freezing notices.

         In effect, the bill updates the provisions of the original bill introduced by the former Coalition
Government, particularly the drug proceeds order provisions that were included in the bill but were not
proclaimed—an action sometimes carried out by both Coalition and Labor governments. Even though a bill is
passed and subsequently becomes an Act of Parliament, various provisions of the bill are not proclaimed. The
reason given for the non-proclamation of certain provisions of the Coalition's original bill was that some of them
were difficult to implement because they were unwieldy and differed in practical effect from pecuniary penalty
orders that are available for non-drug crimes. In practice, assets of drug traffickers have been seized under the
Criminal Asset Recovery Act, which is administered by the Crime Commission. The amendments contained in
the Confiscation of Proceeds of Crime Amendment Bill will make it easier for the prosecution to seek those
assets earlier and in a more comprehensive fashion.

          The other positive aspect of this legislation is that all the proceeds of crime derived under the
Confiscation of Proceeds of Crime Act will be channelled into the Victims Compensation Fund, which is used
to compensate victims of crime for the harm they have suffered. Legislation such as this is very important.
Whether it will ultimately discourage drug traffickers, only time will tell. I believe the legislation provides a
strong deterrent to drug traffickers who may be distanced from the street dealing of drugs and believe they can
live off the earnings of that criminal activity.

         Now they will be fearful that eventually they will lose all those assets. A couple of years ago when I
visited Miami, the Acting Australian Consul in Miami took me on a tour and showed me what he called the
mansions of the drug dealers, many of them from Colombia and other countries. Even though these people are
known to be the leaders of major drug crime rings, they are living in security and enjoying the benefits of their
crimes with large mansions and all the associated trimmings, such as large yachts, cars and so on.

         I believe this legislation is very important not only because such people will be sent to gaol but also
because the Government will confiscate anything they have earned from their criminal activity and it will be
used to provide compensation for the victims of those crimes. The Christian Democratic Party is very pleased to
support this bill.

         The Hon. Dr ARTHUR CHESTERFIELD-EVANS [3.00 p.m.]: The Australian Democrats do not
support this bill. We think it is quite outrageous, and members of the International Commission of Jurists are
absolutely horrified by it. The Legislation Review Committee—whose members are hardly a bunch of radicals
but were merely put together by this Parliament to look at the civil liberties aspects of bills, amongst other
things—has written 15 pages on this bill.

          As I have said previously in this place, the Democrats are very much in favour of the concept of
restorative justice. In other words, victims of crime should be able to meaningfully interact to help them
understand why the crime happened and to show them that justice has been done in that the criminal has been
punished and has made restitution. Of course, the more repentant the perpetrator is, the better. Obviously, if the
perpetrator is arrogant and wishes to continue to commit crimes and has no sympathy for the victim, it may be
better not to expose the victim to the perpetrator. But in many cases people who commit crimes can learn from
the process. In New South Wales there is very little work towards restorative justice. Terry O'Connelly was the
originator of this concept of restorative justice within New South Wales. He received much kudos in Britain for
18 October 2005                                     LEGISLATIVE COUNCIL                                                             18649


his work, I think with the South Yorkshire police, and was awarded medals for the way he completely changed
the way those police worked, but his work has never been recognised in New South Wales.

         So the concept of restorative justice in New South Wales is lost. One cannot help but wonder if the idea
of the Government taking the proceeds of crime from the criminal and putting them into the victims fund is just
another grab for money because that would be distant from the individual and is not part of a restorative justice
system. We have been told that this issue has been discussed with the Attorney General's department, but the
Council for Civil Liberties and the International Commission of Jurists are horrified.

          The Legislation Review Digest report is substantial. Other members in their contributions have said
that this proposed legislation will discourage criminals because they will lose their loot. Again, I think that is a
fantasy. There is no evidence that if a person is going to lose his or her loot he or she will not commit a crime.
The idea of harsh punishment being a deterrent to crime is a fantasy and is not backed up by any good evidence
from an analysis of criminals. It is an assertion that is made again and again without any evidence. I think the
main thing that discourages crime is the chance—

[Interruption]

         There is no evidence for it. But I am not citing the evidence, I am repudiating it. What would deter
crime is the possibility of getting caught, and that does not relate to what happens after one is caught. That is
why increased penalties make everybody feel good and the shock jocks wax lyrical, but I do not believe there is
any benefit in increasing penalties. Australia joined what amounted to an unprovoked war against Iraq—a
country the other side of the world—and, as a consequence, now has a fear of terrorism. The idea that
confiscation of proceeds of crime could in any way affect terrorism must be one of the greatest fantasies to come
across our airwaves in this Chamber.

          To return to the Legislation Review Digest, the fact that 15 pages were written on this bill would
indicate that the committee has gone through it very thoroughly, and I congratulate it on its good work. I would
like to read the committee's considerations and highlight its problems with this bill. I apologise if this takes a
long time, but that is largely because there are so many problems with the bill. The report states:
         29.     The Committee is of the view that, except in extraordinary circumstances, it is inappropriate for an offence of strict
                 liability to be punishable by a term of imprisonment. While it is important to ensure that the Public Trustee and the
                 Commissioner can fulfil their obligations in relation to a freezing notice, it is not apparent to the Committee that this is
                 an extraordinary circumstance justifying a prison term for a person not intending to commit the offence.

         30.     The Committee has written to the Attorney General for clarification as to the need to prescribe a term of imprisonment
                 for this strict liability offence.

         31.     The Committee refers to Parliament the question as to whether providing for imprisonment for this offence trespasses
                 unduly on personal rights and liberties.

I say that it does, and if other members say that it does not, I can only disagree with them. The report continues:

         39.     The Committee notes that the right against self-incrimination (or "right to silence") is a fundamental right, which should
                 only be eroded when overwhelmingly in the public interest.

         40.     The Committee is of the view that requiring a person to give certain information about property that is the subject of a
                 freezing order is in the public interest and that abrogating the right to silence is not unwarranted.

         41.     The Committee also notes that abrogation of the right should only be to an extent necessary to achieve the public interest
                 aim and should be proportionate to that aim. For this reason, the Committee is of the view that information given under
                 compulsion should not normally be able to be used against the person in criminal or civil proceedings, directly or
                 derivatively.

         42.     The Committee notes that proposed s 51A provides that the statement cannot be used in criminal proceedings against the
                 person but provides no limit on its use in civil proceedings or derivatively in criminal proceedings.

         43.     The Committee has written to the Attorney General to seek his advice as to why there is no restriction on the use of self-
                 incriminating information in civil proceedings or its derivative use in criminal proceedings.

         44.     The Committee refers to Parliament the question of whether proposed s 51A constitutes an undue trespass on the
                 personal right against self-incriminating.

They do not get much charity here. Referring to the damages supervision order [DSO] the report states:
         57.     The Committee is of the view that it is a trespass on a person's fundamental rights:
18650                                                LEGISLATIVE COUNCIL                                              18 October 2005


                  -          to authorise the state to take over management of a person's property and affairs without compelling
                             justification and adequate safeguards of the person's rights;

                  -          to discriminate against a person on the ground of mental illness, and

                  -          to fail to provide the right to appeal against the making of a damages supervision order (DSO).

         58.    The Committee is also of the view that these rights, while not absolute, should only be displaced by compelling public
                interest justifications and only to the extent necessary to achieve the competing public interest objective.

         59.    The Committee notes the public interest in ensuring that an award of damages for non-economic loss is used for the
                purpose for which it was awarded, namely medical and related costs arising out of the injury.

         60.    The Committee also notes that a court can only make a DSO if satisfied that it is in the best interests of the person
                concerned.

         61.    The Committee has written to the Attorney General for advice as to the public interest justifications for enabling a court
                to order a DSO in respect of a person who is able to manage their own affairs and property and failing to provide for a
                right of appeal against a DSO.

         62.    The Committee refers to Parliament the question of whether proposed Division 2 of Part 7 and proposed section 54D
                unduly trespass on personal rights and liberties.

The report further states:

         76.    The Committee notes that the reversal of the onus of proof may be inconsistent with the presumption of innocence,
                which is recognised as a fundamental human right.

         77.    The Committee also notes that this right is not absolute and that provisions which shift the burden of proof, subject to
                reasonable limits, have been held not to be incompatible with the presumption of innocence.

         78.    The Committee has written to the Minister for advice on the need to place a legal burden of proof on a defendant in
                relation to these matters rather than leaving the burden of proof with the prosecution or placing an evidential burden on
                the defendant.

         79.    The Committee refers to Parliament the question of whether reversing the onus of proof and requiring a defendant to
                bear a legal burden of proof unduly trespass on the person's right to be presumed innocent.

         83.    The Committee is of the view that, except in extraordinary circumstances, it is inappropriate for an offence of strict
                liability to be punishable by a term of imprisonment.

That, too, relates to proposed section 193. The Legislation Review Committee raises a number of objections in
relation to a number of sections. The recommendations continue:

         93.    The Committee is of the view that treating a person who has been found not guilty of a crime as if they had been
                convicted of that crime is a trespass of that person's fundamental rights.

         94.    The Committee notes that there is a public interest in ensuring that people cannot benefit from murder. The Committee
                also notes that the person who is the subject of a forfeiture application order under proposed section 11 has been found
                not guilty of murder.

         95.    The Committee further notes that the forfeiture rule can only be applied to a person found not guilty of murder because
                of mental illness if the Supreme Court is satisfied that it is in the interests of justice.

         96.    The Committee has written to the Attorney General for advice as to the public interest justification for extending the
                forfeiture rule to a person who has been found not guilty of murder because of mental illness.

         97.    The Committee has also written to the Minister for advice as to why the Bill gives no guidance to the Court on the
                circumstances in which justice might require the Supreme Court to apply the forfeiture rule to a person who has been
                found not guilty of murder because of mental illness.

         98.    The Committee refers to Parliament the question as to whether the application of the forfeiture rule to a person who has
                been found not guilty of murder because of mental illness under the Bill unduly trespasses on that person's rights.

Under this bill a person who commits murder because of their mental illness effectively can have their worldly
goods confiscated without adequate redress.

         The Hon. John Della Bosca: You are confused.

         The Hon. Dr ARTHUR CHESTERFIELD-EVANS: If that is not the case, I look forward to the
Minister in reply responding to all the letters sent to the Government by the Legislation Review Committee
expressing its concerns, explaining why this could never happen and why that is not apparent in the bill. The
18 October 2005                                     LEGISLATIVE COUNCIL                                                           18651


Government is happy once again to tighten the screws on a group of people using lots of populist rhetoric. Yet
again it is trampling on civil rights, pandering to the shock jocks, making a quick buck and not seeking ways for
restorative justice.

          Ms LEE RHIANNON [3.12 p.m.]: The Greens have grave concerns about the bill. It is straight from
the Government's law and order stable. Premier Iemma attempts to badge his ascendancy and his Ministers as a
new Government, but this bill again reminds us that little changed when the Premier's baton was handed over.
The bill is not about making our society safer. It has two purposes: to get the law and order runs on the board for
the 2007 election and to appease the likes of the Daily Telegraph and Alan Jones.

          The Minister said that the bill creates new offences of money laundering, prevent offenders who are
mentally ill from misusing civil damages paid to them, and prevent mentally ill murderers from profiting from
their crime by applying the forfeiture rule. I agree with some aspects, although the Hon. Dr Arthur Chesterfield-
Evans outlined problems with those measures. I deal in particular with the proposed section dealing with so-
called profiting from crime. Honourable members should be aware that provisions already exist for people who
commit crimes to have their assets confiscated, but there is a problem with the way the law at times administers
them.

          The New South Wales Crime Commission already has the power to confiscate assets. However, the
Greens are concerned because the commission is neither accountable nor overseen by a parliamentary
committee or inspector. It merely reports once a year to Parliament; there is no feedback. The New South Wales
Crime Commission commenced in the mid-1980s, and its first role was to take on the big drug barons. However,
it has picked up a number of other roles and now secretly inquires into almost anything. I am concerned that it
now has the power to confiscate assets from people who have been charged with a crime. That is extraordinary.
I share with the House the comments of Justice Harold Sperling in a case in which a woman was charged with
shoplifting. It was quite extraordinary what was confiscated from her. The woman had stolen some jumpers, and
Justice Sperling said that the commission had frozen her assets at the end of 1997 under the Criminal Assets
Recovery Act. In his judgment Justice Sperling stated:

         It is, of course, open to the NSWCC to invoke the legislation only in suitable cases. This may be a suitable case … I have no way
         of knowing, and it is not for me to inquire … the commission was asserting that [this woman] was engaged in "a serious crime-
         related activity" carrying a jail term of five years or more—the theft of the jumpers, which were recovered.

         Furthermore, although she was convicted of larceny and given three months of periodic detention, the sentence was quashed on
         appeal and replaced with a $500 good behaviour bond.

He stated that the Criminal Assets Recovery Act needed amendment, but it appears that nothing was done about
that recommendation until the introduction of this bill, which seeks to ratchet up the whole process. One would
have to conclude that many more cases could arise in which a person charged with a minor crime could have
their assets confiscated. Honourable members would acknowledge that shoplifting often is a minor crime. The
woman who stole the jumpers worth less than $500 lost half of her home and her car. This bill goes one step
further. It is not necessary for a person to be found guilty to have his or her assets confiscated. This bill is the
overreaction by the Government that we see time and again when it grapples with justice issues. It is so
desperate to grab a good headline and get the shock jocks off its back that it goes too far.

         The Hon. John Della Bosca: What are you talking about?

         Ms LEE RHIANNON: I am talking about proposed section 42C and the issuing of freezing notices. It
appears that the Minister is not aware of this. Under that section an authorised justice may issue a freezing
notice if satisfied that a defendant is likely to be charged. Assets can be frozen when a person has not been
found guilty but merely charged. When one considers the degree of police corruption in this State, this is a
worrying piece of legislation. The Coalition and Labor are always in bed together when it comes to law and
order legislation. The best we get is an auction on who can outdo the other. We know that the bill will be passed,
but the Greens put on record their considerable concern. The bill will do nothing to make the community safer;
it merely seeks to appease various sections of the community. The Greens remain very concerned about the bill.
          The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Commerce, Minister for
Industrial Relations, Minister for Ageing, Minister for Disability Services, Assistant Treasurer, and Vice-
President of the Executive Council) [3.19 p.m.], in reply: I thank honourable members for their contributions.
I shall reply to a couple of matters raised in the debate. Ms Lee Rhiannon mentioned a shoplifting case which
was pursued by the New South Wales Crime Commission. This action was taken under the Criminal Assets
Recovery Act 1990. That is not the legislation being debated now. The present Act is conviction based and
18652                                                LEGISLATIVE COUNCIL                                                  18 October 2005


would not apply in those circumstances. I think that was the principal thrust of Ms Lee Rhiannon's comments. It
is important for honourable members to note—

         Ms Lee Rhiannon: But you don't even have to be charged now.

         The Hon. JOHN DELLA BOSCA: No, that is not the case. The case to which the honourable
member referred was prosecuted under a completely different Act. With regard to the Hon. Dr Arthur
Chesterfield-Evans' comment, I defer to his superior legal knowledge. However, I understand that the
philosophy behind this legislation, and indeed the philosophy behind the whole notion of confiscation of
proceeds of crime legislation, is that of restorative justice. So his thinking and some of the rationale of his
argument are somewhat confused because the whole basis of recovering funds for victims from perpetrators of
criminal acts is a restorative justice program, and this Act is underpinned by the notion of restorative justice.

          Further to the Hon. Dr Arthur Chesterfield-Evans' points, there is evidence of the deterrence value of
confiscated proceeds of crime legislation, particularly when crimes are driven by the profit motive. Indeed, the
honourable member kept referring to murderers and mental illness, and I suspect in that case he was possibly
confusing issues about fitness to plead and other matters. I simply remind him that crimes are driven by the
profit motive, which is where much of the thrust of this legislation is used. In response to his remarks and those
of Ms Lee Rhiannon, which were accurate, the legislation had its genesis in the ongoing determination of
government to deal with the problems created by substantial black markets in illegal products and illicit drugs in
particular. The profit motive is the main motive for the crime, which is the case in many crimes, and this
legislation is effective in deterring perpetrators.

         I remind the Hon. Dr Arthur Chesterfield-Evans that all the money recouped under this Act—I say this
for the purpose of the record—goes directly to the victims fund; none of it is used to make contributions to the
Government's general revenue. In relation to some of the other issues raised—I intend to be brief, but this is
important as Ms Lee Rhiannon and the Hon. Dr Arthur Chesterfield-Evans raised the issue of accountability—
clause 59 extends section 51 (1) by making it an offence to hinder or obstruct the Public Trustee or the
Commissioner of Police in performing their obligations under a restraining order or a freezing notice. The
amendment carries over the existing maximum penalty of 20 penalty points or six months imprisonment.

          In other words, the amendment simply extends an existing provision to cover the Commissioner of
Police and freezing notices. There is no compelling reason why the penalty for hindrance or obstruction in
relation to freezing notices will be different to that for hindrance or obstruction in relation to restraining orders.
Freezing notices are a form of restraining order, and the freezing notice provisions in the bill are modelled on
existing restraining order provisions in the Confiscation of Proceeds of Crime Act. Proposed section 51A
follows existing section 45 (7) for restraining orders. There is no compelling reason why the consequences of
giving a statement in connection with a freezing notice should be treated differently to a statement given in the
case of a restraining order. I commend the bill to the House.

         Motion agreed to.

         Bill read a second time.

                                                             In Committee

         Clauses 1 to 6 agreed to.

         The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Commerce, Minister for
Industrial Relations, Minister for Ageing, Minister for Disability Services, Assistant Treasurer, and Vice-
President of the Executive Council) [3.25 p.m.]: I move Government amendment No. 1:

         No. 1   Page 3, schedule 1. Insert before line 4:

                 [1]      Section 4 Definitions

                          Insert at the end of paragraph (b) (iii) of the definition of appropriate court in section 4 (1):

                                   , or

                                   (iv)     a drug proceeds order against a person convicted of a drug trafficking offence or an
                                            application for a drug proceeds order,
18 October 2005                                       LEGISLATIVE COUNCIL                                                           18653


Item [19] in schedule 1 inserts a new section 13 (2) in the Confiscation of Proceeds of Crime Act 1989, which
provides that if a person is convicted of a drug trafficking offence an appropriate officer may apply to an
appropriate court for a forfeiture order and/or a drug proceeds order over any tainted property or benefits
derived from the offence. It is envisaged that the sentencing court will make a forfeiture order or a drug
proceeds order, as is already the case for forfeiture orders and pecuniary penalty orders which may be sought for
non-drug offences. A consequential mechanical amendment is needed to the definition of "appropriate court" in
section 4 of the Act to enable this to occur. If the amendment is not made the prosecution will have to apply to
the Supreme Court for confiscation orders in drug trafficking matters. This would be highly inefficient. It would
be preferable for the sentencing court to make these orders when a defendant appears before the court for
sentencing. This is what currently occurs for non-drug matters.

         The Hon. DAVID CLARKE [3.26 p.m.]: We understand that this amendment is merely to correct a
drafting error and does not in any way alter the substance of the bill. So on that assurance from the Government,
the Opposition does not oppose the amendment.

         Amendment agreed to.

         Schedule 1 as amended agreed to.

         Schedules 2 to 4 agreed to.

         Title agreed to.

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

                                                 BUSINESS OF THE HOUSE

                                                     Postponement of Business

         Government Business Orders of the Day Nos 7 to 9 postponed on motion by the Hon. John Della
Bosca.

                CRIMES AMENDMENT (ROAD ACCIDENTS) (BRENDAN'S LAW) BILL

                                                          Second Reading

         The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Commerce, Minister for
Industrial Relations, Minister for Ageing, Minister for Disability Services, Assistant Treasurer, and Vice-
President of the Executive Council) [3.30 p.m.]: I move:

         That this bill be now read a second time.

As the speech has been delivered in the other place, I seek leave to incorporate it in Hansard.

         Leave granted.
         Recent tragic cases in NSW and other States have highlighted the difficulties and consequences which may follow when drivers
         leave the scene of a collision and do not stop and render assistance to victims.

         In particular the case of Brendan Saul, a 9 year old boy who died after being struck by a car at Dubbo in January last year.

         Under this bill, a new offence of failing to stop with much heavier penalties is introduced into the Crimes Act in recognition of
         society's abhorrence of those who injure their fellow citizens and then abandon them to die.

         When a driver leaves the scene of an accident, leaving in his or her wake a dead or badly injured person, without attempting to
         render assistance, the fundamental code of civilised society is breached.


         Every driver on our roads needs to be aware that with the privilege of driving on our roads comes a fundamental responsibility to
         our fellow drivers.


         The bill creates section 52AB of the Crimes Act containing new indictable offences. The new section makes it an offence for the
         driver of a vehicle that is involved in a collision causing death or grievous bodily harm to fail to stop and give assistance in
         circumstances in which he or she knows, or ought reasonably to know, that the vehicle has been involved in such a collision.
18654                                                LEGISLATIVE COUNCIL                                                18 October 2005


        Where the collision causes death, the maximum penalty for failure to stop is imprisonment for 10 years. Where the collision causes
        grievous bodily harm, the maximum penalty for failure to stop is imprisonment for 7 years.

        The maximum penalties applying in these cases are severe. The maximum penalties are equivalent to those for offences of
        dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm in section 52A of the Crimes Act.

        As a result there will be no incidental advantage accruing to a driver who flees and knows or ought reasonably have known that death
        or grievous bodily harm was occasioned by the impact.

        The extension of the mental element to incorporate an objective element of "ought reasonably have known" is warranted in the
        special circumstances of this offence. There should be no arguments about actual knowledge where objectively a person ought
        reasonable have known that death or grievous bodily harm would result from a collision.

        The offences will apply to cases involving impacts occasioning death or grievous bodily harm. The definition of impact will be that
        used in section 52A of the Crimes Act. That definition is broad, extending to situations where vehicles run off the road or people are
        thrown from vehicles.

        It will apply to any person who gets behind the wheel of a car—irrespective of age or whether they are licensed or unlicensed.

        The focus of the new offences is to ensure assistance for victims of serious vehicle impacts. Assistance may save a life, minimise
        injury, improve the prospect of recovery, alleviate suffering and preserve the dignity of the injured or deceased. Failure to stop and
        assist in serious accidents should invite significant punishment.

        The requirement is to stop and give any assistance necessary and that is in the driver's power to give. That is not to say that people
        must stop and perform first aid when they are not qualified to do so, or rescue someone from a burning car in dangerous
        circumstances. Obviously common sense judgement will be required.

        What is required is for the person to stop and take steps to assist directly or obtain expert help by contacting police or emergency
        services to ensure professional expert assistance is obtained at the earliest opportunity.

        The actions of these drivers in fleeing may thwart police in their ability to identify the drivers and collect necessary evidence. The
        presence of drivers at the scene ensures that the investigation is at no disadvantage.

        The creation of indictable offences of failing to stop and assist will also enliven a broader range of powers available to help
        police in investigation. For example, the power to demand the name and address of a person where a police officer believes on
        reasonable grounds that the person may be able to assist in the investigation of an alleged indictable offence.

        A person convicted of these offences will be liable to mandatory driver's licence disqualification. The offences will be relevant
        offences for the purpose of habitual traffic offender declarations and disqualification periods.

        There is provision to deal with the proposed section 52AB indictable offences summarily or on indictment in the District Court at
        the election of the prosecution.

        The bill also amends section 70 of the Road Transport (Safety and Traffic Management) Act.

        Section 70 will be similar to section 52AB in that it will also incorporate the objective test where the driver knew or ought
        reasonably have known the result of the accident.

        The offence will however apply to drivers of vehicles involved in collisions causing any physical injury.

        The definition of impact will also be that used in section 52AB. Section 70 will continue to carry mandatory licence
        disqualification and be a relevant offence for habitual traffic offender purposes.

        An education campaign aimed at informing drivers of their responsibilities will be developed prior to commencement of the
        legislation.

        With these new sanctions motorists who flee the scene of an accident will face tougher penalties and a greater chance of being
        caught. The new offence strips away any incentive that may exist in the current penalty structure to flee or evade police.

        Eighteen months ago a small boy died on a sunny afternoon in a terrible collision. Thanks to the long campaign of his father, this
        bill is a stepping stone of legal reform recognising that sad death. In a very real sense, this is Brendan's law.

        I commend the bill to the House.

         The Hon. DAVID CLARKE [3.30 p.m.]: The Crimes Amendment (Road Accidents) (Brendan's Law)
Bill amends the Crimes Act and a number of other Acts to deal with the obligations of drivers to stop and
provide assistance where their vehicles are involved in accidents that cause death or injury. The bill has the
support of the Opposition and arises largely from the circumstances surrounding the tragic death of a nine-year-
old boy, Brendan Saul, who was killed in a hit-and-run car accident in Dubbo in January 2004. It also arises
from the crusading efforts of Brendan's father, Kevin Saul.

         Failure of a driver to stop and render assistance in instances where the vehicle was involved in an
accident causing death or injury is an act of callousness and inhumanity. To stop and render assistance may well
18 October 2005                                      LEGISLATIVE COUNCIL                                                            18655


save a life or minimise injury and suffering. Currently, failure to stop at the scene of an accident similar to that
involving the late Brendan Saul is punishable by a maximum penalty of 18 months imprisonment for a first
offence and two years for a second or subsequent offence. These penalties are excessively low when compared
with the higher penalties for other crimes such as dangerous driving.

         This bill amends the Crimes Act so as to make it in offence for the driver of the vehicle involved in a
collision causing death or grievous bodily harm to fail to stop and give assistance in circumstances where the
driver knows, or ought to have reasonably known, that the vehicle has been involved in such a collision. Where
the collision causes death, the maximum penalty is imprisonment for 10 years. Where the collision causes
grievous bodily harm, the maximum penalty is imprisonment for seven years. The maximum penalties provided
under this new section will be equivalent to the maximum penalties provided for the offences of dangerous
driving occasioning death and dangerous driving occasioning grievous bodily harm contained in the Crimes Act.

         The Criminal Procedure Act is amended so that such an offence will be dealt with summarily unless the
prosecution or the person charged elects for it to be dealt with on indictment. If the matter is dealt with
summarily the maximum penalty will be imprisonment for 18 months. The Road Transport (General) Act 1999
and the uncommenced Road Transport (General) Act 2005 provide for the disqualification of a person from
holding a drivers licence in circumstances in which the person is convicted of an offence under the proposed
amendment to the Crimes Act.

          A proposed new section to the Road Transport (Safety and Traffic Management) Act will replace an
existing section with respect to the giving of assistance and accidents involving death or injury and substitute
provisions similar to those proposed to the Crimes Act but will only apply to a collision where any injury
appears to fall short of death or grievous bodily harm. As with existing section 70, the maximum penalty for
failing to stop and give assistance is 30 penalty units or imprisonment for 18 months or both for a first offence,
or 50 penalty units or imprisonment for two years or both for a second or subsequent offence.

          This bill was originally introduced in the other place as the Crimes Amendment (Road Accidents) Bill.
However, as a result of the amendment proposed by the shadow Attorney General, the honourable member for
Epping, and agreed to by the Government it comes to this Chamber with an amended title containing the
additional words "Brendan's Law" thus recognising the tragic circumstances of young Brendan's loss of life as a
major motivating factor for the need for this bill. The incorporation of young Brendan's name into the title of
this bill memorialises his tragic loss of life and recognises the admirable efforts of Brendan's father in initiating
efforts to bring about changes to the law to help minimise such tragic loss of life in the future. Additionally, the
incorporation of his name assists and focuses members of this Parliament and members of the community to
more fully appreciate that failure of drivers to remain and render assistance after a collision can have devastating
results, including loss of life.

         The Hon. Dr ARTHUR CHESTERFIELD-EVANS [3.35 p.m.]: I do not wish to cause further
anguish to Brendan Saul's parents, who lost their son in a tragic accident when a young driver hit him and did
not stop, but I do not think that legislation like this bill is warranted in all circumstances. I refer to the
considerable concerns raised in the Legislation Review Committee report:
         13. The bill also does not explicitly address the ability of a driver suffering from mental or psychological incapacity who leaves a
         scene of accident. For example, it is not clear to the Committee how the objective test would be applied to a driver who was very
         confused or in a state of automatism as a result of the physical or psychological impact of an accident.

         14. The Committee considers that, as a general, objective mens rea standards should only be imposed when clearly in the public
         interest, and the severity of punishment should reflect the lack of criminal intent.

         15. The Committee notes the benefit of preventing drivers escaping criminal liability for failing to stop by claiming they were not
         aware of an injury or death arising from their driving in circumstances where a reasonable person ought to have known of that
         injury or death.

         16. The Committee has written to the Attorney General to seek clarification on the liability of a driver, whose vehicle causes
         injury or death, leaving the scene of an accident under some mental incapacity.

         17. The Committee refers to Parliament the question of whether the adoption of an objective standard in the proposed
         amendments constitutes an undue trespass on personal rights and liberties.

Some years ago I was driving out of a petrol station in north Newtown in my Morris Minor when I heard a
thump. I was easing the car slowly across the footpath at the time and when I heard the thump I was a little
surprised. I got out and found a two-year-old had run in front of the car. I had hit the two-year-old. The mother
had been looking the other way and had not seen her two-year-old being hit, and I had not seen the two-year-old
18656                                                LEGISLATIVE COUNCIL                                              18 October 2005


through the windscreen. The only person who appeared to have been a witness to the injury was someone across
the road who came over and said, "Gosh, you bowled him over." Had I continued driving he would not have
been injured, because he was out of the way of the car, and he was not injured beyond having been pushed over,
and made sufficient noise that I heard it. My front seat passenger was entirely unaware there had been any
collision at all, because she had not heard the thump.

          I had hit a child, I had heard the sound, but I did not see the child before or after the accident. When I
looked out of the windscreen after hearing the noise I still saw nothing. I got out because I heard a thump, which
seemed odd, and I thought I had run over something that had thumped underneath the engine. It is certainly
possible not to recognise that one has had an accident. The question is how much discretion is provided for in
this legislation? The Legislation Review Committee commented further in its report:

         23. The Committee notes that the maximum penalties for failing to stop and assist under s 52AB(1) and (2) are the same as the
         penalties for dangerous driving occasioning death or grievous bodily harm under s 52A (1) and (3) respectively with a view to
         removing an incentive to flee the scene of an accident to avoid a more severe penalty.

         24. The Committee notes that s 52AB makes no distinction between a driver whose dangerous driving caused the accident and a
         driver who was not responsible for the accident where both leave the scene. Both would face maximum penalties of 10 or 7 years
         imprisonment.

Clearly, if the mens rea test is applied, a driver who causes an accident is far more guilty than a driver who is an
innocent victim, yet under this legislation they will both face the same penalties. The report continues:

         25. The Committee has written to the Attorney General to seek his advice as to why the more severe penalties in s 52AB may
         apply to drivers who did not drive in a dangerous manner rather than being limited to some circumstances of aggravation, such as
         dangerous driving.

         26. The Committee refers to Parliament the question of whether the severe penalties in s 52AB, which does not require that a
         driver be responsible for the impact occasioning death or grievous bodily harm, unduly trespasses on personal rights and liberties.

Once again, this point would appear not to have been addressed by the Parliament: there does not appear to be
an amendment about this and it was not mentioned in Government or Opposition speeches. I would appreciate it
if the Government would, in reply, respond to the letters from the Legislation Review Committee. I note that the
Minister did not respond in relation to the last bill on which I put these matters from the Legislation Review
Committee to the Government. I believe that the Government has an obligation, if it is going to have a
Legislation Review Committee that goes to the trouble of going through bills to find problems with them, at
least in reply or during the second reading debate if possible, to refer to the letters and deal with the issues. The
report continues:

         31. The Committee notes that the Bill places an obligation on the driver of a vehicle involved in an impact occasioning death or
         injury to provide any assistance that may be necessary, and that is in his or her power to give, regardless of whether the driver
         was responsible for that impact.

         32. The Committee notes that no such obligation is placed upon other witnesses to the accident or, for example, any pedestrian
         who may have caused the accident.

Years ago when I was at school there was a pedestrian crossing outside the swimming pool in O'Connell Street,
Parramatta. Frequently people would dart out onto the pedestrian crossing and there would be chain collisions of
three or four cars. Some pedestrians would merely give a cheery wave to all the cars that had crashed and keep
walking, which really was quite extraordinary. There was a screeching of brakes, the first car would stop and the
others would run into the back of the car in front. The pedestrian would give a cheery wave to those who were
up for a fortune to repair their cars.

         The Hon. John Della Bosca: Prima facie they were driving negligently.

        The Hon. Dr ARTHUR CHESTERFIELD-EVANS: In more modern parlance it would be
designated a black spot and there would be more warnings about the pedestrian crossing ahead. It was on the
main bypass of the Parramatta central business district. The Legislation Review Committee report goes on to
state:

         33. The Committee also notes that, while the second reading speech stated that common sense judgement will be required in the
         application of the offences, the actual terms of the Bill appear to place a fairly onerous requirement of assistance that goes
         beyond that which is merely reasonable.
18 October 2005                                     LEGISLATIVE COUNCIL                                                           18657


         34. The Committee has written to the Attorney General to seek his advice as to why drivers who are not responsible for their
         vehicle's impact occasioning death or injury are under a duty to assist while other persons at the scene, who may or may not have
         had some responsibility for the accident, have no such duty.

         35. The Committee has also written to the Attorney General to seek his advice as to why the duty to assist is not put in terms of
         what is reasonable, and within a person's power, if that is the level of duty intended.

         36. The Committee refers to Parliament the question of whether the duty placed upon drivers to provide any assistance that may
         be necessary and within their power unduly trespasses on personal rights and liberties.

My view is that it certainly does not but I think in this case the Attorney General ought to respond in his speech
in reply to questions legitimately raised by the Legislation Review Committee.

         Reverend the Hon. Dr GORDON MOYES [3.43 p.m.]: This bill amends the Crimes Act 1900 and
road transport legislation with respect to the obligations of drivers to stop and provide assistance where their
vehicles are involved in accidents resulting in death or injury. The Christian Democratic Party supports the bill.
However, the Legislation Review Committee has identified concerns about the bill that need to be addressed
before the House passes it in its current form. In our day-to-day living we all must have, at some point, heard or
read about a story of a person struck down by a vehicle who was subsequently left abandoned and unassisted by
the driver of the vehicle involved. Reports of hit-and-run accidents commonly make an appearance in the
newspapers. The second reading speech to this bill refers to the case of Brendan Saul, a nine-year-old boy who
died after being struck at Dubbo in January 2004 by a car driven by a juvenile driver. His story was similar to
that of Bryce Rolls, an 11-year-old who died after being struck down by a car in May 2003.

           Every death leaves a trail of inexplicable and indelible grief for affected families and communities
alike. It is trite to say that fundamental norms of human decency are violated when a driver leaves the scene of
an accident without rendering assistance to the victim of the accident. The plight of such victims is in some
ways similar to that of the "certain man" referred to by Jesus in Luke 10. He was wounded and abandoned by
thieves on the way to Jerusalem, left for dead and then assisted by the Good Samaritan. Hit-and-run drivers
should observe and learn from the story of the Good Samaritan. There is a chance that in some hit-and-run cases
the injury suffered by the victim could have been mitigated if medical assistance had been rendered to the victim
at the time of the collision. The bill is important because it makes drivers responsible for ensuring that victims
of accidents are given medical assistance.

         The bill is also curious because it legislates in relation to an omission and not an act. Generally, the law
prohibits citizens from acting rather than providing for it to be an offence if citizens do not act in a certain way.
However, there are examples of situations where the law has covered omissions, especially where a duty of care
is involved. The bill inserts a new section in the Crimes Act 1900, section 52AB, which creates two new
offences. The new section makes it an offence for the driver of a vehicle that is involved in a collision causing
death or grievous bodily harm to fail to stop and give assistance in circumstances in which he or she knows, or
ought reasonably to know, that the vehicle has been involved in such a collision. In cases in which the collision
causes death, the maximum penalty for failure to stop is imprisonment for 10 years. Where the collision causes
grievous bodily harm the maximum penalty for failure to stop is imprisonment for seven years.

          It is of interest to note that the maximum penalties are equivalent to those for offences of dangerous
driving occasioning death and dangerous driving occasioning grievous bodily harm in section 52A of the Crimes
Act. While these heavy penalties may be included as a way of deterring such behaviour, it is significant to point
out that section 52AB makes no distinction between a driver whose dangerous driving caused the accident and a
driver who caused an accident inadvertently—when, say, a pedestrian or animal crossed his or her path. The
Legislation Review Committee has written to the Attorney General to seek his advice as to why the more severe
penalties in section 52AB may apply to drivers who did not drive in a dangerous manner rather than being
limited to some circumstance of aggravation, such as involved with dangerous driving. Those driving
dangerously and those who are deemed not to have been driving dangerously per se who flee the scene of an
accident are both liable to maximum penalties of 10 or seven years imprisonment. The other issue referred to the
Parliament by the committee is that section 52AB does not require that a driver be directly responsible for the
impact occasioning death or grievous bodily harm in order for the maximum penalties to be attracted.

         Section 52AB is based on an objective mental element criteria rather than a subjective one. Thus, a
person is guilty of an offence if the person "ought reasonably to know" that the vehicle has been involved in
impact occasioning the death of, or grievous bodily harm to, another person. The Hon. Dr Arthur Chesterfield-
Evans referred to an incident in which he might not reasonably have known that an accident occurred while he
was at the wheel of his Morris Minor. My memories of Morris Minors is that any two-year-old boy who had had
18658                                               LEGISLATIVE COUNCIL                                              18 October 2005


his Weet-Bix for lunch could have picked up a Morris Minor by the front bumper bar. The committee has
referred the question as to whether imprisonment should be available for this offence, given that it is based on
an objective mens rea assessment.

         One worthy point to note is that the bill does not explicitly address the liability of a driver suffering
from mental or psychological incapacity who leaves the scene of an accident. This was identified by the
committee, which said, "It is not clear to the Committee how the objective test would be applied to a driver who
was very confused or in a state of automatism as a result of the physical or psychological impact of an accident".
The committee has sought clarification from the Attorney General on the liability of a driver whose vehicle
causes injury or death and who has left the scene of an accident under some mental incapacity. The bill also
replaces current section 70 of the Road Transport (Safety and Traffic Management) Act 1999 with a new
version. The new provision is aimed at ensuring that immediate assistance is obtained for people injured in
accidents, however serious the injury.

         The maximum penalty for failing to stop and provide assistance is 18 months imprisonment for a first
offence and two years for a subsequent offence under this provision. The new offence introduced by this bill
mirrors the recent Victorian amendments. The Government has indicated that an education campaign aimed at
informing drivers of their responsibility will be developed prior to the commencement of this legislation. With
those comments in mind the Christian Democratic Party supports the bill.

          Ms LEE RHIANNON [3.50 p.m.]: I will begin by extending my sympathy to the family of Brendan
Saul, who will forever live with the tragedy of Brendan's death in Dubbo last year. In a society dominated by
cars, hit-and-run accidents are some of the dreadful consequences, and those who leave the scene of an accident
without providing assistance clearly should be held to account.

        The Hon. John Della Bosca: Good thinking!

         Ms LEE RHIANNON: Thank you, Minister. The Greens do not support the way the Government has
designed the new offences in this bill. We have before us a very poor process and, indeed, some very worrying
developments in how this process is being played out. The Legislation Review Committee has raised extremely
serious concerns relating to the bill. That committee's assessment is contained in Legislation Review Digest No.
11 of 2005. The committee has written to the Attorney seeking clarification in relation to a number of key
issues. The committee also referred to Parliament the question of whether aspects of the bill constitute an undue
trespass on personal rights and liberties.

         In an act of astonishing arrogance the Government has brought this bill on for debate in the House
before the Attorney General has provided clarification of these matters of concern to the committee. I find it
quite breathtaking. I do not know what that says about the standing of the Attorney General or what it says about
how this Government should work, but surely that would be just part of the process that the Government would
go through. We know the Legislation Review Committee rarely makes such comments. It has done so, and we
believe that those comments need to be noted very clearly. The Greens urge members of the House not to
support a bill that the Legislation Review Committee—generally a very conservative committee—holds
considerable concerns about and in respect of which it has asked for an explanation from the Attorney General.

         The maximum penalties for the new offences to be included in the Crimes Act as a result of this bill are
very substantial. Where the collision caused death, failure to stop can lead to imprisonment for 10 years, and
where the collision caused grievous bodily harm, failure to stop can lead to imprisonment for seven years. As
pointed out in the Minister's second reading speech, these are severe penalties equivalent to those in the Crimes
Act for offences of dangerous driving occasioning death and dangerous driving occasioning grievous bodily
harm. The Legislation Review Committee focused on the objective mens rea standard, aggravated offences and
the duty of care. I would like to read onto the record some of the comments of the Legislation Review
Committee, for the benefit of those honourable members who have not had an opportunity to acquaint
themselves with them, because they are most pertinent to our consideration of the legislation. At page 18 of the
Legislation Review Digest the committee stated:

        Traditionally under criminal law, a person will only be held responsible—and punished—for conduct the nature and context of
        which he or she is actually aware, ie, a subjective standard. The Bill provides an alternative objective test ("ought reasonably to
        know") to the subjective test ("knows") to determine the culpability of a driver whose vehicle was involved in an impact
        occasioning death or injury. The objective test exposes the driver to a severe penalty if they did not know this fact but it can be
        shown that a reasonable person would have known it. In this regard the offence is kin to one of strict liability. The committee has
        previously expressed the view that imprisonment should not be available for strict liability of offences.
18 October 2005                                     LEGISLATIVE COUNCIL                                                            18659


        However, the use of a subjective standard in criminal law has already been significantly modified, even in relation to well-
        established criminal offences. Such change is being made not only legislatively, but also by the courts when interpreting
        legislation and elucidating the common law.

        Moreover, it is arguable that the steps a driver must take to avoid liability under proposed s 52AB are not unduly onerous. Any
        impact involving an occupied motor vehicle carries a substantial risk of injury (eg, reversing into an occupied parked car carries a
        risk of whiplash to the occupant). It could reasonably be argued that an accused who has failed to stop should not be allowed to
        escape conviction by arguing that he or she did not realise that injury has been caused, when a reasonable person would have
        reached a different conclusion. It is not unreasonable to demand that any person involved in an accident stop and inquire as to the
        health of anybody else involved.

        It is important to note, however, that the concept of "impact" is defined very broadly, including a vehicle causing impact between
        other vehicles or another vehicle and a person. Such an indirect impact may not be obvious to a driver.

        The Bill also does not explicitly address the liability of a driver suffering from mental or psychological incapacity who leaves the
        scene of an accident. For example, it is not clear to the Committee how the objective test would be applied to a driver who was
        very confused or in a state of automatism as a result of the physical or psychological impact of an accident.

        The Committee considers that, as a general rule, objective mens rea standards should only be imposed when clearly in the public
        interest, and the severity of punishment should reflect the lack of criminal intent.

        The Committee notes the benefit of preventing drivers escaping criminal liability for failing to stop by claiming they were not
        aware of an injury or death arising from their driving in circumstances where a reasonable person ought to have known of that
        injury or death.

        The Committee has written to the Attorney General to seek clarification on the liability of a driver, whose vehicle caused injury
        or death, leaving the scene of an accident under some mental incapacity.

        The Committee refers to Parliament the question of whether the adoption of an objective standard in the proposed amendments
        constitutes an undue trespass on personal rights and liberties.

Under the heading "Aggravated offences" the committee stated:

        The primary aim of the offence under proposed new s 70 is to ensure that immediate assistance is obtained for people injured in
        accidents, however serious the accident.

        According to the second reading speech, the Bill's other aim is to increase maximum penalties in order to deter those who may
        have committed other serious offences from seeking to evade a liability by leaving the scene, thereby making it more difficult for
        the police to gather evidence to prove those offences (for example, evidence that the accused was over the prescribed alcohol
        limit).

        It is justifiable that any driver—regardless of whether he or she caused an accident, or was entirely blameless in this regard—
        should be required to offer assistance to an injured person and the penalties in s 70 are arguably reasonable for those who are
        innocently involved in an accident but then fail to stop. It also seems reasonable to impose heavier penalties for the offences
        under s 52AB (1) and (2) when a person criminally responsible for the death or injury of a person flees the scene.

        However, it is not apparent why a person who is not responsible for an accident involving the vehicle he or she was driving
        should be liable to the heavier penalties under s 52AB (1) and (2). Such heavier penalties would seem appropriate for
        circumstances of aggravation, such as dangerous driving.

        In theory, a driver who was not responsible for the initial accident could be convicted under s 52AB (1) or (2) because he or she
        failed to stop and lend assistance to the person whose serious criminal behaviour was entirely responsible for the accident.

        The Committee notes that the maximum penalties for failing to stop and assist under s 52AB (1) and (2) are the same as the
        penalties for dangerous driving occasioning death or grievous bodily harm under s 52A (1) and (3) respectively with a view to
        removing the incentive to flee the scene of an accident to avoid a more severe penalty.

        The Committee notes that s 52AB makes no distinction between a driver whose dangerous driving caused the accident and a
        driver who is not responsible for the accident where both leave the scene. Both would face maximum penalties of 10 or 7 years
        imprisonment.

        The Committee has written to the Attorney General to seek his advice as to why the more severe penalties in s 52AB may apply
        to drivers who did not drive in a dangerous manner rather than being limited to some circumstance of aggravation, such as
        dangerous driving.

        The Committee refers to Parliament the question of whether the severe penalties in s 52AB, which does not require that a driver
        be responsible for the impact occasioning death or grievous bodily harm, unduly trespasses on personal rights and liberties.


Under the heading "Duty of care" the Legislation Review Committee sets out the following points:

        There is no general duty at common law for a person to rescue someone else, even if he or she could have saved that other person
        without personal risk: not every moral obligation involves a duty to act.
18660                                               LEGISLATIVE COUNCIL                                              18 October 2005


         There are many instances in which legislation has in fact made an omission into a criminal offence, creating a duty to act. There
         are, however, particular features of the duty to act under proposed s 52AB which may be regarded as being too expansive, and
         creating thereby an undue trespass upon personal rights and liberties.

         •       the duty to lend assistance under s 52AB is imposed not only on drivers who have caused the accident by their criminal
                 behaviour, but also on drivers who may in fact be the victims of offences committed by the very people whom they are
                 now required to assist. Moreover, others at the scene of an accident are not placed under a similar duty of care; and

         •       on the face of the proposed section, the duty is not simply to inform emergency services as soon as possible, but "to give
                 any assistance that may be necessary".

         Pursuant to sessional orders business interrupted.

                                            QUESTIONS WITHOUT NOTICE

                                                             _________

                                    NEWCASTLE MULTIPURPOSE TERMINAL

         The Hon. MICHAEL GALLACHER: My question without notice is directed to the Minister for
Finance, Minister for Infrastructure, and Minister for the Hunter. When does the Government expect the
proposed multipurpose terminal at Newcastle to be constructed, in light of the Government's recent
announcements on Port Kembla and Port Botany? What advice has been given to the Government on the
proposed development at Newcastle? Does the Government expect the two parties who have been shortlisted to
negotiate with the Newcastle Port Corporation on the multipurpose terminal to develop Newcastle when Port
Botany reaches capacity? When will the Government provide advice to Newcastle businesses, councils and the
community on the revised forecast development program for the multipurpose terminal? Given that the
Minister's portfolio responsibilities also include Infrastructure and the Hunter, why has he declined requests
from Newcastle media for his comments on this issue, citing that he is no longer the Minister for Ports and is not
up to date with how the multipurpose terminal process is progressing?

          The Hon. MICHAEL COSTA: I thank the Leader of the Opposition and his research staff for their
intense research of last Saturday's Newcastle Herald. The question comes straight out of that newspaper. The
Government's position in relation to the multipurpose terminal has not changed. The former Premier announced
the project as part of the ports strategy, and the Government is implementing that strategy. There is nothing
further to add. It is a matter for the private sector ultimately. However, in line with the port strategy, the
Government supports the decisions that were made in relation to Newcastle becoming the next major port
facility once the capacity at Port Botany has been utilised.

                      FEDERAL GOVERNMENT INDUSTRIAL RELATIONS POLICY

         The Hon. PETER PRIMROSE: My question is addressed to the Minister for Industrial Relations.
Will the Minister follow a century's tradition and consult with the Commonwealth about changes to industrial
relations legislation affecting New South Wales workers, families and businesses?
         The Hon. JOHN DELLA BOSCA: I thank the Hon. Peter Primrose for his question; obviously he is
closely following the industrial relations debate. The New South Wales Government is very keen to consult with
the Federal Government about the radical WorkChoices plan to strip wages, rights and entitlements from
Australian workers and their families. Members will recall how the Commonwealth avoided, postponed and
cancelled the regular meetings of Australia's industrial relations Ministers.
         The Hon. Duncan Gay: Who are you going to get to represent you—Paul Keating?
          The Hon. JOHN DELLA BOSCA: No. I will represent the State Government. The Deputy Leader of
the Opposition thinks this is a funny matter. I am sure that the rural workers of New South Wales will be very
disappointed at his inability to stand up for their rights and entitlements. On 5 August this year, after three false
starts, the Commonwealth Minister chaired a meeting of the Workplace Relations Ministers Council in
Melbourne. Under sustained questioning from the States, particularly from my South Australian colleague
Michael Wright, the Commonwealth Minister for Workplace Relations agreed to brief the State Ministers prior
to the introduction of the legislation.
         Consulting the States on legislation is something every Commonwealth government has done for a
century. That is because, under the Australian Constitution, industrial relations is a shared power. By inference,
18 October 2005                              LEGISLATIVE COUNCIL                                             18661


the Commonwealth is obliged to consult. Given the radical nature of the changes being proposed by the
Commonwealth and their profound effects on the States and Territories, I have written to Mr Andrews to
acknowledge his commitment and set down a time and place. As far as I can tell from media reports,
Mr Andrews has briefed employer associations and spoken at great length to a range of top-end-of-town
solicitors and barristers, but he has avoided briefing the States and Territories that run the systems used by
millions of Australian workers and their families to achieve wage and salary justice and maintain their lifestyles.

        It is particularly important for New South Wales, where we have the only State Opposition in the
country to agree—sight unseen; the legislation is still not in the public arena and is still not in the
Commonwealth Parliament—to hand over the New South Wales industrial relations powers to the
Commonwealth. The Western Australian Liberal leader defeated the Prime Minister on the floor of the Liberal
Party's conference in Western Australia regarding these industrial relations changes. The Queensland
Opposition leader described WorkChoices as stupid.

         Only in New South Wales has the new State Liberal leader, the member for Vaucluse, agreed to hand
over nurses, teachers, police, ambulance officers and firefighters—our hardworking front-line public sector
workers—to the mercies of the Federal Government's so-called WorkChoices industrial relations power grab.
The Opposition would hand these front-line emergency services workers to a new system that relies on lockouts
and strikes to resolve its disputes. It is a system that will put at risk the delivery of emergency services to New
South Wales families. It is vital that the Commonwealth start talking to the States and Territories in a
constructive and co-operative way. All the Commonwealth has demonstrated to us to date is that it is prepared to
arrogantly abuse its power in the Senate to slash the wages, conditions and lifestyles of Australian workers and
their families.

                                   PORT BOTANY BOAT RAMP ACCESS

         The Hon. DUNCAN GAY: My question without notice is directed to the Minister for Ports and
Waterways. What will happen to the two boat ramps located at Port Botany when the planned extensions for the
container port go ahead? What action will the Minister take to ensure developers responsible for the container
port replace these ramps? Is the Minister aware that following this development the only boat ramp access in the
area will be from the Cooks River and the Georges River? What action will the Minister take to improve and
increase boat ramp access in both Botany Bay and Port Jackson?

[Interruption]

          The Hon. ERIC ROOZENDAAL: I appreciate the Coalition's interest in boat ramps. It is good to see
that Coalition members are taking an interest in the recreational boating industry. Indeed, 1.5 million people in
New South Wales enjoy boating and there are more than 400,000 boating licences. With regard to the issue
raised by the Deputy Leader of the Opposition, if he had read the press release he would know that a new public
jetty is to be constructed at Port Botany, that it will have a four-lane boat ramp and a car park, and there will
also be a cycle path along the foreshore road. A pedestrian bridge will also be constructed over the Botany
freight line at Banksia Street.

         When talking about improvements around Port Botany, it is worth noting that a $3 million
enhancement fund will be established to improve community facilities, including the construction of a new
gymnasium at J. J. Cahill Memorial High School at Mascot. A number of facilities are being constructed. I am
pleased that the Deputy Leader of the Opposition is concerned about this issue. I am keen to support additional
boat ramps in other areas. However, I want to say this about the Port Botany expansion, because it is a critical
piece of port infrastructure—

         The Hon. Duncan Gay: What about boat ramps?

        The Hon. ERIC ROOZENDAAL: We have talked about boat ramps; let us now talk about Port
Botany. Port Botany is a critical piece of infrastructure, and I welcome the Coalition's support on this issue. Port
Botany is critical to the future of the New South Wales economy. As members would be well aware, it is a four
and a half to five-year construction process that will result in more than 2,000 direct and indirect construction
jobs here in Sydney. Once it is complete and operating there will be 9,000 direct and indirect jobs. That
demonstrates to the Coalition and to the people of New South Wales that this Government is serious about
business in this State and is serious about improving infrastructure. On the issue of port freight, as the Deputy
Leader of the Opposition has raised the issue, the Government is working towards a target—
18662                                        LEGISLATIVE COUNCIL                                  18 October 2005


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

        The Hon. ERIC ROOZENDAAL: The Government is working towards a 40 per cent target of TEUs
on rail—

         The PRESIDENT: Order! I call the Hon. Dr Arthur Chesterfield-Evans to order for the first time.

        The Hon. Rick Colless: Point of order: Nowhere in the question that the Deputy Leader of the
Opposition asked is there anything about freight at Port Botany or TEUs, or whatever it was the honourable
member was talking about. This issue is about boat ramps in Port Botany and Port Jackson. I ask you to direct
the Minister back to the question that was asked.

         The PRESIDENT: Order! General comments are allowed in answers to questions.

         The Hon. ERIC ROOZENDAAL: Doesn't that say it all! Straight from the mouths of babes: "We
don't care about $500 million of infrastructure. We don't care about 9,000 jobs". I answered the question about
boat ramps but after the Opposition gets the cold hard facts about what is going on in this State, its members fall
asleep on that side of the House. The Hon. Patricia Forsythe is not even here today; she is off planning her
retirement, and the rest of the Opposition sit there looking guilty. The Opposition does not like it when it gets an
answer it does not like. Patricia has gone—floated away. Poor old John Ryan is busy filling in the vacancy.

         The Hon. Don Harwin: Point of order: The Minister has made a remark about my colleague the Hon.
Patricia Forsythe which is untrue, and the Minister's remarks are completely irrelevant to the question that has
been asked. You should draw him back to the question under the sessional orders.

       The PRESIDENT: Order! The Minister cannot make imputations against other members of the
Chamber unless by way of substantive motion. Further, his answer must be relevant.

                                          ANTI-TERRORISM LAWS

         The Hon. PETER BREEN: My question without notice is directed to the Minister for State
Development, representing the Attorney General. Is the Minister aware that proposed new anti-terrorism laws
seek to make it a criminal offence to communicate inciting messages against Australia's forces overseas and in
support of Australia's enemies' laws, which would carry up to seven years imprisonment? If so, how would such
a provision affect a person who makes a statement to the effect that the Iraqi people have a right to resist the
US-led forces that entered their country by a violent and illegal invasion and who are responsible for mass
human rights violations in Iraq? Does the Government support the right of people to make such a statement,
regardless of whether or not it agrees with the statement?

         The Hon. JOHN DELLA BOSCA: I will ask the Attorney General to give the honourable member a
detailed response as soon as practicable.

                                        PORT BOTANY EXPANSION

        The Hon. HENRY TSANG: My question without notice is directed to the Minister for Ports and
Waterways. Will the Minister inform the House as to what the Government is doing to boost port infrastructure
and keep New South Wales open for business?

         The Hon. ERIC ROOZENDAAL: Last week I joined the Premier in announcing a major expansion
of Port Botany, delivering 9,000 new jobs to New South Wales and boosting the State's economy by $16 billion
over the next 20 years.

         The PRESIDENT: Order! I call the Hon. Catherine Cusack to order for the first time.

[Interruption]

         The PRESIDENT: Order! I call the Hon. Catherine Cusack to order for the second time.

         The Hon. Duncan Gay: Point of order: The Minister is being tedious and repetitious. These are
exactly the same words that he used in answer to the previous question.
18 October 2005                             LEGISLATIVE COUNCIL                                            18663


         The PRESIDENT: Order! A point of order can be raised that a member's contribution to debate is
tedious or repetitious. However, with regard to questions, all that is required is that answers be relevant.

         The Hon. ERIC ROOZENDAAL: It is about keeping New South Wales open for business. Port
Botany is vital to the New South Wales economy as the gateway for containerised trade. If members of the
Opposition listened they would learn a few things here. A third of Australia's container traffic is handled at the
port, generating $1.5 billion a year in economic activity. Items as diverse as clothing, computers, furniture and
pet food are shipped through the facility. Since the development of containerised trade there has been a steady
increase in the amount of trade shipped in and out of New South Wales. This year 1.3 million TEU containers
were handled at Port Botany, and that figure is expected to continue to grow. Over the next two decades the
number of containers arriving is expected to almost triple to 3.2 million.

        The Hon. Melinda Pavey: What is a TEU, Eric?

         The PRESIDENT: Order! I call the Hon. Melinda Pavey to order for the first time.

        The Hon. ERIC ROOZENDAAL: It is a twenty-foot equivalent unit. At this rate Port Botany is
expected to reach full capacity around 2010. It is clear that Port Botany must be expanded. As commissioner
Kevin Cleland said, "The Commission is adamant that the do-nothing option would not be a responsible plan".
The consequences of capacity constraints and lost efficiency at Port Botany would be severe.

          The Hon. Greg Pearce: At the estimates hearing the other night when the Minister was doing this very
same thing. We were able to read along with him. Can I suggest that he actually gives out his answer so we can
all read along with him at the same time?

         The PRESIDENT: Order! There is no point of order. Members who wish to engage in conversation
should leave the Chamber.

        The Hon. ERIC ROOZENDAAL: If 10 per cent of container shipping were to move interstate to
Queensland or Victoria New South Wales would lose 1,000 jobs and $150 million a year in revenue. That is
why the Minister for Planning has granted planning approval to the Sydney ports expansion proposal.

        The Hon. Melinda Pavey: What is a TEU?

         The Hon. ERIC ROOZENDAAL: I have answered that. If the honourable member cleaned her ears
she would understand. This will be the most significant development for Port Botany since its construction in
the 1970s. I am advised the approved $500 million expansion will generate up to 2,000 construction jobs and
create an additional 9,000 direct and indirect jobs for New South Wales once the new terminal begins operation.
The expansion is an important part of the Iemma Government's Ports Growth Plan, which last week also saw the
announcement of a $140 million investment in moving car imports from Glebe Island to Port Kembla—

         The PRESIDENT: Order! I call the Hon. Melinda Pavey to order for the second time.

         The Hon. ERIC ROOZENDAAL: —and in August a $530 million third coal loader for the Port of
Newcastle. The first stage of Port Botany involves a new 51-hectare terminal at Brotherson Dock North. Four
new berths will be constructed and it is hoped they will be in operation at the end of the decade, in time to cope
with the growing container trade as current facilities approach full capacity. A new railway spur to the terminal
will be constructed, together with two new rail sidings to improve freight logistics. Also to be constructed will
be a dedicated road link from the new terminal directly to the heavy truck route on Foreshore Road.

         Water channelling devices will be incorporated into the design of the new berths to allow a tidal
flushing of Penrhyn Estuary to maintain water quality. More than 100 strict conditions have been attached to the
planning Minister's consent to protect the bay's environmental health and the amenity of local residents. These
conditions cover traffic, noise, estuary management, safety, air and soil quality, waste management and heritage
issues, amongst many others. As I mentioned earlier, a $3 million enhancement fund will also be established.
A fifth berth could be constructed under the second stage of the development application, following an
investigation into the economic and environmental feasibility of three possible locations. It is anticipated that
Sydney Ports Corporation will begin reclamation works next year and complete the expansion by the end of
the decade.
18664                                       LEGISLATIVE COUNCIL                                 18 October 2005


                     INDIGENOUS FISHERS MANAGEMENT FEES STRUCTURE

          The Hon. Dr ARTHUR CHESTERFIELD-EVANS: My question is directed to the Minister for
Natural Resources, Minister for Primary Industries, and Minister for Mineral Resources. Is the Minister aware
that some indigenous fishing families are paying as much as $1,800 in management fees annually? Is the
Minister aware that many indigenous fishing families work in the industry at little more than subsistence level or
to satisfy cultural and ceremonial requirements? Can the Minister inform the House as to how many indigenous
fishing families will be adversely affected by this level of fees and how many will be driven out of an industry
that has so much cultural significance to Aboriginal families, despite assurances by the Minister that this would
not happen as a result of the new fee structure?

          The Hon. IAN MACDONALD: The Government is committed to supporting the involvement of
Aboriginal people in traditional and cultural fishing, and the commercial seafood sector. The Government's
indigenous fisheries strategy recognises the traditional cultural fishing practices of Aboriginal people in New
South Wales. The strategy recognises Aboriginal interests in fisheries management and marine park planning.
The strategy also provided cultural awareness training for Department of Primary Industries staff, encouraged
the involvement of Aboriginal people in aquaculture and provided awareness of the need for Aboriginal access
to fisheries resources for traditional cultural activities.

         The initial phase of the strategy was completed in June 2004. I believe that this strategy significantly
advanced the involvement of Aboriginal people in the fishing sector. Aboriginal fishing issues are continuing to
be progressed by the department's newly created Aboriginal liaison and cultural heritage unit. The department is
currently reviewing the outcomes of the strategy and discussing ways forward with Aboriginal representatives.
A range of positive initiatives is already under way, including the establishment of the department's Aboriginal
reference group, which will promote and provide advice on Aboriginal fishing initiatives. I can assure the House
that I am committed to progressing this and getting on with it in New South Wales.

         We are looking at the fee structure in New South Wales, not only for indigenous fishers but also for the
fishing industry in general. Hopefully, if there are genuine cases of need that the Hon. Dr Arthur Chesterfield-
Evans can give to me, I will be quite happy to look at those specific cases. The problem with the commercial
fishing sector at the moment is not so much due to the fee structure relevant to New South Wales fisheries but
higher fuel prices and competition from imported fish. Just yesterday I met the largest aquaculture fishing
operator in Australia. He produces a world-class product but the competition from imported prawns is
overwhelming. Vannamei prawns are on the market at $8.95 a kilo whereas the Australian product is on the
market at $25 or $26, so there is an enormous differential. The major problem in the fisheries sector is the
volume that is coming into Australia.

        The Hon. Dr Arthur Chesterfield-Evans: You don't know where they are grown.

        Mr Ian Cohen: Imported prawns.

         The Hon. IAN MACDONALD: We know where they are grown. The Australian Quarantine and
Inspection Service is in charge of protecting the health standards of imported food into Australia and it tests
seafood as well as other product. I think only one batch of one particular product failed that test; it had some
anti-bacterial element in it. All following tests have been negative in terms of health issues relevant to the
product. Relying on phyto-sanitary issues to try to defend Australian fisheries against imports is not the way to
go because countries that are developing massive aquaculture farms are putting in the best and latest technology.
[Time expired.]

                                       LEURA RESPITE FACILITIES
         The Hon. JOHN RYAN: My question without notice is addressed to the Minister for Ageing, and
Minister for Disability Services. Did the Minister tell the ABC Stateline program that the closure of respite
services at the Greystanes facility in Leura would be delayed until February next year? Has the Department of
Ageing, Disability and Home Care approved ongoing funding for Disability Enterprises so that it can continue
to offer respite services during this period or is it true that only three families have been offered temporary
funding? What plans has the Minister made to support at least 10 other families living in Orange and Bathurst
who use Greystanes for respite?
        The Hon. JOHN DELLA BOSCA: The Hon. John Ryan referred to Greystanes children's home at
Leura, which is a large residential facility managed by the organisation known as Disability Enterprises Leura.
18 October 2005                              LEGISLATIVE COUNCIL                                               18665


This facility has been included in stage one of the devolution of large residential centres by the Department of
Ageing, Disability and Home Care, a matter he would be quite aware of. Following discussions between the
honourable member for Blue Mountains, the Hon. Bob Debus, and I, it has been decided that Greystanes will
remain open until the end of February 2006 and continue to provide respite services to those families who have
not been able to secure a suitable respite option. During this period I have asked the Department of Ageing,
Disability and Home Care to review the options for people to access respite services following the closure of
Greystanes and report back to me with appropriate alternatives. Funding is currently being finalised to extend
respite at Greystanes to accommodate this decision.

                                                RICE INDUSTRY

        The Hon. TONY CATANZARITI: My question is directed to the Minister for Primary Industries.
Can the Minister inform the House what effect the actions of the Commonwealth Government are having on the
New South Wales rice industry?

         The Hon. IAN MACDONALD: I take no pleasure in updating the House on the latest developments
that will impact on the New South Wales rice industry, one of our State's most successful agricultural sectors.
Today I had the task of announcing that, due to ongoing and unreasonable demands from the Commonwealth,
the New South Wales Labor Government has been forced to deregulate the domestic rice market. This is the last
thing that the Government wants to do, given the potentially devastating effect, but the Federal Government,
which threatened to impose penalty payments on New South Wales of $26 million, forced our hand.

         The National Competition Council has repeatedly made it clear that we will be hit with this massive
penalty if the domestic industry is not deregulated. In fact, the deadline was today. This is a lose-lose position. If
the State Government did not adhere to these demands, taxpayers would be slugged many millions of dollars,
dollars that would find their way into an already bulging Commonwealth purse. On the other hand, if we
implemented full deregulation, the rice industry would be put at risk. So, too, would the jobs of more than 8,000
people in New South Wales, who are employed directly or indirectly by the rice sector.

        The industry is worth some $800 million to the State and national economy each year and makes up
20 per cent of the job opportunities in the Riverina. About 98 per cent of Australia's rice crop is produced in
New South Wales, centred around the towns of Griffith, Leeton, Coleambally, Finley, Deniliquin and Hay. The
communities in our rice-producing districts will certainly and justifiably feel alarmed at this latest development.
The simple fact is that deregulation of the domestic industry is unnecessary and inequitable.

         Under the current arrangements rice grown in this State is vested to the Rice Marketing Board, which
provides a single marketing desk for rice sold both domestically and for export. These arrangements have
proven successful and have helped our rice growers compete against exports from heavily subsidised countries.
The State Government is constantly reviewing and assessing these marketing arrangements and has found no
reason to change them. Indeed, our latest review—the third in 10 years—again found that there were net public
benefits to the current system. Changing these arrangements means we run the risk that deregulated domestic
sales could well find their way into export markets, leading to a drastic undercutting of export premiums.

         The simple fact of the matter is that the Commonwealth has refused to listen. The Premier wrote to the
Prime Minister and implored him to intervene and what was the result? Silence. There was no reply. On any
objective assessment there can be little doubt that we have done everything in our power to protect this valuable
industry. Unfortunately, we have been given no choice in this matter. The New South Wales Government will
immediately begin exploring options with the industry with a view to ensuring as smooth a transition as possible
when deregulation takes effect later next year.

         In the meantime, we will continue to make clear to the Commonwealth our opposition to its bullying
tactics when it comes to competition policy. Already Mr Costello has fined the New South Wales Government
$12.86 million in the 2003-04 financial year for our Poultry Meat Industry Act and has threatened a further
multimillion dollar fine unless we reform the Act to the Commonwealth Government's liking. Decisions like
these have disadvantaged our primary producers and left the taxpayers of New South Wales greatly out of
pocket.

         The rice industry knows how critical this issue is and took an enormously proactive approach. Industry
representatives saw Kay Hull, Peter McGauran and Mark Vaile. They got Nick Minchin down to see first-hand
what a success story the rice industry is. They desperately tried to get the Federal Government to see
some reason. On the contrary, the New South Wales Coalition stood by silently and watched it happen.
[Time expired.]
18666                                       LEGISLATIVE COUNCIL                                 18 October 2005


                                        MINISTERIAL WEB SITES

         Mr IAN COHEN: My question is directed to the Special Minister of State. Why do most Ministers in
this Government not have web sites? Why do Ministers and the Premier not make media releases available on
an up-to-date web site? Is it true that the closest any Minister has to a web site is the "message from the
Premier" on the web site of the Premier's Department, where we find "the Premier's debating challenge", the
"Premier's spelling bee" and the "Premier's reading challenge" but no media releases? Why are ministerial media
releases seldom put in the boxes in the press gallery? Why is the Government so secret with its media releases?
Why is the Government so far behind when it comes to using the Internet, when Federal Ministers, Federal
shadow Ministers and Greens members of Parliament all update web sites regularly with their media releases? Is
the Government not failing in the use of the Internet for openness in government?

          The Hon. JOHN DELLA BOSCA: I am fascinated by the honourable member's question. One day he
criticises the Government because it is too much into spin and putting out too many media releases, the next day
he attacks us because we are putting out media releases and not giving them to people. So one must respond to a
confusing agenda that is being spun out by the Greens and the Hon. Dr Arthur Chesterfield-Evans. I am
surprised that the Deputy Leader of the Opposition is participating in this rather farcical set of questions. The
fact is that the Government maintains a web presence.

        The Hon. Duncan Gay: Where?

         The Hon. JOHN DELLA BOSCA: The Government home page. As Mr Ian Cohen knows, the
Government has been at the forefront of linking most of the valuable government information sites that people
use on an ongoing basis.

        The Hon. Duncan Gay: I have about 20 of his press releases that are not on his site or in the library.
         The Hon. JOHN DELLA BOSCA: I thank the Deputy Leader of the Opposition. The fact is that this
Government has a proud record in relation to the use of the Internet in terms of government information being
provided to constituents in New South Wales who need it. Indeed, this Government has taken a number of
important initiatives. I take this opportunity to remind Mr Ian Cohen and the House of the Government's
broadband initiative, which has stepped in and provided important government-related web services and also
potentially private users of broadband information services around regional New South Wales where the
Commonwealth has failed to do so, although telecommunications are its responsibility.
         I simply do not understand the premise of the member's question. As I said, one day he or one of his
colleagues attacks us because we are putting out media spin, and the next day he attacks us because we are not
putting out enough media spin. I do not know what we are supposed to do to keep the Greens happy. However, I
am prepared to try to keep Mr Ian Cohen happy. I am happy to think through some ways we can satisfy his
concerns, and I will keep him advised about that informally.
                           ABORIGINAL TRUST FUNDS PAYBACK SCHEME

         The Hon. CATHERINE CUSACK: My question without notice is directed to the Special Minister of
State. How much has been paid out to Aboriginal people through the Aboriginal Trust Fund repayment scheme?
Has anybody being repaid his or her stolen wages since 2001?

        The Hon. Dr Arthur Chesterfield-Evans: No, they are thinking about it.

         The Hon. JOHN DELLA BOSCA: We are doing a lot more than thinking about it. As the Hon.
Catherine Cusack would be aware, she is referring to a very sensitive matter: the repayment of wages that were
either confiscated or held in trust for Aboriginal people by the Government in various manifestations. As the
honourable member is aware, that sensitive matter requires a transparent form of administration, a proper basis
for making determinations, an appropriate appeals mechanism and the right people with the confidence of the
indigenous community—and, I might say, the confidence of the community at large—to make those
determinations. I am pleased that three outstanding members of the New South Wales indigenous community
have agreed to act as members of the board that will determine these matters. They are actively reviewing a
number of cases at the moment, and I expect that they will be making determinations in the next few days and
weeks.

[Interruption]
18 October 2005                                      LEGISLATIVE COUNCIL                                                    18667


         I do not know why the Hon. John Ryan is laughing. It is a perfectly sensible set of arrangements. Cases
are under review at the moment by the board. It is a proper process with the right people making the
determinations, and a sensible appeals process will ensure that people are able to achieve justice in relation to
this matter in a timely and transparent way.

         The Hon. CATHERINE CUSACK: I ask a supplementary question. How many people have been
repaid their stolen wages since the process began in 2001?

        The Hon. JOHN DELLA BOSCA: I believe I just gave the honourable member the answer. I refer to
my previous answer.

               DEPARTMENT OF JUVENILE JUSTICE DETAINEE TRANSPORTATION

          The Hon. GREG DONNELLY: My question without notice is addressed to the Minister for Juvenile
Justice. What information can the Minister provide on changes in transport for the Department of Juvenile
Justice in the west of the State?

         The Hon. TONY KELLY: The transporting and court supervision of juvenile justice detainees
requires considerable resources. In the past police officers have been responsible for looking after detainee
movements across the State. It has been the view of the Government that this was not an effective use of the
time of police officers. I am sure that all honourable members would agree that police need to have as much
time as possible to focus on tackling crime. That is why the Government asked the Department of Juvenile
Justice to take over responsibility for the supervision and transport of detainees going to and from court. It is a
win-win situation and the move has been welcomed by police. I am pleased to announce that in the following
regions—Northern and mid North Coast, Sydney metropolitan, Central Coast and, most recently, the western
region of New South Wales—the Department of Juvenile Justice has successfully taken over the transport of
juvenile detainees. When this program was announced in March 2003 Ian Ball from the New South Wales
Police Association said:
         … this initiative further frees up valuable police powers which can be effectively used in providing additional patrols and
         providing a more effective service to the community.

In the last financial year the Department of Juvenile Justice undertook 6,493 movements of detainees. The
handover of the western region transport responsibilities took place from 1 July this year. Since July the
department has undertaken 200 movements of detainees in the west. Many of the journeys are from outlying
areas and take many hours. These are vital hours that can now be spent doing important police work and serving
the community. I am pleased to inform the House that, like the handover in other regions, the assumption of this
responsibility in the western region has been completed smoothly and without problems. I know that the police
in the west of the State have welcomed this initiative. Detective Inspector Mike Willing from Dubbo police was
recently reported in the Dubbo Daily Liberal as saying:

         … significant time and resources go towards transporting detainees and that's a whole car crew that could be going to a job
         somewhere else.

Inspector Willing went on to say:
         We'll notice straight away the difference in having these people available.

To assist the Department of Juvenile Justice to undertake the additional transfers, the Government has purchased
two special security vehicles in addition to the transport vehicles already stationed at the Orana Centre. Four
permanent transport officers, as well as casual staff, have been recruited and trained to operate the service. The
final areas to be taken over from NSW Police are the Riverina and Southern Region, and that will take effect
from July next year. Let me assure the House that departmental staff involved in transporting detainees in every
part of the State have been suitably trained for this added responsibility. I am advised that departmental officers
have replicated the level of security during transport, and the transfer has been seamless. I congratulate the
hardworking officers of the Department of Juvenile Justice and NSW Police on this initiative and its successful
implementation. It is a prime example of the commitment of the Iemma Government to providing the people of
New South Wales with efficient and effective services.

                              PORT BOTANY CONTAINER FACILITY CAPACITY
         Ms SYLVIA HALE: I direct my question to the Minister for Ports. Given that the New South Wales
Ports Growth Plan states that "when Port Botany reaches capacity, Newcastle will become the State's next
container facility", and given that road and rail infrastructure cannot cope with the current demand of
one million containers annually, how will the Minister determine when Port Botany has reached its capacity?
18668                                       LEGISLATIVE COUNCIL                                  18 October 2005


        The Hon. ERIC ROOZENDAAL: The basis for the question is flawed. The problem is that Port
Botany will reach capacity by 2010.

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

         The Hon. ERIC ROOZENDAAL: Now that honourable members have calmed down, I advise that
Port Botany will reach capacity by 2010. Thanks to our announcement, we can extend the life of Port Botany
considerably, up to a maximum of about 3.2 million, perhaps more, twenty-foot equivalent units. That will be
reached in, approximately, 2020. The basic precept is wrong in the sense that we have five years to build Port
Botany. It will not open suddenly tomorrow. It will be a five-year process. As I said earlier, it involves 2,000
construction jobs. This allows the Government plenty of time to work out the appropriate freight infrastructure
strategy to deal with that.

         The Brereton report suggested a number of different strategies to regulate freight. The Opposition and
the Greens are aware of that and other issues in the Brereton report. Professor David Richmond has been
charged with the responsibility of coming up with the appropriate process to deal with the freight issue. As I
said in answer to an earlier question, we have a target of 40 per cent by rail, and I believe that is a target the
Government will work quite hard to reach.

        Ms SYLVIA HALE: I ask a supplementary question.

        The PRESIDENT: Order! I call the Leader of the Opposition to order for the second time. There is it
too much noise. No questions will be answered until members have quietened.

         Ms SYLVIA HALE: Will the Minister explain the rationale for his statement that he will build the
port and then consider how to provide the appropriate infrastructure to deal with the congestion?

          The Hon. ERIC ROOZENDAAL: The honourable member is misleading the House. Let me explain
how logic works. First one determines what one is going to build and then one works out the requirements to
support that development. The Government has made a decision on the expansion of Port Botany. It is a half-
a billion dollar commitment involving 9,000 jobs. It will be five years before it becomes live and is fully
commissioned.

        The Hon. Jennifer Gardiner: You will be out of office by then.

         The Hon. ERIC ROOZENDAAL: How would the honourable member know? I have seen her efforts
today. Look at poor John Ryan sitting there. You should be nice to him. The rest of you rubbed him out. First
one has the development approval and once one knows the size of Port Botany one can factor in what is required
to service the infrastructure appropriately. One does not provide infrastructure without knowing for what one is
providing it.

                                     MOBILE PHONE IMPROPER USE

         The Hon. MELINDA PAVEY: My question is directed to the Minister for Emergency Services. Now
that the Minister's department has advised the media that a mental illness was to blame, will he guarantee to the
House that in excess of $30,000 worth of calls improperly made on a taxpayer-funded mobile phone of a 22-
year-old grade 8/9 employee earning up to $72,000 were not made to sex lines, or from the address of the
employee's mother, and were not made by the employee or his partner at another address?

        The Hon. Amanda Fazio: That is such an old question.

        The Hon. MELINDA PAVEY: It is not. We want guarantees.

         The PRESIDENT: Order! I call the Hon. Melinda Pavey to order.

          The Hon. TONY KELLY: I have been advised of the misuse of a Rural Fire Service mobile telephone
in the possession of a staff member. An independent investigation by the internal audit bureau—which I think it
is part of Treasury—revealed that the excessive bills resulted from the misuse of the mobile by a family member
rather than the employee himself. As a result of the investigation, the staff member concerned has been the
18 October 2005                             LEGISLATIVE COUNCIL                                             18669


subject of disciplinary action. The Rural Fire Service has referred the matter to the Independent Commission
Against Corruption, which was satisfied with the disciplinary action taken by the Rural Fire Service. The Rural
Fire Service has also sought repayment of the inappropriately incurred mobile expenses, and I understand they
are being repaid.

                                      IMMUNISATION OF CHILDREN

        The Hon. AMANDA FAZIO: My question is addressed to the Minister for Health. What is the latest
information on the immunisation of children?

         The Hon. JOHN HATZISTERGOS: This is a timely question, because commencing 1 November a
new immunisation schedule for children will take effect in New South Wales, reducing the number of injections
that young babies will receive from three to two. The change was announced on 10 October 2005 in line with
national guidelines that have introduced new combination vaccines to protect against diseases such as chicken
pox and polio. Data from the Australian Childhood Immunisation Register indicates that more than 90 per cent
of all young people in New South Wales have been fully vaccinated against a range of childhood diseases.
According to the most recent data reported from the register, in New South Wales 90 per cent of two-year-old
Aboriginal and Torres Strait Islander children have been fully vaccinated.

         In 2004 NSW Health successfully implemented a national recommendation to establish an adolescent
school-based vaccination service provision in all New South Wales high schools. This was achieved through the
implementation of the meningococcal C, diphtheria-tetanus-whooping cough, and hepatitis B vaccination
programs. Through the program, a total of 823,197 students were vaccinated against meningococcal C disease,
representing an excellent coverage rate of 74 per cent. Since the completion of the program, there has been a
notable reduction in the incidence of meningococcal C disease in the target age groups. Vaccination against
meningococcal C disease continues through the routine vaccination of infants at 12 months of age.

         During 2004 NSW Health also undertook a diphtheria-tetanus-whooping cough vaccination program in
response to the low immunity in high school aged children and the fact that New South Wales was experiencing
a substantial epidemic, with the highest notification rates in the 12- to 18-year-old age group. This program
represented a world-first outbreak response strategy to eliminate whooping cough in these age groups and
reduce the significant risk of transmission of the disease to young unimmunised infants, with its associated
morbidity and mortality. For example, in the 1996-97 whooping cough epidemic, there were six deaths of New
South Wales infants who were too young to be immunised. Through the program a total of 274,469 students
were vaccinated against diphtheria, tetanus and whooping cough, representing a coverage rate of 59 per cent of
all high school students. A reduction in the whooping cough notifications in the target age groups has been
reported in 2005. No deaths from whooping cough in children have been reported in New South Wales since
2001.

         Another important initiative is the quarterly immunisation service to offer catch-up vaccination to all
students attending our intensive English language schools who may not have received the full complement of
vaccines required for their age. As part of the new schedule, six antigens will be provided in a single injection.
The combined vaccine will protect all infants against: diphtheria, tetanus, whooping cough, hepatitis B,
haemophilus influenzae type B and polio. The new immunisation program schedule includes a free chicken pox
vaccine at 18 months of age for all babies born after 1 May 2004.

         The new program also includes a long-term catch-up component for 12-year-olds who have not
previously received the chicken pox vaccine and who have not had the disease. This part of the program will be
incorporated into the routine high school vaccination program. From 1 November, inactivated polio vaccine will
replace the oral polio vaccine that has been used in Australia since 1966. The inactivated polio vaccine is
included in the new combination vaccines. A comprehensive information kit that details the new vaccines and
ordering procedures has been sent to all general practitioners and other immunisation providers to ensure the
new program commences on 1 November. These high immunisation coverage rates of particularly the young
age group have been sustained in New South Wales for the past few years and have substantially reduced the
incidence of vaccine-preventable diseases. This high coverage protects not only our children, but also the health
of the community by stopping the spread of these debilitating diseases.

                                             SCUBA DIVING FEE

          The Hon. JON JENKINS: My question is directed to the Minister for Primary Industries. With regard
to the discussion paper on the recreational scuba diving tax, will the Government still impose this tax if there is
overwhelming community opposition to it? Will the Government release details of the submissions received?
What guarantee does the diving community have that this money will not be usurped into uses other than that
18670                                        LEGISLATIVE COUNCIL                                  18 October 2005


for which it was originally collected? In view of the intention to proceed with the Cape Byron Marine Park in
the face of complete and absolutely overwhelming community opposition, is there any point in the community
putting in submissions with regard to this issue?

          The Hon. IAN MACDONALD: We will be dealing with this matter toward the end of the year when
the submission phase finishes, I think on 16 December. I have had discussions with a large number of the key
players in the scuba diving industry and I have given them the total assurance that any moneys collected will be
treated in the same way as funds are treated by the recreational fishing trusts—both the saltwater and freshwater
trusts. An industry body will be appointed that is broadly representative of the industry, and it will make the
decisions and determinations as to the expenditure of the moneys collected. The industry is not so much worried
about that aspect. I have had discussions with the industry on that and have given it all the assurances it requires
about the industry being in control of its own money. The honourable member sought to interject to imply that
there was something wrong with the other trusts. There is not. Those trusts operate for the betterment of the
fishing industry. They are the best development, other than the havens, for the recreational fishing industry. The
honourable member might find a few dissidents wherever he looks, but the plain fact of the matter is that those
trusts are overwhelmingly supported. This is demonstrated by the high levels of compliance with the licensing
system.

         Recently I had the opportunity to look at the large number of projects conducted by the recreational
trusts with money collected through the licensing system. I looked at the fish-attracting devices. Wetlands have
been restored in some of our estuaries, including the Clarence, where 34 hectares has been restored in a critical
fish habitat area. We are just about to roll out a program of artificial reefs in Lake Macquarie. More compliance
officers have been appointed and fish stocking programs are under way. All of these things are part and parcel
of the recreational fishing trusts. They are regarded incredibly positively by the recreational fishing industry—so
much so that the previous Leader of the Opposition, Mr John Brogden, indicated earlier this year that the
Coalition would not oppose them in future.

         The Hon. JON JENKINS: I ask a supplementary question. In view of the fact that the Minister has
announced the creation of the scuba-diving version of the Advisory Council on Recreational Fishing [ACORF],
I presume to monitor the expenditure of this trust, will he give a guarantee to the House that he will not bypass
that advisory committee in the same way that ACORF has been bypassed recently?

          The Hon. IAN MACDONALD: ACORF has not been bypassed. It gets to comment on all policy
issues. It has an expenditure committee to consider expenditure decisions.

         The Hon. Jon Jenkins: Abalone?

          The Hon. IAN MACDONALD: Abalone is not a money issue. The trust raises money and spends
money on issues relevant to recreational fishers. It funds hundreds of projects along the coast. Bag limits and
other issues were put forward in the proposals released recently on which we are seeking submissions. It is a
broad document. It is on the Internet and hard copies are available. People will have ample opportunity to look
at it. The documentation is built upon research that shows that in some areas there are problems with fish stocks,
and we have to address them. One of the ways to address them is not just by limiting commercial activity but
also, on occasion, limiting recreational activity that is taking large volumes of fish from our waters. It is a fair
thing but it is open for public consultation. I am not wedded to any particular proposal. After we receive
submissions and look at the evidence we will make a decision. But many leaders in the recreational fishing
industry are clear that they want to ensure that fish stocks survive into the future. So we have to be proactive in
looking at the bag and size limits we need to impose.

          HUNTER REGION HOSPITALS EMERGENCY DEPARTMENT WAITING TIMES

         The Hon. ROBYN PARKER: What does the Minister for Health say to the large percentage of
patients in hospitals in the Hunter region who in July this year waited longer than eight hours at emergency
departments? Does he have answers for the 28 per cent of patients at John Hunter Hospital who waited longer
than eight hours in emergency, the 37 per cent of patients at the Mater hospital who waited longer than eight
hours in emergency and the 11 per cent of patients at Belmont hospital who waited longer than eight hours in
emergency? What is the Minister doing to address waiting times in emergency departments?

        The Hon. JOHN HATZISTERGOS: I answered a question on this issue only last week. If the
honourable member had been listening to the answer I gave on that occasion, she would not be doing what she
18 October 2005                               LEGISLATIVE COUNCIL                                               18671


seems to be doing quite often and that is reading out in this House what she has been given by Jillian Skinner
without exercising what one can in very broad terms—

         The Hon. John Ryan: Point of order: The Minister is debating the question when he is just meant to
answer it.

         The PRESIDENT: Order! The Minister is debating the question, and that is one of two things a
Minister cannot do when answering a question.

        The Hon. JOHN HATZISTERGOS: I was simply referring to the answer I gave. I could just refer the
honourable member to the answer I gave and sit down but I will not. I repeat, as I indicated last week, the
demand for emergency services is on the increase. The emergency department information system recorded
1,516 patient episodes during the 2004-05—

         The Hon. Robyn Parker: How are you meeting this demand? What are you doing about it?

         The Hon. JOHN HATZISTERGOS: Just listen. This was an increase of more than 3,000 patients.
Notwithstanding that, the timely offloading of patients by ambulances at emergency departments has been
improving. In August 2005 the percentage figure offloaded within 30 minutes was 65.8 per cent, with a 4.2 per
cent improvement last month. Ambulances were spending less time waiting to offload patients, and average
waiting times were improving by 18.4 per cent. The emergency departments, which always give priority to the
most life-threatening cases in New South Wales hospitals, continued to treat—

         The Hon. Robyn Parker: Forty per cent waited more than eight hours, though.

          The Hon. JOHN HATZISTERGOS: Just listen. Emergency departments continue to treat 100 per
cent of the most seriously ill within the designated two-minute time frame. The percentage of patients who
waited longer than eight hours in emergency departments to get a hospital bed across New South Wales has
fallen—from 38 per cent in August 2004 to 32 per cent in August 2005. That is, more than 800 patients a week
are getting to their hospital bed from the emergency department in the benchmark time of eight hours compared
with this time last year. These improvements have not come about by accident.

         The honourable member asked what we are doing. These improvements are the result of careful
planning and increased investment by the New South Wales Government. We have opened additional beds and
will open more beds over the coming year. We have invested in technology, rolling out electronic bed board
systems to give hospital administrators realtime information on bed availability. But what we are not going to do
is what the Coalition did when it was in office: close 7,000 beds and downgrade 23 hospitals. Whenever there
was a crisis in health under the Coalition it just closed down the hospitals. It is just as well that the Coalition got
chucked out when it did or there would not be a hospital system left. It was going to close every hospital that
there was a problem with. We are increasing capacity. But, of course, there is a lot more we can do.

         The Hon. Robyn Parker: Would you want to wait eight hours?

          The Hon. JOHN HATZISTERGOS: Another thing that could be done with hospital emergency
departments that would be very useful would be to provide the after-hours clinics to which the Federal
Government originally committed. However, it downgraded the offer after the Federal elections. I am not
criticising the clinicians: they are doing a very good job in the circumstances, treating more patients in reduced
times. To improve the situation further the Coalition should not only support the initiatives that we are taking in
the hospital system but also support the after-hours clinics that the Commonwealth Government committed to
funding. But, as I said, it diluted the offer following the Federal election.
                                           DRUG REHABILITATION
         The Hon. KAYEE GRIFFIN: My question without notice is addressed to the Minister for Health.
What is the latest information on the New South Wales Government's plan to prevent drug abuse and to provide
rehabilitation to victims of drug abuse?
         The Hon. JOHN HATZISTERGOS: Yesterday I was privileged to open the 2005 conference of the
New South Wales Network of Alcohol and other Drugs Agencies (NADA). The New South Wales
Government's partnership with non-government organisations is pivotal in the effective delivery of drug
prevention and intervention programs.
18672                                             LEGISLATIVE COUNCIL                                           18 October 2005


[Interruption]

         I am glad the honourable member gets up early in the morning to listen to me. Since the Drug Summit
of 1999 the New South Wales Government has allocated over $424 million for drug programs focusing on the
four key areas of prevention, education, treatment and law enforcement. This investment is making a difference.
In 2004 the National Drug and Alcohol Research Centre reported that the number of regular heroin users in New
South Wales had dropped by about 58 per cent since 1999—that is, from 48,200 in 1999 to 19,900 in 2002.
More people are now being placed on pharmacotherapy treatment—up from 12,400 places in 1999 to over
16,400 in 2005. We have significantly increased residential rehabilitation beds and inpatient detoxification
services in New South Wales, including 935 residential rehabilitation beds, representing a substantial increase
since 2000, and two new medicated detoxification facilities in the Hunter and Illawarra with an increased
capacity to treat 1,020 extra patients a year.

          This has led to opiate overdose deaths falling from 481 in 1999 to 143 in 2003, a 70 per cent fall since
1999; ambulance call outs to suspected opiate overdoses falling from 3,694 in 2000 to 1,770 in 2003, a 52 per
cent fall since 2000; and emergency department opiate presentations falling from 1,854 in 2000 to about 1,190
in 2003, a 35 percent fall since 2000. Our commitment continues with the opening of two new cannabis
treatment clinics—one in Orange and one in Sutherland—expanding on the successful clinics at Parramatta and
on the Central Coast. These clinics are now operational.

         In July 2005 the Nepean Youth Drug and Alcohol Service at Nepean Hospital was opened to help
young people deal with their substance abuse and other related problems. In some cases it is more effective to
break the drug crime cycle by referring drug offenders to judicially supervised treatment in the community
rather than incarcerating them. In New South Wales more than 7,300 adult and young offenders have been
diverted into treatment to date in programs such as the Adult Drug Court, the Youth Drug and Alcohol Court,
the Magistrates Early Referral into Treatment [MERIT] program and youth residential rehabilitation units at
Dubbo and Coffs Harbour.

          I am pleased to inform the House that the illicit drug diversion initiative, the MERIT program, is being
expanded during 2005-06 to Fairfield, Singleton, and Waverley Local Courts. I am pleased to further inform the
House of some new initiatives that build on our existing partnerships with the non-government sector. The sum
of $225,000 has been granted to NADA to enhance the involvement and capacity of non-government
organisations in the delivery of the MERIT program across the State. The strategy includes two new
initiatives—$350,000 over two years to enhance the information technology [IT] capacity of non-government
organisations and $100,000 over two years to promote greater use of non-government residential rehabilitation
beds in the MERIT program.

[Interruption]

         I am disappointed that the Hon. John Ryan finds so amusing the concept of the drug cycle and the
drugs scourge. He sits there giggling and laughing as though it is a comedy. In a constantly changing world, the
profile of people using drugs is shifting. The 2004 Household Survey reports that recent ecstasy use in New
South Wales has increased. Acknowledging the emerging problem of ecstasy, the New South Wales
Government has introduced into Parliament the Drug Misuse and Trafficking Amendment Bill which, when
passed, will deal with this issue and crack down on the possession, supply and manufacture, of so-called club
drugs. The Government is also finalising its strategy in relation to ecstasy, cocaine and amphetamines.

         The Hon. JOHN DELLA BOSCA: I suggest that if members have further questions they place them
on notice.

                                                 DEFERRED ANSWERS

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

                                       EDUCATION PORTFOLIO ADMINISTRATION


        On 13 September 2005 Ms Lee Rhiannon asked the Minister for Justice, representing the Minister for Education and Training, a
        question without notice regarding administration of the education portfolio. The Minister for Education and Training provided
        the following response:
18 October 2005                                   LEGISLATIVE COUNCIL                                                            18673


               New South Wales government schools are required to develop a school discipline policy in consultation with the school
               community. School discipline policies identify a range of consequences for students who stay away from school without
               permission. These consequences may include withdrawal of privileges, disciplinary interviews and detention. Where
               school attendance is identified as an issue students are also provided with counselling and additional support to address
               underlying issues.

               I was granted leave from 11–18 September 2005. The Minister for Regional Development, the Hon David Campbell MP
               acted as Minister for Education and Training during this period.

                                                 MULTICULTURAL POLICY

       On 13 September 2005 the Hon. Dr Peter Wong asked the Special Minister of State, representing the Premier, a question without
       notice regarding multicultural policy. The Premier provided the following response:

               Following the election of the first Carr Government in 1995, strong steps were taken under the Premier's guidance, to
               address multicultural issues in New South Wales in a systematic manner across the whole of public administration.

               A Green Paper was circulated, which led to the publication of the Government's ground-breaking 1996 White Paper
               entitled Building on Our Cultural Diversity. The 1996 White Paper included the Ethnic Affairs Action Plan 2000.

               The Action Plan 2000 set out the government's ethnic affairs agenda for the following five years, and demonstrated the
               Government's commitment to improving all areas of social, economic, cultural and political life for the culturally and
               linguistically diverse people of NSW.

               The five years following the publication of the White Paper saw considerable progress in the development and
               implementation of multicultural policies.

               The Ethnic Affairs Priorities Statement (EAPS) program was expanded and strengthened, and was supported by a
               Premier's Memorandum (97/7) requiring all NSW public sector agencies to prepare and implement an EAPS.

               In 1997, the then Ethnic Affairs Commission presented the first of its annual reports to Parliament. A reading of these
               annual reports, now called the Community Relations Report, will provide ample evidence of the government's progress
               in addressing cultural diversity issues in NSW, and of the achievements of agencies in providing appropriate and
               culturally sensitive services to their clients.

               In 2000, in response to changes in approaches to multiculturalism, both in Australia and internationally, the Carr
               Government proposed the establishment of the Community Relations Commission. This proposal was supported by
               Parliament and a major piece of legislation, the Community Relations Commission and Principles of Multiculturalism
               Act 2000 was passed.

               Under this legislation, the four Principles of Multiculturalism were enshrined in legislation—a major step forward for
               NSW. These principles provide the basis for public policy involving the promotion and development of leadership and
               community harmony in a diverse society, the provision of access and equity in public services, and opportunities for
               cultural and economic development.

               This progressive and far-sighted legislation, and its implementation, has positioned NSW to respond effectively to the
               challenges that are now facing our community, particularly through the impact of international terrorism and religious
               conflict.

               The publication of a new White Paper entitled Cultural Harmony The Next Decade 2002—2012, laid down the broad
               guidelines for multicultural policy for the following ten years, and particularly highlighted the importance of appropriate
               multicultural services to regional and rural communities.

               An amendment to the Community Relations Commission and Principles of Multiculturalism Act 2000 addressed the
               need to recognise and encourage input to public deliberations and policy-making by our youth with the addition of two
               Youth Commissioners to the Community Relations Commission.

               All these initiatives recognise that two fundamental elements of public policy in a multicultural society are the
               promotion and maintenance of peaceful and harmonious co-existence among people of culturally, linguistically,
               religiously and racially diverse backgrounds, and a responsible public service with effective and equitable service
               delivery.

               In order to further progress the Government's record in multicultural policy and delivery, I have requested the
               Community Relations Commission to prepare a comprehensive policy regarding the EAPS program, and how it applies
               to NSW society and the public sector.

                                     CROSS-CITY TUNNEL AND ROADS CLOSURES

       On 13 September 2005 the Hon. Dr Arthur Chesterfield-Evans asked the Minister for Finance, representing the Minister for
       Roads, a question without notice regarding the cross-city tunnel and road closures. The Minister for Roads provided the
       following response:


               I am advised of the following:


                        1.      The traffic changes associated with the cross city tunnel were determined through a public process in
                                2002, and set out in the planning approval for the project which was publicly released in 2002.
18674                                              LEGISLATIVE COUNCIL                                               18 October 2005


                         2.      The agreement with the tunnel operators sets out the contractual and financial arrangements entered
                                 into by the RTA.

                         3.      The agreement was only finalised when planning approval was given and—as far as traffic changes
                                 go—merely reflects that approval.

                         4.      A complete copy of the 300 page agreement between the RTA and Cross City Motorway was provided
                                 to the Legislative Council in July 2003.

                         5.      All of the project deed, with some limited exceptions, is available for inspection by any member of the
                                 public.

                         6.      Information which is commercially sensitive to Cross City Motorway Company has been kept
                                 confidential following a decision by an independent arbiter, Sir Laurence Street.

                         7.      The contractual provisions dealing with the RTA's obligations with regard to traffic changes are
                                 available for anyone to see.

                         8.      Aside from all of the abovementioned publicly-available documents, information on traffic changes is
                                 also readily available on the RTA website—www.Ita,nsw.gov.au.

                                                SCHOOL SECURITY FENCING

        On 14 September 2005 the Hon. Michael Gallacher asked the Special Minister of State, representing the Minister for Education
        and Training, a question without notice regarding school security fencing. The Minister for Education and Training provided the
        following response:

                On 11 February 2003, the Government announced its Safer Schools Plan. Included in the plan was a commitment to
                provide security fencing to at least 200 more schools in New South Wales by 2007 at a total cost of $20 million.

                An allocation of $6 million has been provided for the installation of security fencing in schools during 2005/2006. The
                schools which will receive security fences have been announced and are available on the Department of Education and
                Training's website at www.det.nsw.edu.au.

                Where loss or damage is experienced by schools as a result of vandalism or arson attacks, the Treasury Managed Fund
                provides insurance services for the Department of Education and Training.

                The Government will fence the 118 schools that were specifically mentioned in the Safer Schools Plan, as well as other
                schools that are identified through a comprehensive risk assessment process, to meet its commitment in the Safer
                Schools Plan.

                The Department's Safety and Security Directorate regularly monitors the frequency and magnitude of security breaches
                that are reported by schools and provides onsite risk assessments where it is deemed necessary. Schools are also
                provided with advice on strategies to reduce the risk of security incidents.

                Depending upon the level of risk that is assessed, a school may be recommended for the provision of a variety of
                security measures such as a security fence, an alarm system or a closed circuit video surveillance system.

           FORMER AUSTRALIAN LABOR PARTY OFFICIAL NEVILLE HILTON SENTENCE REDUCTION

        On 14 September 2005 the Hon. Dr Peter Wong asked the Special Minister of State, representing the Attorney General, a
        question without notice regarding the sentence reduction of former Australian Labor Party official Neville Hilton. The Attorney
        General provided the following response:

                The Court of Criminal Appeal (CCA) allowed the appeal because the sentences offended the principle against "double
                punishment" of one episode of criminal conduct. The CCA's re-sentencing means that Mr Hilton will serve 14 months of
                a two-year sentence before being eligible for parole. The Court did not reduce the sentence because of Mr Hilton's
                position in the community.

                The Director of Public Prosecutions has advised that there are no prospects of a successful High Court Appeal.
                Therefore I will not appeal this decision nor refer the matter to the NSW Law Reform Commission.

                                    INNER CITY SCHOOLS REDEVELOPMENT LOANS

        On 14 September 2005 the Hon. Catherine Cusack asked the Special Minister of State, representing the Minister for Education
        and Training, a question without notice regarding inner city schools redevelopment loans. The Minister for Education and
        Training provided the following response:

                I am advised that the Revitalisation of Inner Sydney Schools (RISS) Program provides for the redevelopment of
                secondary schools within the inner Sydney area to accommodate changes in school demographics. The strategy allows
                schools to refocus their roles as secondary education providers within Sydney and to provide a wider curriculum choice
                for students.

                This strategy is in addition to the Department of Education and Training's ongoing capital works and services provision.
                Accordingly, to enable the RISS Program to be implemented, the Department received advance funding from Treasury.
                The Department is being charged interest on the advance and the rate is consistent with the average borrowing cost of
                the Crown.

                The repayment of the capital advance and associated interest is funded through the disposal of surplus school sites.
18 October 2005                                    LEGISLATIVE COUNCIL                                                            18675



               The total construction cost associated with the RISS strategy is estimated at $109.5 million. As the construction has, to a
               large extent preceded asset sales, the Crown Finance Entity has provided advances as required. To date the Department
               has drawn down $92.6 million with $26.9 million being repaid.

               In 2004–05, asset sales of $16.9 million were completed to reduce the balance of borrowings to $65.8 million. These
               asset sales related to surplus sites at Birmingham Gardens, Broken Hill, Charlestown, Cootamundra, Graman, Grose
               Wold, Lemon Tree Passage, Martinsville, Narwee, Nyngan, Summer Hill Creek, Tamworth, Ultimo Vineyard, and
               Walcha.

               As a result of community consultations and Local Government rezoning, the projected sale of the former Peter Board
               and Beacon Hill High Schools has been rescheduled to 2005–06. This means that some $46 million of the $57.0 million
               in asset sales projected for 2004–05 has been carried forward to 2005–06.

               This had no impact on the other elements of the Department's capital program.

               Interest payments amounted to some $3.5 million and were financed from the Department's cash holdings pending the
               sale of assets, which are to fully support the RISS Program.

                       ADMINISTRATIVE DECISIONS TRIBUNAL CONFIDENTIAL AFFIDAVIT

       On 22 September 2005 the Hon. John Tingle asked the Special Minister of State, representing the Attorney General, a question
       without notice regarding an Administrative Decisions Tribunal confidential affidavit. The Attorney General provided the
       following response:

               A confidential affidavit contains material that a party to proceedings claims is confidential. An example is when a
               government agency claims that information contained in cabinet papers is not subject to the disclosure requirements in
               the Freedom of Information Act 1989.

               The purpose of section 75(2)(d) of the Administrative Decisions Tribunal Act 1997 is to allow the Tribunal to review
               material that a party claims is confidential. If the Tribunal decides that no reason of policy or law prevents disclosure of
               information that a party has claimed is confidential, the affidavit in which it is contained is declared non-confidential.

               Parties in the Tribunal usually claim confidentiality of information in FOI proceedings. Other circumstances in which
               confidentiality may be claimed include matters involving children or protected persons. In such cases the Tribunal takes
               into account procedural fairness and other factors in its determination.

               If the Tribunal upholds the confidentiality of information in an affidavit, the other party to proceedings is unable to
               review or make submissions on the information, or cross-examine a person about the evidence.

               The Tribunal will only declare information confidential if it is satisfied that for reasons of policy or equity, the
               information ought not to be disclosed. The Tribunal is careful to observe rules of natural justice but is required, in
               specific circumstances, to balance the general right of access to information against the requirements of policy or law.

               I do not consider that the Tribunal's policy or practice is inappropriate and do not propose to re-examine the effect of
               section 75 of the Act.

       Questions without notice concluded.
                            COMMITTEE ON CHILDREN AND YOUNG PEOPLE

       The PRESIDENT: I report the receipt of the following message from the Legislative Assembly:
       MADAM PRESIDENT

       The Legislative Assembly informs the Legislative Council that it has this day agreed to the following resolution:

       That Michael John Daley be appointed to serve on the Committee on Children and Young People in place of Barry Joseph
       Collier, discharged.

       Legislative Assembly                                                                                                JOHN AQUILINA
       18 October 2005                                                                                                           SPEAKER

     COMMITTEE ON THE OFFICE OF THE OMBUDSMAN AND THE POLICE INTEGRITY
                                 COMMISSION
        The PRESIDENT: I report the receipt of the following message from the Legislative Assembly:
       MADAM PRESIDENT

       The Legislative Assembly informs the Legislative Council that it has this day agreed to the following resolution:

       That Steven John Chaytor be appointed to serve on the Committee on the Office of the Ombudsman and the Police Integrity
       Commission in place of Noreen Hay, discharged.

       Legislative Assembly                                                                                                JOHN AQUILINA
       18 October 2005                                                                                                           SPEAKER
18676                                                LEGISLATIVE COUNCIL                                               18 October 2005


                     CRIMINAL PROCEDURE AMENDMENT (PROSECUTIONS) BILL

                                                         Second Reading

         The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Commerce, Minister for
Industrial Relations, Minister for Ageing, Minister for Disability Services, Assistant Treasurer, and Vice-
President of the Executive Council) [5.06 p.m.]: I move:

        That this bill be now read a second time.

As the second reading speech is lengthy and has already been delivered in the other place I seek leave to
incorporate it in Hansard.

        Leave granted.

        The Government is pleased to introduce the Criminal Procedure Amendment (Prosecutions) Bill 2005.

        The Bill proposes amendments to the Criminal Procedure Act 1986 to ensure that all prosecutions conducted on behalf of the
        Director of Public Prosecutions are recognised as valid, and that the signing of an indictment by a private barrister who is acting
        on behalf of the DPP, does not make invalid the proceedings based on that indictment.

        The Bill is brought forward as the result of the Court of Criminal Appeal's decisions in the cases of The Queen v Halmi and The
        Queen v Janceski. Those decisions were handed down in February and August 2005. Those cases decided that, where a private
        barrister was retained by the Director of Public Prosecutions (DPP) to conduct a prosecution on the DPP's behalf, and that private
        barrister signed an indictment upon which a trial was then held, the indictment was invalid and so the trial was a nullity. The
        reason for the invalidity was that the indictments did not comply with the technical requirements of s 126 of the Criminal
        Procedure Act which regulates who may sign indictments.

        This technical invalidity arose even though the defendants and their legal representatives were well aware that the DPP had
        retained a private barrister to prosecute on his behalf, and they were well aware of the actual case against the defendants. Both
        trials were fair.

        This Bill corrects any difficulties that might arise from the technical invalidity that was found in the decisions of Halmi and
        Janceski. It does so in two ways.

        Firstly, the Bill amends section 16 of the Criminal Procedure Act. Section 16 is the section of the Criminal Procedure Act which
        provides that indictments are not void or invalid for certain technical defects—for example, for mistating any co-accused's name,
        for failing to specify the exact value of any property, and things of that nature. The Bill adds to the existing list in section 16 a
        further item: that an indictment is not invalid merely because a legal practitioner who signed the indictment did not have an
        authorisation in writing from the DPP to sign indictments on his behalf, provided that the legal practitioner was instructed by the
        DPP to conduct those criminal proceedings.

        Secondly, the Bill contains transitional provisions that clarify that all indictments signed and laid before the Court on behalf of
        the DPP in the past, and all proceedings conducted on those indictments, are valid. However, the Bill does not improperly
        interfere with decided cases of the Courts. It does not interfere with the decisions of the Court of Criminal Appeal that Mr Halmi
        and Mr Janceski should have a re-trial.

        I will now turn to the detail of the Bill.

        Proposed section 2 provides that once passed and proclaimed, the Bill is deemed to have commenced on the day that the Bill was
        first introduced into Parliament. This provision is consistent with the intention of the Bill that all indictments signed by a legal
        practitioner on behalf of the DPP should be validated, but that existing Court decisions should not be interfered with. Section 2
        prevents any further decisions from being made from this day forward, that would invalidate any indictment presented on behalf
        of the DPP merely because of the signature that appears on the indictment.

        Schedule 1 of the Bill inserts a new paragraph (i) into section 16(1) of the Criminal Procedure Act. That new paragraph provides
        that no indictment is bad, insufficient, void, erroneous or defective for failure of the DPP to authorise a legal practitioner in
        writing to sign any indictment that is presented on his behalf, provided that the legal practitioner was instructed to prosecute the
        case on behalf of the DPP.

        The transitional provisions of the Bill, which are also contained in Schedule 1 of the Bill, insert new clauses 46 and 47 into
        Schedule 2 of the Criminal Procedure Act. Those clauses provide that all indictments presented at any point in the past—from the
        date of creation of the office of the DPP, up until the date that this Bill was introduced into Parliament—are validated, where they
        were presented in the circumstances set out in the new section 16(1)(i) of the Criminal Procedure Act. Those circumstances are
        where the indictment was signed by a legal practitioner who had been instructed to conduct proceedings on behalf of the DPP,
        but the legal practitioner was not authorised under section 126 of the Criminal Procedure Act to sign indictments.

        The proposed clauses 47(2) and 47(3), make clear that such indictments are valid, and all proceedings related to such indictments
        are valid.

        Clause 47(4) contains the rule that nothing in the transitional provisions, does anything to overrule any existing judgment or
        order of a court. Put simply, the decisions of the Court of Criminal Appeal in Halmi and Janceski stand, but the gate will be
        closed. No more appeals will be able to be brought forward on the technical grounds argued in those cases.
18 October 2005                                       LEGISLATIVE COUNCIL                                                         18677


         This Bill will preclude, once and for all, any appeal against conviction following successful prosecution by the DPP, based on the
         purely technical ground that the indictment was not signed by a person with the proper authority to sign indictments.

         I commend the Bill to the House.

         The Hon. DAVID CLARKE [5.06 p.m.]: The Opposition does not oppose the Criminal Procedure
Amendment (Prosecutions) Bill. Its purpose is to amend the Criminal Procedure Act 1986 so as to ensure that all
prosecutions conducted on behalf of the Director of Public Prosecutions [DPP] are recognised as valid, and that
the signing of an indictment by a private legal practitioner acting on behalf of the DPP is not made invalid
simply because the DPP failed to authorise the legal practitioner to sign indictments. This bill is made necessary
because of the decision of the Court of Criminal Appeal in the Case of The Queen v Halmi handed down in
February 2005 and its decision in the case of The Queen v Janceski handed down in August 2005.

         In both cases the Court of Criminal Appeal held that the indictment signed by the private barristers
instructed to prosecute the offences on behalf of the Director of Public Prosecutions were invalid unless the
Director of Public Prosecutions had also expressly authorised the barristers by order in writing under section
126 of the Criminal Procedure Act to sign the indictments. There is no suggestion that either case was conducted
unfairly or improperly. The Court of Criminal Appeal held that because of a technical breach of section 126 of
the Criminal Procedure Act the indictments were invalid and both trials were therefore a nullity.
         The effect of the bill will be to amend the Criminal Procedure Act 1986 to validate indictments of the
kind that were held invalid in the cases of The Queen v Halmi and The Queen v Janceski and the criminal
proceedings that related to such indictments, and to provide that a failure by the DPP to authorise a private legal
practitioner prosecuting a matter on the DPP's behalf to sign indictments does not make an indictment signed by
the practitioner bad, insufficient, void, erroneous or defective. It should be noted that the relevant period for the
purposes of the provisions of the bill before us is the period commencing 13 July 1987, which is the day on
which the Criminal Procedure Act 1986 commenced, and ending immediately before the day on which the
Criminal Procedure Amendment (Prosecutions) Bill was first introduced into Parliament.
         The bill makes clear that these new provisions will not operate to invalidate any indictments or criminal
proceedings that have already been held to be invalid or a nullity in a judgment, order or other decision of a
court before the day on which this bill was first introduced into Parliament. Hence this bill will not affect the
decision of the Court of Criminal Appeal that both Mr Halmi and Mr Janceski should be granted a retrial.
         Reverend the Hon. FRED NILE [5.09 p.m.]: The Christian Democratic party supports the bill, which
amends the Criminal Procedure Act 1986 to validate certain indictments that have been held to be invalid, and
provides that a failure by the Director of Public Prosecutions to authorise a private legal practitioner prosecuting
a matter on the DPP's behalf to sign indictments does not make an indictment signed by the practitioner bad,
insufficient, void, erroneous or defective.

         Under section 126 of the Act an indictment must be signed by the Attorney General, the Solicitor
General or the Director of Public Prosecutions [DPP], or for and on behalf of the Attorney General or the DPP
by a Crown Prosecutor, a Deputy Director of Public Prosecutions or a person authorised by order in writing by
the DPP to sign indictments for and on behalf of the DPP. In the recent decisions of the Court of Criminal
Appeal in Regina v Halmi and Regina v Janceski the court held that indictments signed by barristers at the
private bar instructed to prosecute offences on behalf of the DPP were invalid unless the DPP had also expressly
authorised the barristers by order in writing under section 126 to sign the indictments.

          Obviously the DPP and the Attorney General had overlooked the fact that they had not ensured that the
barristers had been authorised in writing, under section 126, to sign the indictments. The bill will validate all
former indictments that authorised a barrister but were not signed under section 126. The danger is that if this
bill is not passed there could be further appeals against other indictments and they would be ruled invalid, as
happened in the Halmi and Janceski cases. The bill is unusual because it is retrospective and we do not have
many retrospective bills. The Legislation Review Committee made an important point about that aspect in its
report on the bill. It stated:

         The Bill has retrospective application in that:

         •        it provides that the amendments to the Act are taken to have commenced on the date the Bill was introduced into
                  Parliament; and

         •        it validates indictments and criminal proceedings previously invalid apart from those that were held to be invalid or a
                  nullity in the judgment, order or other decision of a court before the Bill's deemed commencement.
18678                                              LEGISLATIVE COUNCIL                                              18 October 2005


The committee was concerned to identify any retrospective provision that may adversely impact upon any
person. It stated further:

        As the retrospective validation of proceedings in the circumstances does not operate unfairly against any person, the Committee
        does not consider that Schedule 1 [3] trespasses unduly on personal rights and liberties.

The bill deals with a technical matter. Obviously we do not want to see a technical breach lead to the overthrow
of cases that have been heard in the courts, so it is very important that the bill be passed. We know that
defending barristers look for such loopholes or errors so they can win their cases in the Court of Criminal
Appeal. It is therefore important that we pass this legislation, and the Attorney General and the Director of
Public Prosecutions must be alert in ensuring that such omissions do not occur in the future.

        Ms LEE RHIANNON [5.13 p.m.]: The Greens do not support the Criminal Procedure Amendment
(Prosecutions) Bill. To underline the point, I will begin by quoting Justice Kirby in the case of Regina v Birlut:

        Criminal procedure in our tradition is generally strict. The peril of liberty and the risk to reputation have imposed on criminal
        trials over the centuries a rigorous discipline so that procedural requirements are strictly complied with in the defence of the
        regularity of criminal process and the acceptability of its outcome … The fact that a point may be "technical" is irrelevant. The
        strict application of the rule of law in criminal proceedings is the essence of the way in which, in our legal system, courts have
        defended due process.

The bill has been introduced as a result of two decisions of the Court of Criminal Appeal in February and
August this year. The cases decided that, where a private barrister was retained by the Director of Public
Prosecutions [DPP] to conduct a prosecution on the DPP's behalf, and the private barrister signed an indictment
upon which the trial was then held, the indictment was invalid and so the trial was a nullity. The reason for the
invalidity was that the indictments did not comply with the technical requirements of section 126 of the
Criminal Procedure Act, which regulates who may sign indictments.

          The bill amends the Criminal Procedure Act to provide that indictments are not void or invalid for
certain technical defects. It provides that an indictment is not invalid merely because the legal practitioner who
signed the indictment did not have an authorisation in writing from the DPP to sign indictments on his behalf.
The problem is that the Government is relying on the law to get around sloppy indictments. The law is not what
needs to change; what needs alteration is procedures within the Office of the DPP so that this kind of thing does
not happen again.

         What has happened in these two cases before the court is slack process, which should not be allowed in
relation to serious criminal offences. By allowing this amendment, such slackness will be encouraged, rather
than discouraged. It may be that the DPP needs more funding so that it does not have to rely on private barristers
to do its work. Perhaps it needs better resources so that more time can be spent ensuring delegation is done
properly and procedures are followed. Given the very important nature of criminal indictments, it is critical that
the DPP personally authorise a particular person to sign an indictment. This is already provided for by section
126 (2) of the Act.

         The real risk is that in future there will be a DPP less independent than there is now, who is flooded
with work and increasingly dependent on private lawyers. By loosening the laws around the indictment
procedure, the Government is setting a dangerous precedent. Our criminal justice system is a very important
bastion of democracy. Procedure around it should be eroded only if there are extremely good reasons for doing
so. Sloppiness on the part of private barristers employed by the DPP is not good enough reason. What the DPP
may need is more resources to ensure that sloppiness does not become part of its work. Clearly, changing the
laws is not what is required here.

         The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Commerce, Minister for
Industrial Relations, Minister for Ageing, Minister for Disability Services, Assistant Treasurer, and Vice-
President of the Executive Council) [5.17 p.m.], in reply: I thank honourable members for their comments, and I
commend the bill to the House.

        Motion agreed to.

        Bill read a second time and passed through remaining stages.
18 October 2005                              LEGISLATIVE COUNCIL                                             18679


               CRIMES AMENDMENT (ROAD ACCIDENTS) (BRENDAN'S LAW) BILL

                                                 Second Reading

         Debate resumed from an earlier hour.

         Ms LEE RHIANNON [5.19 p.m.]: Before question time I was going through some very useful
comments made by the Legislation Review Committee. The essence of my remarks was that the committee has
drawn attention to serious problems with this bill and has asked the Attorney General to comment. The bill is
being rushed through the House and we have not received that comment. I raised that matter in debate and also
directly with the Minister who has carriage of the matter in this place, and others associated with the bill.

         It appears that a response to the Legislation Review Committee has now been drawn up. I acknowledge
that I have been given a copy of the draft response, but it is clear that it has been drawn up very quickly—
probably during question time and probably because I asked for it—and I reiterate that this is no way to handle
important legislation in this House. From what I understand, these two pages of advice—which have just come
through and are still in draft form—have not been seen by anybody but me. I will be quite honest: I have not
been able to digest the draft response fully, so I am not in a position to share it with members of the House. The
Opposition did not attempt to ensure that the response was before the House before a decision was made; it was
willing to sign off on it without getting the information. Both Government and Opposition members of the
Legislation Review Committee said they believed it was necessary to get a response from the Attorney General,
but they have not followed that through.

         This has been an appalling process. The Legislation Review Committee, which is usually very
conservative and cautious, identified the need for this advice, but it is tragic that nobody sought to ascertain
whether the advice had been received. The way the Government and the Opposition work on these law and
order matters is completely farcical, but we know that the legislation is about to go through. If the dangerous
offences part of the legislation goes ahead the Government says it will conduct an education campaign aimed at
informing drivers of these new offences and their responsibilities.

         As these very serious offences apply to people irrespective of age, this campaign needs to be substantial
and ongoing, and it should not only be directed at drivers. I say that because we should remember that the driver
involved in the tragic death of Brendan Saul, which precipitated this bill, was only 15 years old. The Greens
believe the Government should undertake a broad community education campaign that also targets young
people who may not yet hold a licence, as they too can be caught by these new and very serious offences. One
would think that is about the best that could be redeemed considering the way this legislation has been debated
in this House. I hope the Government will give a commitment to undertake such an extensive education
campaign, because once again very serious legislation is being rushed through the House and I do not think
members on either side have a handle on what is going on. They have once again put a tick in the box because it
is another tough piece of legislation. It is a sad when business is conducted in that way.

          The Hon. CATHERINE CUSACK [5.23 p.m.]: The Crimes Amendment (Road Accidents)
(Brendan's Law) Bill introduces tougher penalties for drivers who are guilty of fleeing the scene of a motor
accident without rendering assistance to injured or dying victims. This sickening offence deserves the toughest
possible penalty. The bill increases the maximum penalty to 7 years in the case of an accident that causes
grievous bodily harm and to 10 years in the case of an accident that causes death. As happens all too often, this
bill arises from a bungled case that puts the spotlight on dramatic weaknesses or inadequacies in the law.
          This case is particularly tragic, and I know it has upset and angered most of the citizens of New South
Wales. It is a sad story. Nine-year-old Brendan Saul was killed in January last year by a young offender—
known to the police and to many people in the Dubbo community—who was believed to be under the influence
of drugs at the time. Young Brendan and his brother were riding their bikes on a back street in Dubbo when the
accident happened. The driver of the vehicle—who I would dearly love to name but cannot because of his age—
fled the scene of the accident and hid in a house. When the authorities eventually located and arrested this young
man and his three accomplices, they lied to police in a further attempt to avoid responsibility for young
Brendan's death. When the lie was eventually uncovered there were further legal hurdles in obtaining evidence
of culpability, and ultimately the process took so long that the evidence was effectively lost. Such evidence of
culpability could have been obtained by a timely drug test.
         I have met Kevin and Patsy Saul and I have watched their older son play cricket. They are a wonderful
family; the best family that any Australian child could want. It is impossible for any of us to share with the Sauls
18680                                        LEGISLATIVE COUNCIL                                   18 October 2005


the full meaning and depth of this tragedy, but it is possible—indeed, it is essential—that we are all moved by
such waste and despair and accept that it is our job to respond appropriately. This is why my colleague Mr
Andrew Tink, the shadow Attorney General, moved in another place an amendment to include the words
"Brendan's Law" in the title of this bill. That reminds us how vital this legislation is. Kevin Saul must be
commended because in the worst of circumstances he has worked tirelessly to perform a service to the
community and to pay tribute to Brendan's memory. We are all greatly indebted to him. He is a fine,
compassionate and reasonable man who has my full admiration and respect.

         I note the comments of the Hon. Dr Arthur Chesterfield-Evans and Ms Lee Rhiannon, who are both
concerned with the rights of offenders. The problem with the current position, however, is that it almost
exclusively preserves the rights of offenders to complete exclusion at the expense of the victims. Brendan Saul
is dead and there can be no justice for him. But there can be justice for his family and the community. This bill
is but part of a package of reforms that include changes to the evidence Act to prevent a repeat of the dreadful
situation in which Brendan's post mortem photographs were retained by the young offender in custody and
displayed by him as some sort of trophy for his crime. This loophole in the law has thankfully already been
corrected.

          The second issue of leaving the scene of an accident is addressed by this bill. A third issue relates to
drug testing procedures, which is at times sensitive but is subject to excessive legalism and red tape. The fourth
issue is that of judicial accountability. I am sorry to say we have in Dubbo a magistrate who is not so much
impervious to community standards as he seems to be challenging and dissenting from the expectations of the
Parliament and the citizenry. The result is a catastrophic crisis of confidence in the justice system. I have studied
it for some time and assure the House my comments are not superficial or knee-jerk reactions. This magistrate
appears to relish the dismay he is creating in the Dubbo community. In my view he is undermining faith and
belief in the justice system and is almost alone in his campaign to overlook criminal behaviour, repeat offending
and the lack of remorse in many of the offenders who come before him. He constantly errs in their favour, and at
the expense of justice.

          The situation in Dubbo has gone so far as to be unique. In my view it is a disgrace. When the law is
brought into disrepute in this way, the interests of the entire community, including victims of crime and even the
offenders themselves, are jeopardised. I welcome the reforms contained in the bill today. They mean a micron of
good can come from this awful tragedy. It removes a ridiculous situation where offenders fleeing the scene of
their crimes are rewarded with lower penalties. It provides a deterrent for flight. However, this legislation needs
to be followed up.

         The Government needs to publicise and promote awareness of this law to ensure that it will be effective
as a deterrent and, therefore, lead to greater assistance being rendered at accident scenes. This, in turn, will save
lives, which is obviously a very good thing. However, this effort will be for nothing if steps are not taken to
ensure the implementation of the legislation to allow appropriate penalties to be applied in appropriate
circumstances. That is not the case in Dubbo at the moment and everybody knows it. We are all looking to the
Attorney General to take meaningful steps to rectify this problem otherwise the bill, which is after all only
words on paper, will stay just that—words on paper.

         The Opposition moved the amendment to incorporate Brendan Saul's name to demonstrate our focus
and the strength of our purpose in supporting the legislation, but I say to the Government: Follow through. Fulfil
the high expectations of Brendan's family and the Dubbo community. Keep the promises and give no more
excuses. Show resolve for justice and only then will this legislation fulfil its meaning and be more than that just
simply words on paper.
         The Hon. HENRY TSANG (Parliamentary Secretary) [5.30 p.m.], in reply: I thank honourable
members for their contributions to the debate. The Government is always vigilant to ensure that the most
vulnerable in the community have their interests protected. There is no question about the vulnerability of those
seriously injured in road collisions; they are dependent on the assistance of others. When a driver leaves the
scene of an accident, leaving in his or her wake a dead or badly injured person without attempting to render
assistance, the fundamental code of a civilised society is breached.
         The law should not offer any incentive to drivers to fail to comply with their duty. It should not allow
any advantage to accrue to those who evade their duty and perhaps criminal responsibility for their actions. The
measures contained in the bill are a clear and unambiguous statement of the seriousness with which the
community views the dereliction of duty by drivers who flee accident scenes with callous disregard for seriously
injured victims.
18 October 2005                                       LEGISLATIVE COUNCIL                                                          18681


         I turn to the specific issues raised by the Hon. Dr Arthur Chesterfield-Evans, who asked why there was
an objective test for such a serious offence? It is unusual for an offence carrying seven or 10 years imprisonment
to include a mental element as to what a person ought reasonably have known. However, in special and
extraordinary circumstances that is warranted. Other serious offences, such as manslaughter and dangerous
driving occasioning death or grievous bodily harm, incorporate a mental element with an objective test.

         A "fail to stop and assist" offence may be committed in isolated places without witnesses by drivers
who are attempting to evade criminal responsibility for their actions. When a person is injured and the driver
keeps on driving, there should be no argument as to what he or she knew; objectively a person ought reasonably
to have known that death or grievous bodily harm would result from the collision. The circumstances in which
the offence may be committed and the serious consequences to life and health are extraordinary circumstances
that warrant the test.

         The Hon. Dr Arthur Chesterfield-Evans also asked about the position of a driver who has a mental or
psychological incapacity or is very confused. The same position applies to the offence of dangerous driving
occasioning death or grievous bodily harm. A person is criminally liable unless his or her act was not voluntary
or conscious. Mitigating factors falling short of an excuse may be taken into account by the court in determining
penalties. I thank Ms Lee Rhiannon for acknowledging the Government's education campaign. She questioned
whether the onus to render "all necessary assistance" should, instead, be to render assistance that is reasonable in
the circumstances. The phrase "necessary assistance" allows for a wide variety of individual facts and
circumstances to be taken into account in determining what is necessary. The bill also uses the important
limiting words that the assistance required of the driver must be assistance which is in his or her power to give.

          Ms Lee Rhiannon also asked why the new penalties should apply where a person may not be
responsible for the collision. The new penalties only apply in the case of very serious collisions where death or
grievous bodily harm is occasioned. Some drivers flee to avoid prosecution and penalties for dangerous driving
offences. Offences must apply where criminal responsibility for dangerous driving cannot be proved, perhaps
due to the action of a driver in fleeing. However, a range of safeguards ensures that consequences are
appropriate to the facts and circumstances of each case, for example, police discretion to charge an offender
with the new indictable offences or under the existing summary offences. The prosecution has discretion to elect
to proceed on indictment or prosecute at summary level and the full range of sentence options is available to the
court in sentencing. I commend the bill to the House.

         Motion agreed to.

         Bill read a second time and passed through remaining stages.

                                                 BUSINESS OF THE HOUSE

                                                     Postponement of Business

         Government Business Order of the Day No. 11 postponed on motion by the Hon. Henry Tsang.

                                                      DEFAMATION BILL

                                                          Second Reading

         The Hon. HENRY TSANG (Parliamentary Secretary) [5.38 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 Defamation Bill 2005 will repeal and replace the Defamation Act 1974.

         Before I proceed to outline the bill's main provisions, I would like to spend a few moments reflecting on the vital role defamation
         law plays in our society.

         There are basically three groups who find defamation law incredibly interesting and exciting. They are public figures, major
         broadcasters and publishers and, of course, lawyers. The reason they get so excited is that they are usually the main protagonists
         and may stand to win, lose, or earn hundreds of thousands of dollars out of defamation cases.
18682                                                 LEGISLATIVE COUNCIL                                                   18 October 2005


        The rest of the community could be forgiven for thinking that defamation law is largely irrelevant and does not impinge on day-
        to-day life in any meaningful way. But such a view would be profoundly mistaken. Put simply, defamation concerns the
        publication of material to a third person that harms the standing or reputation of another. Anyone who writes a letter or a book,
        uses email, chats over the Internet, or publishes a blog can potentially face an expensive civil suit if they are careless with their
        comments.

        Defamation law is the point at which two very important interests intersect. On the one hand is society's interest in freedom of
        expression, and the other is the individual's interest in protecting his or her reputation from unwarranted attack.

        Both these interests are recognised in a host of international instruments, including the International Covenant on Civil and
        Political Rights.

        Article 17 of this Covenant states that no one shall be subjected to "… unlawful attacks on his honour and reputation" and
        "everyone has the right to the protection of the law against such … attacks"

        Article 19 of the International Covenant on Civil and Political Rights states that:

        Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information
        and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of
        his choice.

        Article 19 also recognises that the right to freedom of expression is not absolute, and may be subject to laws that are necessary to
        respect the reputations of others.

        In Australia, the right to reputation is primarily protected by State and Territory defamation laws. There is no similar discrete law
        protecting the right to freedom of expression, though the defences available under defamation law to some extent fill this gap.
        Importantly too, the High Court of Australia has found that there is implicit in the Australian Constitution a freedom of
        communication with respect to political or governmental matters.

        The defamation laws in each Australian jurisdiction have progressively diverged since the mid 19th century. This situation was
        tolerable while publications were largely confined within State and Territory borders. But it became both frustrating and
        ridiculous once those borders metaphorically collapsed.

        During the latter half of the 20th century the most astounding developments in information technology completely revolutionised
        the way we communicate. Once, hand written letters had to be sent by ship to friends and loved ones in other states and countries.
        Later, the telephone helped bridge the distance, albeit from a fixed phone on a kitchen wall or table. Now it is commonplace for
        material to be simultaneously published across the nation and across the planet. The Internet makes it possible for individuals as
        well as major corporate publishers to transmit both information and misinformation—both truth and lies—to potentially vast
        audiences.

        The Standing Committee of Attorney General acknowledged the need to bring the State and Territory laws back into alignment
        and tried for some 25 years to achieve this objective. There were always, however, several obstacles in its way. For a start, the
        relevant laws in each jurisdiction had been drafted in different centuries. Secondly, some States had codified their law, while
        others relied more heavily on the common law. Finally, there were protracted disagreements about some particular aspects of the
        law.

        SCAG had all but given up on uniform defamation law when the NSW Attorney General, the Honourable Bob Debus, arranged
        for the matter to be reinstated on its agenda in July 2002. Substantial agreement was reached fairly quickly on the core principles
        that would form the basis for the new model provisions. These were then developed and refined through considerable negotiation
        and consultation.

        The proposed framework for State and Territory uniform defamation laws was released for public comment in July 2004 and
        received considerable support from key stakeholders. This was followed by the historic endorsement of the model provisions by
        the State and Territory Ministers in November 2004.

        When enacted, the model provisions will bring an end to the substantive differences that have made Australian defamation law
        needlessly complex. For the first time, people who publish or broadcast on a national basis will consider just one defamation
        law—not eight. This new law will ensure that personal reputation is given due respect and protection, but at the same time it will
        ensure that freedom of expression is also properly safeguarded.

        I will turn now to the main provisions of the bill.

        As I have said, the Defamation Bill 2005 repeals and replaces the current Defamation Act 1974. Essentially, the bill retains some
        of the best features of the current NSW Defamation Act 1974, jettisons some of its more problematic provisions, and introduces
        some worthwhile reforms.

        Part 1 sets out some of the definitions used in the bill, as well as its proposed objects. In brief, these objects are to:

        •     Promote uniform laws of defamation in Australia;

        •     Ensure defamation law does not place unreasonable limits on freedom of expression;

        •     Provide effective and fair remedies for people who are defamed; and

        •     Promote speedy and non-litigious dispute resolution
18 October 2005                                     LEGISLATIVE COUNCIL                                                               18683


       The current NSW Defamation Act contains a very similar statement of objects. The only essential difference between the existing
       and proposed objects is the reference to enacting provisions to promote uniformity in Australian defamation laws.

       Part 2 sets out the general principles of the proposed law.

       Clause 6 makes it clear that the new Act will not displace the general law in relation to the tort of defamation. The general law
       will continue to apply, except to the extent that the new law provides otherwise. Most importantly, the common law test for
       determining what is defamatory is preserved by the bill. This is the way the law currently operates in New South Wales.

       Clause 7 preserves the existing law in New South Wales by abolishing the distinction between libel and slander.

       Clause 8 will bring a significant but very welcome change to NSW law. Under the current NSW law, each defamatory imputation
       (or meaning) gives rise to a separate cause of action. In all other jurisdictions, it is the publication of defamatory matter that gives
       rise to the cause of action.

       In a speech to university students some years ago, the former Supreme Court Defamation List Judge, the Honourable Justice
       David Levine RFD, lamented the "excruciating and sterile technicalities" that resulted from making the imputation the cause of
       action. "Fortnight after fortnight I have to deal with arguments concerning whether a pleaded imputation is proper in form and is
       capable of arising from the relevant publication … The amount of the Court's time, let alone litigants' resources, expended
       profligately in the determination of what words, sentences and phrases mean is positively scandalous: and this is at the initiation
       of proceedings... Matters of principle have been elevated to an obsessive preoccupation, the playthings of forensic ingenuity,
       fantasy and imagination, at the expense of the early, quick and cheap litigation of real issues that affect the people involved in
       libel actions …. The question is not simply what does a publication mean and whether what it means is defamatory. The jury has
       to determine, in the no doubt novel environment for the jurors of the courtroom and the jury room, whether the words that
       constitute the imputation carefully crafted by lawyers are in fact carried by the publication complained of to ordinary reasonable
       people".

       Clause 8 will finally put an end to this needless complexity. Clause 8 reflects the position at common law by making it clear that
       it is the publication of defamatory matter that is the basis for a civil action for defamation. Both the NSW Law Society and the
       NSW Bar Association strongly support this long-awaited change.

       Clause 9 concerns the right of corporations to sue for defamation. The submissions received by the State and Territory Attorneys
       General on this issue overwhelmingly supported a complete ban on corporations suing, or allowing only non-profit organisations
       to sue. The simple fact is that corporations are not people, and they do not have personal reputations to protect—their interest is
       purely commercial. The commercial reputations they enjoy are often the product of expensive marketing campaigns, and there
       are other legal actions, including actions for injurious falsehood, that corporations can take to defend their interests.

       The Commonwealth's preferred position is that all corporations, regardless of size, power and wealth, should have the right to
       sue. While the State and Territory Attorneys General found this proposition to be unacceptable, in a spirit of compromise, they
       agreed to a small business exemption. Consequently, clause 9 of the bill provides that small businesses, with less than 10
       employees, may sue for defamation. This is the current law in New South Wales. Clause 9 clarifies that small businesses related
       to other businesses in terms of section 50 of the Commonwealth Corporations Act 2001 are not able to sue. The Commonwealth
       definition of a related body corporate includes both a subsidiary and a holding company of another body corporate.

       Clause 9 also makes it clear that not-for-profit organisations, such as charities, will have standing to sue for defamation. These
       types of organisations are less likely to be identified with particular individuals, and are less likely to have the resources to pursue
       alternative remedies.

       I must stress that the bill does not preclude an individual who is a member, officer or employee of a corporation, regardless of its
       size, from suing for defamation if they are personally defamed.

       Clause 10 of the bill preserves the existing position at general law, by precluding actions for defamation in relation to, or against,
       dead people.

       The bill also includes a choice of law rule. While the bill is implementing a uniform scheme, the State and Territory Ministers
       considered a choice of law provision would nonetheless be desirable. The provision in clause 10 will help courts decide which
       State or Territory law should apply when defamatory matter is published wholly in one jurisdiction, or in more than one
       jurisdiction. If the matter is published in one jurisdiction only, the relevant substantive law will be the law of that jurisdiction. If
       the matter is published in several jurisdictions, the relevant substantive law will be the law applicable in the jurisdiction with
       which the harm occasioned by the publication has its closest connection. In working out the jurisdiction with the closest
       connection, the court will consider a range of factors, including:

       •     Where the plaintiff ordinarily resided;
       •     The extent to which the matter was published in each jurisdiction; and
       •     The extent of the harm sustained by the plaintiff in each jurisdiction.

       Although, as I have said, the bill will be implementing a uniform defamation law regime in the Australian States and Territories,
       a choice of law rule will still have some work to do. For example, it will allow a court to take into account whether a particular
       State or Territory has a unique provision in another law which protects a public authority from civil liability for actions taken in
       good faith and in the exercise of their statutory functions.

       Part 3 of the bill re-enacts, with some drafting and other minor modifications, Part 2A of the NSW Defamation Act 1974. This
       part sets up a procedure whereby parties may make and accept "offers of amends" to avoid expensive civil litigation. A publisher
       who makes a reasonable offer of amends may get the benefit of a defence to any subsequent defamation action. Failure to make
       or accept a reasonable offer may also attract cost penalties.
18684                                                LEGISLATIVE COUNCIL                                                18 October 2005


        The offer of amends procedure may be used instead of rules of court or other laws that relate to payment into court or offers of
        compromise. This is important as these types of provisions tend to be available only once litigation has started. It is also
        significant that the offer of amends procedure does not preclude the making or acceptance of other settlement offers. This ensures
        that parties have every conceivable opportunity to settle their differences before proceeding to trial.

        As part 3 essentially re-enacts part 2A of the existing Act, I will not go through it clause by clause. There are just a few changes
        that I would like to highlight. The first is that the publication of an apology will no longer be a mandatory component of an offer
        of amends. This should encourage more publishers to use the offer of amends procedure, particularly where a publisher believes
        that the matter published was both truthful and fair, but wishes to settle the case without an expensive hearing. While an apology
        will be an optional component of a valid offer of amends, a published apology will still be relevant to a court's determination as
        to whether an offer rejected by a complainant was reasonable.

        Still on the subject of apologies, clause 20 expressly provides that an apology does not constitute an admission of liability. This is
        designed to encourage defendants to say sorry. Sorry is a singularly powerful word that is capable of vindicating a defamed
        person's reputation, and healing the hurt caused by an ill-conceived or careless publication. Clause 20 is in similar terms to
        section 69 of the NSW Civil Liability Act 2002.

        Another modification to the existing "offer of amends" procedure is that clause 14 allows publishers to seek "further particulars"
        from an aggrieved party. Without the ability to obtain further information, publishers could otherwise be forced to respond to
        very general assertions that their publications are defamatory. If publishers are to take full advantage of the offer of amends
        provisions they will need to be able to frame offers that address those particular parts of publications that are alleged to be
        defamatory.

        Part 4 of the bill deals with the conduct of defamation litigation.

        Clause 21 will allow either party to elect to have proceedings determined by a jury unless the court orders otherwise. The grounds
        on which a court may order otherwise include:

        •        The trial requires a prolonged examination of records, or
        •        The trial involves technical, scientific or other issues that cannot conveniently be considered and resolved by a jury.

        Clause 21 will replace similar provisions in the District Court Act 1973 and the Supreme Court Act 1970.

        Clause 22 sets out the respective roles that judges and juries will play in defamation actions.

        Under the existing law in New South Wales, the respective roles of the judge and jury are set out in section 7A of the Defamation
        Act 1974. That section states that the judge decides whether the matter complained of is reasonably capable of carrying the
        imputation pleaded by the plaintiff; and whether the imputation is reasonably capable of bearing a defamatory meaning. The jury
        decides whether the matter complained of carries the imputation and whether the imputation is defamatory. If the jury decides in
        the affirmative, the judge decides whether the defendant has established a defence and the amount of damages.

        Clause 22 of the bill makes it clear that the jury will decide whether a matter complained about is defamatory, and whether any
        defences have been established. This expanded role for juries will bring New South Wales back into line with the law in other
        jurisdictions. It will also put an end to separate 7A trials in NSW which have proved to be increasingly unpopular with judges,
        litigants and their legal representatives.

        Clause 22 provides that the judge will continue to determine issues such as whether an occasion is one of absolute or qualified
        privilege, and will be solely responsible for determining damages.

        Clause 23 provides that the leave of the court is required for further proceedings for defamation to be brought against the same
        person in respect of the publication of the same or like matter. This essentially re-enacts section 9 (3) of the current Act.

        Part 4 Division 2 of the bill concerns defences to defamation actions. Clause 24 makes it clear that the defences set out in
        Division 2 are additional to any other defence available to the defendant, including those available under the general law. This
        clause also states that if a defence may be defeated by proof that the publication was actuated by malice, the general law will
        determine whether or not the publication was actuated by malice.

        Clause 25 sets out the defence of justification. It provides a defence to the publication of defamatory matter if the defendant
        proves the substantial truth of the defamatory imputations carried by the matter of which the plaintiff complains. The defence
        reflects the defence of justification at general law, where truth alone is a defence to the publication of defamatory matter. Perhaps
        the single greatest obstacle to uniform defamation laws over the past 25 years has been the inability of the States and Territories
        to reach agreement in relation to the "truth" defence. At present, "truth alone" is a defence to defamation actions in South
        Australia, Victoria, Western Australia and the Northern Territory (as well as England and New Zealand). In Queensland,
        Tasmania and the Australian Capital Territory it is necessary to prove both truth and public benefit. Only in New South Wales is
        it necessary to prove both truth and public interest.

        It is likely that our convict past had something to do with the abandonment by NSW of the common law defence of truth alone.

        The rationale for the common law defence of "truth alone" was put very succinctly in Rofe v Smith Newspapers: The reason upon
        which this rule rests …is that, as the object of the civil proceedings is to clear the character of the plaintiff, no wrong is done to
        him by telling the truth about him. The presumption is that, by telling the truth about a man, his reputation is not lowered beyond
        its proper level, but is merely brought down to it … (1924) 25 SR (NSW) 4.

        The common law position means that a person is not entitled to receive compensation—perhaps hundreds of thousands of
        dollars—merely because something truthful about them has been published.
18 October 2005                                     LEGISLATIVE COUNCIL                                                               18685


       It also means that a person cannot be held legally liable and forced to pay damages merely for telling the truth.

       This does not mean, however, that the defence of truth, or justification as it is known, is easy to establish. Defendants are much
       more likely to invoke other defences, such as fair comment or honest opinion, where the truth of the publication is not the central
       issue. This is because when the defence of truth is invoked, the defendant has the onerous task of proving to the satisfaction of
       the court that the allegedly defamatory statement was, in fact, true.

       For this reason, I fully expect that the proposed change to the law will pass largely unnoticed. It will continue to be the case that
       publishers will risk significant liability if they publish defamatory material that they cannot prove to be substantially true, as
       defined in clause 4.

       Clause 26 provides for a defence of contextual truth. There is already a defence of contextual truth under the existing New South
       Wales Act. The purpose of the defence is basically to prevent plaintiffs from taking relatively minor imputations out of their
       context within a substantially true publication.

       Clause 27 provides that it is a defence to the publication of defamatory matter if the defendant proves that the matter was
       published on an occasion of absolute privilege. These absolutely privileged occasions include:

       •        proceedings of parliamentary bodies, as defined in clause 4;
       •        proceedings of courts and tribunals, as defined in clause 4, including royal commissions and special commissions of
                inquiry;
       •        occasions of absolute privilege under corresponding provisions in other Australian jurisdictions; and
       •        the circumstances specified in schedule 1 to the bill.

       The defence of absolute privilege recognises that, at certain times, society's interest in free speech must prevail over other
       considerations. It simply would not be possible to effectively perform judicial, legislative and other official functions without the
       freedom to make statements that might be defamatory in other contexts.

       The publications listed in schedule 1 are drawn from part 3 of the NSW Defamation Act 1974 and include publications by a range
       of bodies, including the Ombudsman, the Independent Commission Against Corruption, and the Police Integrity Commission.

       Clause 28 sets out the defence for publication of public documents. It provides that it is a defence to the publication of
       defamatory matter if the defendant proves that the matter was contained in:

       •        A public document or a fair copy of a public document, or

       •        A fair summary of, or a fair extract from, a public document.

       "Public document" is defined in the bill to cover a wide range of material including parliamentary reports, civil judgments and
       other publicly available material, including the documents referred to in schedule 2 of the bill.

       Clause 28 is equivalent to the defence set out in section 25 of the Defamation Act 1974 and schedule 2 essentially replicates the
       list of documents referred to in clause 3, schedule 2 of the Defamation Act 1974.

       Clause 29 sets out the defences of fair report of proceedings of public concern. It is a defence to the publication of defamatory
       matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern. A
       defence is also available if the defendant proves that:

       •        The matter was, or was contained in, an earlier published report of proceedings of public concern, and

       •        The matter was, or was contained in, a fair copy, summary or extract from an earlier published report, and

       •        The defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was
                not fair.

       The term "proceedings of public concern" is defined in the bill to cover a wide range of proceedings including those of
       parliamentary committees, commissions of inquiry, law reform bodies, local councils, a range of corporate, professional, trade,
       sport and recreation bodies, as well as the proceedings of bodies referred to in schedule 3 to the bill.

       Clause 29 is equivalent to the defence set out in section 24 of the Defamation Act 1974, and schedule 3 essentially replicates the
       list of proceedings found in clause 2 of schedule 2 to the Defamation Act 1974.

       I should also mention that clauses 28 to 30 facilitate a national defamation scheme by extending the defences in those clauses to
       publications and proceedings referred to in the schedules of corresponding State and Territory laws.

       Clause 30 provides for a defence of qualified privilege. This is a particularly important defence, as it provides protection in a
       range of situations where there is a moral or legal duty to make what might otherwise be defamatory statements. Some typical
       examples include the reporting of suspected crimes to the police and the provision of employment references.

       Clause 30 is based on the provisions of section 22 of the NSW Defamation Act 1974. The clause provides that it is a defence to
       the publication of defamatory matter if the defendant proves that:

       •        The recipient has an interest or apparent interest in having information on some subject; and

       •        The matter is published to the recipient, in the course of giving to the recipient information on that subject, and
18686                                                LEGISLATIVE COUNCIL                                                18 October 2005


        •        The conduct of the defendant in publishing that matter is reasonable in the circumstances.

        Clause 30 lists a number of factors that the court may take into account in determining where the defendant acted reasonably. The
        list is the same as that which is currently set out in the Defamation Act 1974, with a few minor modifications. The first is the
        substitution of the words "public interest" in place of "necessary" in the subclause that refers to expeditious publication. The
        second is the inclusion in the list of relevant factors one which relates to the business environment in which the defendant
        operates.

        Clause 31 provides for a number of defences relating to the publication of matter that expresses an opinion that is honestly held
        by its maker rather than a statement of fact. The clause distinguishes three situations namely,

        •        Where the opinion was that of the defendant;

        •        Where the opinion was that of the defendant's employee or agent; and

        •        Where the opinion was that of a third party.

        In each case, the opinion must relate to a matter of public interest and it must be based on proper material. "Proper material" is
        defined in the clause to mean material that:

        •        is substantially true

        •        was published on an occasion of absolute or qualified privilege, or

        •        was published on an occasion that attracted the protection afforded by clauses 28 or 29.

        The equivalent defence under the current law is found in division 7 of the Defamation Act 1974.

        Clause 32 sets out the defence of innocent dissemination. The proposed defence largely follows the defence of innocent
        dissemination at common law, which is the law that currently applies in New South Wales.

        Clause 32 states that it is a defence to the publication of defamatory matter if the defendant proves that:

        •        The defendant published the matter in the capacity, or as an employee or agent, of a subordinate distributor—typical
                 examples would be book sellers and librarians;

        •        The defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and

        •        The defendant's ignorance was not due to the defendant's own negligence.

        The main difference between the proposed defence and the common law is that clause 32 seeks to accommodate providers of
        Internet and other electronic and communication services. These kinds of service providers will be treated as subordinate
        distributors, unless a service provider was, in fact, the author or originator of the defamatory matter, or had the capacity to
        exercise editorial control over the matter. It is simply not realistic to expect an Internet service provider, for example, to monitor
        the content of every transmitted item for potentially defamatory content. In a similar vein, broadcasters and operators of
        communication systems will not generally be liable for publications by persons over whom they have no effective control.

        Clause 33 sets out a defence of triviality. It provides a defence in circumstances where the circumstances of the publication were
        such that the plaintiff was unlikely to sustain any harm. The equivalent provision is found in section 13 of the Defamation Act
        1974.

        Part 4 Division 3 relates to the remedies available to successful plaintiffs. Like the current NSW defamation law, clause 34
        requires there to be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of
        damages awarded.

        Under the general law, damages for economic loss are awarded to successful plaintiffs to compensate them for pecuniary loss,
        such as loss of income and, in the case of personal injury actions, any medical, rehabilitation and care expenses they have
        incurred or are likely to incur. Damages for non-economic loss, or general damages, are awarded to compensate plaintiffs for the
        less tangible harm they have suffered. For example, in personal injury actions, general damages compensate for "pain and
        suffering". In defamation actions, damages compensate for "injury to feelings" and loss of esteem.

        In defamation actions, once a court determines that a publication is defamatory, damage to reputation is presumed, and does not
        have to be independently proved by the plaintiff. While economic loss may also be compensated, it is not usually claimed in
        practice.


        Recent changes to NSW civil liability law have imposed both thresholds and caps on awards of general damages in personal
        injury cases. In order to be eligible for the maximum award of damages for non-economic loss (which since 1 October 2005
        stands at $416 000), it is likely that a plaintiff would need to show that they have been rendered quadriplegic or severely brain
        damaged and will be highly dependent on the care of others for the rest of their life.


        By way of contrast, in the recent case of Sleeman v Nationwide News Ltd [2004] NSWSC 954, a journalist from the Sydney
        Morning Herald was awarded $400,000 in damages basically because an article in the Australian conveyed the impression that
        he was a dishonest journalist.
18 October 2005                                      LEGISLATIVE COUNCIL                                                             18687


        While I have no doubt that false and defamatory statements are harmful, the fact is that reputations may be restored and injured
        feelings may pass after a time. The pain and suffering associated with an affliction like quadriplegia, on the other hand, is likely
        to last a lifetime.

        The bill ensures that this glaring discrepancy in the way damages are awarded is addressed. The bill proposes an indexed cap of
        $250,000 for general damages, retention of aggravated damages, abolition of exemplary damages, but no cap on economic loss.

        Aggravated damages may be awarded where the injury to the plaintiff has been exacerbated by the conduct of the defendant (for
        example, the defendant has acted maliciously).

        Exemplary damages have already been abolished in NSW, and the economic loss that may be claimed under the NSW law is
        unlimited. Therefore the only substantive change for NSW law is the proposed cap on general damages of $250,000. This amount
        will be indexed on an annual basis, by reference to the formula set out in clause 35.

        Clause 38 lists a number of factors that a court can take into account in mitigation of damages. These include whether the
        defendant has apologised or published a correction, and whether the plaintiff has already recovered damages in respect of a
        publication that carried the same meaning or effect as that complained of in the current proceedings.

        Part 4 Division 4 relates to the award of costs in defamation proceedings. Clause 40 allows the court to order costs on an
        indemnity basis if a party unreasonably failed to make or accept a settlement offer. The court may also have regard to the way in
        which the parties to the proceedings conducted their cases, including any misuse of a party's superior financial position. This
        provision is based on the existing NSW law.

        Part 5 sets out a number of miscellaneous procedural matters, including provision for the new Act to be reviewed within 5 years
        from the date of assent.

        The bill also makes a number of consequential amendments to the law, which are set out in schedules to the bill. For example, the
        criminal defamation provisions that currently reside in the Defamation Act 1974 are to be moved largely intact into the Crimes
        Act 1900. There are some minor changes. For example, the power of the court to impose a fine has been removed. As the
        Explanatory Note to the bill makes clear, the Crimes (Sentencing Procedure) Act 1999 already allows the court to impose for
        indictable offences fines of up to 1,000 penalty units (currently $110 000) on individuals, and 2,000 penalty units (currently $220
        000) on corporations. Another change made by the bill is that, in future, it will be the Director of Public Prosecutions rather than
        the Attorney General, who will consent to proceedings for criminal defamation.

        The relevant limitation period provisions have also been updated, but are essentially unchanged. The limitation period will
        continue to be one year from the date of publication, extendable to 3 years if the court considers it was not reasonable in the
        circumstances for the plaintiff to have commenced their action in time.

        The enactment of the model provisions by the States and Territories represents the first stage of what will be an on-going reform
        process. This first stage has been concerned with bringing each of the State and Territory laws into alignment. Given that the
        existing defamation statutes span three centuries, this has been no easy task.

        Once all of the States and Territories have enacted the same basic law, we will be turning our attention to whether any further
        reforms might be necessary to ensure defamation law continues to keep pace with changes in society and technology. To this end,
        the State and Territory Attorneys General have agreed to enter into an Intergovernmental Agreement. This Agreement will also
        ensure that uniformity is maintained between the jurisdictions in the years to come.

        The model defamation provisions have now been introduced in South Australia, Western Australia and Victoria, with the rest of
        the Australian jurisdictions expected to follow shortly. For the first time in a century and a half, we have the realistic prospect of
        a national defamation scheme. Such a scheme is needed now more than at any time in the past and I strongly urge that it be
        supported.

        I commend the bill to the House.

          The Hon. DAVID CLARKE [5.38 p.m.]: The purpose of the Defamation Bill, which is not opposed
by the Opposition, is to repeal and replace the Defamation Act 1974 in an endeavour to implement the uniform
model defamation provisions endorsed by the State and Territory Ministers of the Standing Committee of
Attorneys General in November 2004. At the time of that endorsement in November 2004 each State and
Territory applied different laws to the tort of defamation. Some jurisdictions retained the common law,
supplemented to varying degrees by statutory provisions, whilst others had codified their civil law. There are
also differing laws between jurisdictions relating to the offence of criminal defamation.

         In New South Wales the civil law of defamation is mainly governed by the common law as amended
by the Defamation Act 1974, and the law of criminal defamation is partly codified by that Act. The genesis for
the introduction of uniform defamation laws throughout the jurisdictions of the Commonwealth came from the
Commonwealth Attorney-General, Philip Ruddock, at a meeting of the Standing Committee of Attorneys
General. On 19 March 2004 he released the first discussion paper on the issue, and on 29 July 2004 he followed
this up with a revised discussion paper and some draft provisions, taking into account the views of stakeholders.

       On 30 July 2004 the States released their discussion paper, and on 5 November of the same year State
Labor Attorneys General released their proposed provisions, promising to enact them by 1 January 2006. In
18688                                        LEGISLATIVE COUNCIL                                  18 October 2005


response, on 5 November the Commonwealth Attorney-General, Philip Ruddock, responded to the State and
Territory Labor Attorneys General outlining some of the problems associated with their proposals, and on
7 March this year he offered a compromise to the States and said that he would hold them to the deadline of
1 January 2006. The bill implements the model provisions outlined by State Labor Attorneys General in
November 2004 and already introduced in South Australia, Western Australia and Victoria.

           The bill seeks to enact the model agreed upon by the State and Territory Attorneys General, in
particular: first, the retention, with some modifications, of the common law of defamation to determine civil
liability; second, the abolition of the distinction at common law between slander and libel; third, the creation of
a statutory cap on the amount of damages for non-economic loss that may be awarded in civil proceedings for
defamation; fourth, the enactment of provisions to facilitate the resolution of civil disputes about the publication
of defamatory matter without litigation; fifth, limiting the role of juries to the determination of whether a person
has been defamed and leaving the award of damages to judicial officers; sixth, the abolition of exemplary and
punitive damages in civil proceedings for defamation; seventh, the establishment of truth alone as a defence to a
civil action for defamation; and, eighth, the imposition of a limitation period for civil actions for defamation of
one year, subject to an extension, in limited circumstances, to a period of up to three years following
publication.

         There certainly appears to be a consensus throughout the Commonwealth that there needs to be
uniformity between the jurisdictions on the laws relating to defamation. Broadcasting, both radio and television,
crosses jurisdictional borders. So does the print media and the Internet. This position, coupled with different
defamation laws in different jurisdictions, is an environment that serves to encourage plaintiffs to shop around
for the most advantageous jurisdiction in which to institute a claim. The Opposition shadow Attorney General,
Andrew Tink, has been active in engaging in widespread consultation on attitudes of interested parties to this
bill. He believes that while there are legitimate concerns, and while there are differences and perceived
problems, there is also a consensus view that there has been sufficient advance on a broad front of issues, a
sufficient concurrence on core issues, for changes to be made to the law in New South Wales.

          However, there are still some doubts as to whether, at the end of this process, we will have in effect one
defamation law applicable throughout the jurisdictions across Australia. There are still some significant
elements who do not believe that we will. There is also some concern that what changes have been proposed are
positive. Currently, there are still some differences between jurisdictions, despite the agreement of the
jurisdictions on many issues. For example, New South Wales, Victoria and Western Australia allow for juries,
whereas South Australia does not. While the New South Wales Attorney General, Mr Debus, believes that the
absence of juries in South Australia will not detract from the uniformity of defamation law within the
jurisdictions of the Commonwealth, the Federal Attorney-General, Mr Ruddock, disagrees. He believes that
juries should be available in defamation cases and that this is a matter in which there should be uniformity
among the jurisdictions.

         Another issue where there are differences of opinion is whether corporations should have the right to
sue for defamation or whether they already have other adequate remedies available. The Federal Attorney-
General believes that there should be such a right and that this should be uniform throughout the jurisdictions.
There is considerable support for this view in New South Wales. However, the New South Wales bill takes a
compromise position. Small businesses with fewer than 10 employees will have a right to sue, as will not-for-
profit organisations. Overall, it would be fair to say that the Defamation Bill does not provide the uniformity of
defamation law with other jurisdictions, as has been claimed on its behalf by some. However, it would also be
true to say that it does give uniformity to an extent which makes it appropriate and desirable that the bill be
passed. There is not sufficient doubt to oppose the bill. It is certainly a move in the right direction in ensuring
uniformity in many areas, although not in other areas of significance. On that basis the Opposition does not
oppose the passage of the Defamation Bill.

          Reverend the Hon. FRED NILE [5.44 p.m.]: The Christian Democratic Party supports the
Defamation Bill, which repeals and replaces the Defamation Act 1974 and implements the uniform model
defamation provisions endorsed by the State and Territory Ministers and the Standing Committee of Attorneys
General. I am pleased that the bill has finally been produced after many years of discussion in seeking to have
uniform legislation. Unfortunately, my observation is that this bill reflects, in the main, the New South Wales
legislation. It is as if New South Wales has not made any concessions in the negotiations, so each change affects
the other States; the other States will now come into line with New South Wales legislation. My concern is that
there is still room for some improvement in the New South Wales law which would now apply to this
Defamation Bill. I hope that the Government, through the annual meetings of the Commonwealth Attorney-
18 October 2005                              LEGISLATIVE COUNCIL                                             18689


General and the State Attorneys General, will review this bill to see whether areas in this new uniform
legislation need to be improved and amended if necessary.

         In other words, I do not think we should consider that this Defamation Bill is set in cement, or that it
cannot be changed in the future if changes are warranted, if there are weaknesses or areas in which it can be
improved. I do not regard myself as an expert on defamation, except that I have been the victim of the New
South Wales defamation law. I have been sued for defamation on four occasions. On the first occasion I was
taken before the Broadcasting Tribunal by the Gay Solidarity organisation when I was broadcasting on 2GB.
I spent a great deal of time with barristers discussing the New South Wales defamation law. One case involved
being sued by the Chief Censor for criticism of her actions in regard to the Hail Mary film.

         Another case involved a former Labor member of this Parliament, George Petersen, who objected to a
comment I made on the ABC. I did not refer to him by name but he took offence. On the third occasion I was
sued by a person who claimed to be a recognised homosexual minister, but he was not recognised as such. The
fourth case involved a leading peddler of pornography in Sydney who took his case to the Australian Capital
Territory. All those cases were settled so none of them actually proceeded before the court. In each case the
legal advice I received was along these lines: "It's almost impossible to win a defamation case. You should
authorise us to do all we can to arrange a settlement. We don't believe you have made any errors in what you
have said. You are not guilty of anything, but the way the defamation law works there is always a chance you
will be found guilty and that it could cost you tens of thousands of dollars because until this bill came in there
was no limit on what could be awarded against you."

         I remember that each time the lawyers would say something along the lines of, "You know you'll
probably lose your house if you proceed." In other words, it would cost me hundreds of thousands of dollars.
When one is making fair comment on social and moral issues it is frustrating suddenly to find the defamation
law being used to silence and harass. Under the defamation law, once legal action commences, one receives
legal advice that one cannot comment further on the particular matter. So each action becomes a form of
censorship. In the chief censor case I sent out a request for prayer. It got into Janet Strickland's hands, and she
then issued a second action against me for aggravation of defamation. I aggravated her by making it public that I
was being sued. In some way one is supposed to be silent and suffer silently.

          The other thing that always troubled me was that lawyers would say, "The only thing they have to
prove in court is that you have said something that brings that person into public contempt or odium"—they
would use those kinds of words—"and that can be reasonably upheld." This bill talks about establishing truth
alone as a defence. In each of my cases that is all I had, truth, but they said truth was not enough under New
South Wales defamation laws. According to the Attorney General's briefing note, the bill "establishes truth
alone as a defence—the existing and unique position in the NSW law is 'truth plus public interest'". There must
be some variation in the way defamation lawyers interpret the previous law, and that would now apply to this
bill. I do not think that has clarified the issue as to whether one can be sued for defamation if one is telling the
truth.

         I think it is an advantage to have uniform legislation in Australia. In one of those cases against me, the
person who was responsible for producing pornography took offence when I used the phrase that people who
produced pornography were similar to cockroaches. I was talking about cockroaches loving darkness, and I said
that pornography was in that category. That person decided to proceed through the Australian Capital Territory
courts, and I was told it is a lot easier to win a case in the ACT than in New South Wales. Apparently one can
pick the place where one joins an action.

         The Hon. Henry Tsang: How did you go in that case?

         Reverend the Hon. FRED NILE: I had to settle and spend a lot of money, except in only one case,
when I was dealing with the man who was claiming to be a recognised homosexual minister. The solicitor rang
me and told me the case was now ended. I said, "They are not going to proceed with the action?" He said, "No,
he has just passed away." That was a relief. The bill is modelled to a large extent on the existing law in New
South Wales, with some modifications and improvements. It still has a fair way to go.

         The main legislative changes make the publication, rather than the imputation arising from it, the cause
of action. The Act now has a statement of the object and principles that apply under the existing New South
Wales law. Each of the changes is already part of our existing law. The bill abolishes the distinction between
slander and libel. Again this is part of our existing law. The bill also provides a procedure for the resolution of
18690                                              LEGISLATIVE COUNCIL                                           18 October 2005


civil disputes without litigation. Again, this is within our existing law. It also retains the limitation period of one
year subject to an extension, in limited circumstances, for a period of three years. Again, this is already
contained in New South Wales law.

         Probably one of the major changes is in regard to actions that can be taken by corporations. The bill
precludes corporations, other than small businesses and those operating on a not-for-profit basis, from suing for
defamation, like current New South Wales law. A small business is defined as a business that employs fewer
than 10 employees. Also, individuals associated with corporations who are personally defamed may continue to
sue in their own right. The reference to corporations probably relates to McDonald's, who we know
spent millions of dollars in a case in the United Kingdom and probably attempted to do something similar in
Australia. A number of groups and individuals are running a campaign against McDonald's as a corporation.
They disagree with fast food companies and particularly what they regard as multinational American-based
companies. Their campaign is more political and ideological rather than being based on concerns about food.

         One of the big improvements in the legislation is that it creates an indexed statutory cap of $250,000 on
the amount of damages that may be awarded for non-economic loss. Prior to that cap it was very much open-
ended as to how much it would cost someone who lost the case. Damages for economic loss will not be limited.
This will bring the tort of defamation into closer alignment with the recent tort law reforms. The legislation
continues to provide for costs penalties for conduct such as the unreasonable failure to make or accept
settlement offers. This is the existing position under New South Wales law. In a letter I received from FreeTV,
the Combined Media Defamation Reform Group indicated support for the legislation and support for the
provision that corporations now cannot use the defamation laws. The letter, dated 4 October 2005, states:

         While we oppose the right of all corporations to sue for defamation we appreciate the concerns raised in relation to small
         business and not for capital gain business.

The letter goes on to say:

         … under the current proposal, all corporations retain the right to bring an action for criminal libel, injurious or malicious
         falsehood, slander of title and breach of confidence, or to seek relief under s52 of the Trade Practices Act.

So, corporations still have those avenues open to them. I imagine companies like McDonald's and others, if they
wish to take action, will have those opportunities open to them. The Christian Democratic Party supports the
bill, but it should be kept under review and it still needs improvement.

        The Hon. PETER BREEN [5.56 p.m.]: I share some of Reverend the Hon. Fred Nile's concerns about
the defamation law in New South Wales. Although personally I have not been sued for defamation—

         The Hon. Charlie Lynn: Yet.

         The Hon. PETER BREEN: Yet.

         Reverend the Hon. Fred Nile: I have never sued anybody even though I have been defamed regularly.

         The Hon. PETER BREEN: Reverend the Hon. Fred Nile makes the point that although he has been
sued, he has not sued anyone. Similarly, I have never sued anyone for defamation, although I was sorely
tempted during the Independent Commission Against Corruption inquiry. The Australian described me as the
corrupt Peter Breen, head of the Unity party. I duly made a protest to the Australian and said, "This was highly
defamatory. It damns my reputation and causes me great hurt. I seek an apology." A week after I wrote the letter
the Australian published an apology, which said that on such and such a day the Australian "published an article
in which Mr Breen was described as the corrupt Mr Breen, leader of the Unity party. The Australian wishes to
inform readers that Mr Breen is not the head of the Unity party." That was the apology. That left outstanding the
question whether I was corrupt.

          I took advice about that and was informed of two things. The first was that the apology itself
aggravated the defamation and in the opinion of the person giving the advice that meant that I could
substantially increase my damages if I were successful. The other aspect of the advice was that because I was a
politician, and because politicians were out in the public arena and supposed to be able to withstand those types
of criticisms more than people in private enterprise—

         Reverend the Hon. Fred Nile: You are fair game.
18 October 2005                             LEGISLATIVE COUNCIL                                             18691


        The Hon. PETER BREEN: You are fair game, and I should just cop it on the chin, which I did.
I complained to the Press Council, and I found that process quite useful. The Press Council eventually called the
newspaper to account and there was some resolution. I was reluctant to sue, if only for the experience of John
Marsden, who sued Channel 7 in quite a famous case involving an imputation on two programs broadcast by
Channel 7 as to whether he had had underage sex. In that case Mr Marsden was successful in respect of both
imputations and got $250,000 for each imputation, but his legal bill was about $7.2 million. The fact that
someone has to expend that kind of money on lawyers in order to get an award for damages points to the
inadequacy of this State's defamation laws.

         Reverend the Hon. Fred Nile: He did get costs too.

          The Hon. PETER BREEN: He was extremely lucky to get costs: if the award had been less than
$250,000 for each imputation he would not have been awarded costs. Had he not been awarded costs, he would
have been bankrupted. As it is, he is suffering terminal cancer, and he believes that the action was responsible
for, or precipitated, his medical condition. There are really no winners in defamation law. I agree with Reverend
the Hon. Fred Nile that suing for defamation is a foolhardy exercise. I hope that I will never have to do it, as
Reverend the Hon. Fred Nile never has. I would like to make an observation about the bill in relation to the
defence of truth alone and also in relation to the cap on general damages under clause 34. My initial reaction to
the bill was that having uniform defamation laws throughout Australia was a good development. The Federal
Attorney-General, Philip Ruddock, has been arguing for it for many years now. Indeed, he threatened to pass a
Federal law if the States did not come into line.

         The issue of truth was a sticking point for New South Wales because until the bill becomes law, truth
alone is not a defence in New South Wales; the defamatory imputation also has to be in the public interest.
Amongst the groups that lobbied me on the bill were a group of people from the newspaper industry who said
that they were in favour of the new laws. That immediately raised my antenna and I questioned why newspaper
proprietors would be so keen for the law to go through. The explanation is that if newspapers can show that
material they publish is true, they will avoid any prospect of an action. For example, Reverend the Hon. Fred
Nile has been said to have a wall of videos at his house.

         Reverend the Hon. Fred Nile: Which is not true.

          The Hon. PETER BREEN: Which is not true. But if it were true, and someone published that
information in a newspaper, the question that would arise under the present law is: Is it in the public interest to
publish that fact? To my mind the public interest test is a good brake on what the newspapers can publish. If it
were the case that Reverend the Hon. Fred Nile had R-rated and X-rated videos for research purposes, or for
whatever purposes he might want to have them—and given his opposition to the pornography industry over the
years and his work in the Christian church—it would not be in the public interest for newspapers to publish that
information in a derogatory or defamatory way. But the new law will mean that newspapers would be able to
publish such information about a person provided it is true. For example, somebody might be convicted of a
sexual offence, even of being a paedophile. That person might have served his sentence and been fully
rehabilitated in the community, and then for a malicious purpose a newspaper or other person might publish an
article saying that this person is a paedophile or sex offender—without having to overcome the hurdle of the
public interest test. In my opinion that is a retrograde step.

         In common law, truth is a defence, whether or not the defendant's defamatory statement was motivated
by malice. But truth alone has not been a defence in New South Wales since 1847. In 1874 the public benefit
test came into existence when the law was amended so that the truth of the matter charged should not be a
defence unless it was also for the public benefit. The legislation was replaced by the Defamation Act of 1958,
which retained the public benefit test in addition to truth. One reason for the Legislature making the truth
defence conditional on a public benefit test might have been the recognition of the feelings of convicts and
emancipists. Many people in the community had, as a result of their convict origins, what we might call
unsavoury backgrounds, but it was not in the public interest to constantly refer to somebody as being a convict
or someone who had served a sentence. The second reason was the more general idea that the gratuitous
destruction of a person's reputation is simply wrong from a moral perspective, even if the matter published
happens to be true.

          In 1971 the New South Wales Law Reform Commission found the second reason alone to be sufficient
to justify the view that it is only in certain circumstances that truth should be a defence. The Defamation Act
1974 did not adopt the position that truth alone could be justification for defamation; it provided that truth is a
18692                                         LEGISLATIVE COUNCIL                                    18 October 2005


defence only where the matter of substantial truth relates either to a matter of public interest or is published
under qualified privilege. The Government has done nothing to show that we now suddenly have sound policy
grounds for removing this qualification of the public interest to the truth defence. In fact, judging by the content
of the debate in the Legislative Assembly, it appears that both the Coalition and the Government have failed to
give any substantial consideration to the significance of the dropping of the public interest test to the defence in
defamation of truth, even though it has formed a fundamental part of defamation law since 1874. It is a
substantial change in the law of defamation.

          Not one person in the other place even drew attention to the possibility of negative implications of the
dropping of the public interest test to the truth defence. The rationale given by the Attorney General in his
second reading speech to making truth alone a justification for defamation is that if a defamatory statement is
true, then any damage suffered by the famed person is justified because it reduces the reputation to its proper
level: the law of defamation should not be used to protect undeserved reputations. With respect to the Attorney,
this rationale seems to indicate that the Government is under a misapprehension about the influence of the
highly prejudicial elements in our society that would seek to exacerbate the harmful effects of narrow-minded
and, what I would call, petty prejudice. Someone may have a gripe against someone else based on another issue,
not necessarily the matter that is true or the matter that detracts from the reputation. For example, a person might
have some objection to another's race, religion or sexuality. Then the defence of truth may be used to malign the
person and attack him or her without there being any public interest in what is published. This is the concern I
have. I am surprised that the Attorney General did not draw attention to this in his second reading speech.

         The Attorney expressed an expectation that the proposed changes to the truth defence will go largely
unnoticed. It seems to me that this reasoning is based on the troublesome premise that if only a small number of
people have a practical need for a particular law in order to obtain justice, then the law is not worth having. It
suggests a blatant disregard for aggrieved minorities. It contradicts the principle that all citizens should have
equal access to justice regardless of how statistically uncommon their grievance might be. Not everybody is in a
position to have access to the courts to bring a claim in defamation. It seems to me that this narrowing of the
defence of truth by taking out the public interest aspect will mean that even fewer people will have an
opportunity to approach the court to defend themselves against malicious attacks on their reputation and
standing. While the current public interest test for truth might not make a practical difference to many people, it
certainly serves to protect at least some people from injustice. That reason alone should be sufficient to leave the
public interest test available.

         One instance in which the practical significance of the public interest was clearly demonstrated was in
the case of Chappell v Channel 9, a 1988 case in the New South Wales Supreme Court. In that case the court
restrained publication of the alleged sexual adventures of a well-known sportsman despite the defendant's
assurance that it intended to plead justification on the grounds of truth in any subsequent defamation action. The
court held that although it might be true, it was not in the public interest to spread all over the newspapers the
sexual adventures of this particular sports person. The court did so on the basis that the publication in question
could not be said to relate to a matter of public interest. This was a clear case of the public interest test
preventing the media from causing harm to the reputation of a public figure for no better reason than to cater to
public curiosity or salaciousness.

         Reverend the Hon. Fred Nile: To sell newspapers!

          The Hon. PETER BREEN: That is right, to sell newspapers. The moral virtue of seeking or exposing
truth could hardly be said to have been the defendant's motivation in such a case. Reverend the Hon. Fred Nile's
point is worth repeating. In order to sell newspapers, the more salacious and damaging to the person the subject
of the publication, the more likely it is that we will be going down the road of the Fleet Street newspapers.
People's sex lives, and their private activities and affairs totally unrelated to public office, matters about which
they might be subject to criticism, will be raised in the newspapers and made the subject of public comment and
ridicule. It may sell newspapers, but it lowers the level of public debate and brings into disrepute people who
would otherwise be entitled to privacy. I urge honourable members to think about whether the public interest
provisions in relation to those types of publications should be removed. If it is, it will be a licence to the press to
report matters that are, in many cases, quite unfair and undesirable, simply on the basis that the statements are
true. I believe it is a retrograde step, and for that reason I will oppose the bill.

         The Hon. Dr ARTHUR CHESTERFIELD-EVANS [6.11 p.m.]: I note the comments of the Hon.
Bob Debus. He suggested that he was part of the move towards national uniformity in defamation laws, which is
certainly a step forward. He modestly suggested that, to a large extent, the national uniformity has followed the
18 October 2005                              LEGISLATIVE COUNCIL                                               18693


New South Wales model. I think he has some pride in that—although New South Wales had truth and public
interest provisions, rather than just the truth provision. I take the point made by the Hon. Peter Breen that the
truth test is not necessarily sufficient; without a further test salacious and scurrilous material can be dragged out,
material that is not germane to a person's life or job competence, particularly if that job is in public office. The
most important aspect of this bill is national uniformity. I regard the idea of forum shopping as offensive in this
day of global communications.

          I suppose my experience with defamation law was harsh. It certainly inhibited a lot of what I wanted to
say. For 14 years I ran Puff Off, Australia's leading radio program on smoking. I believe it was the only regular
radio program on the politics of smoking for most of those 14 years. I delivered papers overseas on how to run
such a radio program, in order to encourage others to become involved with such programs. I modestly referred
to it as "Australia's leading program on smoking"; I believe it was the world's only program on smoking, on
which I wanted to speak about the activities of the tobacco industry. I have often said that the members of that
industry are mass murderers and that they deliberately lie about the effects their products have on human beings.
At that time, of course, the industry was conducting campaigns in order to retain advertising and sponsorships,
and buying friends in order to achieve its political ends.

         I note from today's newspaper that the industry is setting up factories in North Korea in order to sell
cigarettes at least in North Korea and possibly across the border into China. That was the accusation that was
made. I was not able to speak as I wished to speak on the program. I was regarded as a brave man when, in fact,
I was merely a time-poor man who did not have time to script the strong statements I wished to make. I received
a threatening letter from Rothmans on at least one occasion, and the management of Radio 2 SER told me that it
had a problem with the defamation law, in that it was unable to obtain insurance for that purpose. Management
advised me that the next time I said anything defamatory I would be taken off the air. I made a mistake. I said
something that management regarded as defamatory, and it said that it would have to wait six weeks to see
whether the radio station had been sued—apparently six weeks was the statute of limitations on defamation at
that time.

          When big corporations take notice of people speaking their minds it is quite frightening. It was very
difficult at that time for people to talk about the politics of tobacco and about corporations doing evil things—
which I believe the tobacco industry is always doing and other industries do at times. The media, of course, has
always been very concerned about defamation. When I worked in occupational medicine I was very impressed
when an enthusiastic woman journalist burst into a rugby league locker room after a game and took photographs
of one of the more glamorous rugby league stars who was at the time under the shower.

         The Hon. Catherine Cusack: Andrew Ettingshausen.

          The Hon. Dr ARTHUR CHESTERFIELD-EVANS: I did not propose to name him. The player in
question was awarded $200,000 in damages because he had been photographed naked under the shower. What
is interesting about that award of $200,000 is that, according to the table of maims at that time, a man whose
penis was amputated in a machine accident could have been awarded only $50,000 in damages. It occurred to
me to be just a tad absurd that damages of such magnitude could have been awarded in such a defamation case
and only a quarter of that sum could be awarded to someone whose life had been ruined. It seemed to me that
the legal system was completely out of whack.

         On my radio program I chose my words carefully and scripted my comments, but I was unable to say
what needed to be said. When people commented that some of what I had said was actionable and if I were sued
I would lose, I was reassured somewhat by the following advice: "Well, of course, they could sue you and they
would win and you would lose your house. But they will not sue you, because the court case would do them too
much harm. People will all agree with what you say, and it will not be worth their while to destroy you."

         The radio station was quite concerned because it would also disappear off the air if I disappeared off
air. The lawyers I spoke to advised me that the industry would be thinking: Is destroying this man financially
worth the adverse flak we will draw and will we look silly in the process of destroying him? I suggest that is a
rather absurd question when one is talking about corporate reputations. I am pleased that corporations cannot
successfully sue under this legislation. I recall the case of Ian Gillfillan, a Democrat politician in South
Australia, who was attempting to move from that State's upper House to its lower House. According to the polls
just before the election, he would have won the seat he contested. However, just before the election a
defamatory article alleging he rorted his allowances in regard to Kangaroo Island appeared in the local press. It
was later proved false but, in the meantime, he lost the election.
18694                                        LEGISLATIVE COUNCIL                                   18 October 2005


         One aspect of defamation that bothers me is restitution. This bill should cover the publication of a
correction for an offending article or statement. If a newspaper publishes a defamatory article on its front
page—and this aspect was alluded to by the Hon. Peter Breen—it should not be able to then publish a tiny
correction on page 2 the next day to the effect, "Oh, well, we got it wrong, but never mind." There must be some
relationship between the degree of defamation and the degree of correction. Newspapers must eat pie a little
more humbly than publish a tiny correction on page 2, as is currently the case. That is most important.

          If someone loses an election because of a false allegation and his or her political career is effectively
ruined, I suggest that in the public interest that allegation should not have been made public. This matter must be
given considerably more thought than it has been given in this bill. The point has been made that, so far as
defamation is concerned, if enough mud is thrown, some of it will stick. The only thing that sticks in the minds
of the general public is the fact that a newspaper reported something bad about someone. In a sense, if enough
mud is thrown people who have not followed a specific case closely will have a low opinion of a person about
whom an allegation, although false, is made.

         The distinction between one's private life and public life is very important. I must admit I was of the
view that America needed a Medicare system. I note that Hillary Clinton wanted to introduce such a system, and
certainly the political opinion was that because of the Monica Lewinsky affair Clinton was weakened to the
point that he could not get his Medicare legislation through. I regard that as a great tragedy. Whatever one may
think about Clinton and Monica Lewinsky, it is obvious that two consenting adults were, perhaps unwisely,
doing things that had nothing to do with Medicare, or indeed Clinton's political life.

          I recall it was cited to me at the time that British politicians seem to resign from Cabinet posts after
being involved in sex scandals, whereas the Americans seem to resign after being involved in financial scandals.
The following comment was offered by Pompidou after the resignation of a British Cabinet Minister after he
had been targeted over a sex scandal, "If I sacked everyone who had had an affair, I would have practically no-
one left in my Cabinet"—meaning that he could not run the party and he could not run the country. The English
were, indeed, stupid to sack a Cabinet Minister over something like that. Regardless of the accuracy of the
information about a person having an affair, it is extremely worrying that his or her reputation is damaged by the
sort of defamation that has run the front page simply because of a juicy interest to sell newspapers.

          Recently in New South Wales, politicians have brought down their enemies by throwing stones at their
private lives, and that is extremely unfortunate. I believe that what happens in people's private lives has nothing
to do with their political lives. However, I am not sure how the defamation law can protect such people if the
information is accurate although not relevant to what is happening. I have spoken to people who have protested
against the way Federal intelligence services are being run. They expressed concern that when the intelligence
services put pressure on people, the use of information about people's private lives is used ruthlessly in the
political arena. Of course, some degree of publication is required for it to do harm, although it may merely
involve family connections to do harm. But certainly from a practical point of view the use of defamation or the
spreading of rumour can now be done much more easily via the Internet. It is difficult to know what the
resolution of that will be.

          The objective of the bill is to ensure uniformity, and that is a good thing. I am not sure that the removal
of public interest is a good thing, because regardless of whether something is true, in my view a matter should
not be made public unless it is in the public interest that it be made public. However, on balance I will support
the bill because it ensures uniformity, rather than oppose it because it removes the public interest defence. In my
view, the key deficiency in the bill is that it does not make provision for restitution with regard to anything that
is said that is inaccurate. I believe it is very important to provide for recantation, particularly in the case of a
powerful media group attacking an individual. Even though a correction may be published regarding an article
appearing on the front page of a newspaper, for example, the average member of the public does not recognise
the importance of such a correction, and certainly cannot put his or her mind in the position it was prior to the
publication of the headline, and that is certainly a worry. With those comments, I support the bill.

         Ms LEE RHIANNON [6.24 p.m.]: The Greens recognise the importance of balancing, on the one
hand, the need to protect individuals from unwarranted damage to their reputation against the need to provide
the community with the right to freedom of expression. That said, the Greens believe that the current law of
defamation in New South Wales is defective and that the bill continues that inadequacy but does so by
contributing to a uniform national defamation law. In essence, the Greens believe that the rights of individuals,
particularly wealthy individuals, are placed too high on the scale of this bill and in the attitude of this
Government. The Greens recognise that the bill could have been a lot worse had the Federal Attorney-General's
18 October 2005                                      LEGISLATIVE COUNCIL                                       18695


view been followed. We understand that Minister Ruddock was pushing for the right of all corporations to sue
for defamation. That would have resulted in a grotesque circumstance where conglomerates like Westpac and
McDonald's would have an extra weapon to pursue legal action against their critics.

         We recognise and acknowledge the efforts of the New South Wales Attorney General in resisting these
backward proposals. Nonetheless, the bill does not achieve equal access to the law or equal outcomes of the law,
and that is why the Greens do not support it. The first concern the Greens have about the bill is that it will still
allow corporations of fewer than 10 people to sue, which, because of the deep pockets that corporations often
have, is unreasonable, and in turn provides a strong disincentive for people to speak out about perceived
injustices or wrongs, regardless of the merits of the issues at hand. In effect, people will be silenced by the threat
of legal action in a range of circumstances. These circumstances can include, for example, people opposing
inappropriate developments. We know that environmentalists, community activists and local councillors
regularly have to speak out on these matters. Then there are whistleblowers and political commentators, whose
comments can be dragged into the courts. And we all know the judgments that can result in the loss of property
and people's livelihood.

          One of the Greens' concerns is that the law of defamation does not reflect the capacity of a person to
pay compensation to another person if one is found to have acted in a defamatory manner. This lack of
recognition of a person's capacity to pay restitution means that an order for compensation being issued to a
wealthy person who defames a poor person inevitably has little effect upon that wealthy person and is therefore
an inequitable avenue of law. The opposite is also true, in that a disadvantaged person who is found to have
defamed someone else, automatically faces a more onerous punishment than a wealthy person. This inequity is
well known. Wealthy people are more likely to engage in defamation proceedings, simply because they can
afford it. That is well illustrated by the number of defamation actions that end up before the courts. More often
than not, it is usually people who have money who pursue such cases. Clearly, this means that we have an
unsatisfactory legal system with regard to defamation.

         The legal avenue of defamation and the courts more generally is an instrument for the wealthy.
Solicitors' costs, barristers' fees, court filing fees, and costs orders against unsuccessful litigants, coupled with
inadequate legal aid funding, are, in effect, a barrier to justice that only the wealthy can overcome. For the
majority of the citizens of this State, defamation actions are out of their reach. The Greens believe that that is
unacceptable, and we hope that it would be unacceptable to most people. But as society is structured at the
moment, unfortunately those considerations do not seem to rank highly.

         Debate adjourned on motion by Ms Lee Rhiannon.

[The Deputy President (The Hon. Patricia Forsythe) left the chair at 6.29 p.m. The House resumed at 8.00 p.m.]

              STATE EMERGENCY AND RESCUE MANAGEMENT AMENDMENT BILL

                                                        Second Reading

         The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency
Services, Minister for Lands, and Minister for Rural Affairs) [8.00 p.m.]: I move:

         That this bill be now read a second time.


Ever since September 11 and the atrocities that followed in Bali, Jakarta, Madrid and most recently London and
again in Bali, it has been clear that authorities across the world must remain vigilant in the fight against
terrorism. The repeated attacks on the London transport system again highlighted the need to constantly review
and update our own plans and powers, and to explore every means of keeping our community safe. Over the
past four years the New South Wales Government has acted swiftly and responsibly to review and improve the
State's counter-terrorism arrangements and resources. In the budget handed down by the former Treasurer, more
than $187 million was allocated to counter terrorism. This is $40 million more than in 2004-05, and reflects the
Government's commitment to protecting the community and the State's critical infrastructure. We have also
moved to ensure that NSW Police and other agencies have the powers they need to prevent, detect and respond
to terrorist strikes. I seek leave to have the remainder of the second reading speech incorporated in Hansard.

         Leave granted.
18696                                                LEGISLATIVE COUNCIL                                                  18 October 2005


        This process has been assisted through the establishment of the Counter Terrorism Laws Task Force to review existing legislation
        and recommend new or amended powers and offences.

        We cannot afford to be complacent in the fight against global terror.

        Potential loopholes—no matter how small—that could be exploited by those with evil intent need to be closed. Seemingly
        innocuous incidents must be looked at through the new prism of counter terrorism.

        As one example: official uniforms and insignia of NSW Ambulance officers were last year offered for sale on the internet site,
        eBay.

        Concerns were raised that access to such items—whether through eBay or other means—could enable terrorists to easily
        impersonate a range of emergency services personnel, which could assist them to plan or carry out their evil work.

        In response to this legitimate concern, I am today introducing the State Emergency and Rescue Management Amendment Bill
        2005 (NSW).

        As outlined in Section 63B, the Bill creates two new offences relating to the:

                 •        Unauthorised manufacture, sale or hire of the insignia or uniform of an emergency services organisation; and

                 •        The use or display of an emergency services uniform or insignia with the intention to deceive—that is, to
                          impersonate an officer of an emergency service organisation.

        Each of these offences will attract a penalty of 50 penalty units—that is, a $5500 fine.
        The new offences created in this Bill will apply to those emergency services covered by the State Emergency and Rescue
        Management Act 1989, namely:

                 •        NSW Ambulance

                 •        NSW Fire Brigades

                 •        NSW Rural Fire Service

                 •        State Emergency Service, and

                 •        Any other agency that manages or controls an accredited rescue unit, such as the Volunteer Rescue Association,
                          Royal Volunteer Coastal Patrol and Australian Volunteer Coast Guard.

        However, the new offences will not apply to the NSW Police Service, which already has strong protection. The offences of
        wearing or possessing a police uniform or insignia or impersonating a police officer are outlined in s203 and s204 of the Police
        Act 1990.

        Clause 40 of the Rural Fires Regulations, which already creates an offence in relation to the unauthorised sale of the official
        uniform and insignia of the NSW Rural Fire Service or the impersonation of its members, will be repealed to avoid duplication
        with this Bill.

        Due to their legislative powers and position of trust within the community, members of the emergency services—whether paid
        officers or volunteers—have access to many of the kinds of sites that could potentially be targeted in a terrorist attack.

        Their distinctive uniforms and official insignia are in the public mind the sign of their trustworthiness and thus the key to this
        access.

        For instance, it is unlikely that an individual in an official Ambulance or Fire Brigades uniform would be challenged to provide
        evidence they are responding to an emergency call.

        Removing the "unofficial market" in the insignia and uniforms of these organisations will help minimise the opportunity for them
        to be used by those with the wrong intent.

        In themselves, the penalties outlined in this bill are unlikely to be a deterrent from taking part in a terrorist act—the high penalties
        attached to the Commonwealth's terrorism offences are more likely to achieve that end.
        However, terrorism can be unwittingly aided by the innocent who do not see the end goal of a seemingly benign incident or chain
        of events.

        Thus, it is the case that the prospect of a $5500 fine could be a powerful deterrent to individuals who are not involved in
        terrorism from unknowingly facilitating the preparation and planning of terrorist acts.

        As outlined in Section 63 B (3), specific exemptions from the offences will apply where the person's conduct is authorised or if
        the person can establish the conduct is for public entertainment or that he or she has a reasonable excuse.

        This will obviously protect, for instance, members of the community who may be staging fund raising events to assist our
        volunteer emergency services, such as the Rural Fire Service or State Emergency Service.

        It also offers protection to genuine collectors or those with a showcase of emergency services insignia who have no intention to
        deceive through their display.
18 October 2005                                     LEGISLATIVE COUNCIL                                                           18697


       This Bill also makes additional amendments to improve the flexibility of the State Emergency Rescue and Management Act.

       The Bill answers proposals put forward by the State Emergency Management Committee and NSW Police to improve emergency
       management arrangements by:

            •     Amending Section 24 of the Act to provide for the appointment of Deputy District Emergency Operations Controllers;
                  and

            •     Amending Section 30 of the Act to introduce more flexible arrangements for the appointment of Local Emergency
                  Operations Controllers.

       Under the Act, emergency operations controllers are appointed at State, District and Local levels. There are 18 emergency
       management districts across the State.

       District Controllers—who are Police Region Commanders—are responsible for controlling the response to an emergency that
       affects more than one local government area within their emergency management district.

       Each District Controller may be responsible for up to five emergency management districts. This responsibility includes chairing
       each district's Emergency Management Committee, which has the task of preparing the district's emergency management plans.

       The amendments to Section 24 will allow for District Controllers to appoint a deputy to assist them with these operational and
       planning responsibilities. This is a sensible and practical approach, particularly for those whose emergency districts cover an area
       stretching some distance from their Region Command headquarters.

       The Deputy would be a Police Local Area Commander of Superintendent rank with relevant emergency management experience.

       A Local Emergency Operations Controller is likewise responsible for controlling the response to an emergency that affects a
       specific local government area.

       Under Section 30 of the Act, the Local Controller must be a police officer experienced in emergency management and stationed
       within the relevant emergency management district.

       However, there are times when it may be more appropriate to appoint an officer with relevant training and experience from
       outside the district.

       This may particularly be the case where a more experienced officer who is stationed nearby but not within the relevant area could
       replace a Local Controller on leave.

       Accordingly, the Bill amends Section 30 to allow a Local Controller to be appointed from a nearby emergency management
       district when it is not reasonably practicable to appoint them from within the district.

       Again, this is a sensible and practical approach, while ensuring the local community continues to receive the highest standard of
       emergency management.

       The Government remains vigilant and committed to ensuring our State's police and other agencies have the powers and resources
       they need to respond to emergencies and, increasingly, in the war against terror.

       This Bill is another step in the process of ensuring our legal framework is solid and not open to exploitation.

       I commend the Bill to the House.

       Debate adjourned on motion by the Hon. Tony Kelly.

                       LUNA PARK SITE AMENDMENT (NOISE CONTROL) BILL

                RESIDENTIAL TENANCIES AMENDMENT (SOCIAL HOUSING) BILL

       Bills received.

       Leave granted for procedural matters to be dealt with on one motion without formality.

       Motion by the Hon. Tony Kelly agreed to:

       That these bills be read a first time and printed, standing orders be suspended on contingent notice for remaining stages and the
       second readings of the bills be set down as orders of the day for a later hour of the sitting.


       Bills read a first time and ordered to be printed.
18698                                                LEGISLATIVE COUNCIL                                                  18 October 2005


                         LUNA PARK SITE AMENDMENT (NOISE CONTROL) BILL

                                                          Second Reading

         The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency
Services, Minister for Lands, and Minister for Rural Affairs) [8.06 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 amendments in this Bill arise from the need to secure the ongoing operation of Luna Park.

        Parliament has already legislated twice to ensure the survival of Luna Park:

              In 1990 by adopting the Luna Park Site Act to provide for its future management by the establishment of the Luna Park
              Reserve Trust. Luna Park was vested in the Crown and dedicated for public recreation, public amusement and public
              entertainment, and

              In 1997 by amending the Luna Park Site Act to broaden the range of land uses permissible at Luna Park and to allow use
              of the cliff top sites for commercial activities.

        Both sides of the House supported the need for legislation to protect Luna Park and I trust these further amendments will also be
        supported. Luna Park first opened in 1935. It was built on the construction site for the Harbour Bridge to honour and thank the
        workers involved in the Bridge construction.

        It provided a much needed playground for Sydneysiders during the Great Depression years.

        At various times the famous lights of the Luna Park Face, Coney Island and Crystal Palace have been in darkness— sometimes
        for years. But Luna Park has survived against, at times, seemingly hopeless odds.

        It says much about the nature of Sydney as a city that an amusement park can be established, thrive and be revived on such an
        important and valuable harbour site.

        The Park has had a successful reopening in April 2004, and the Park is now in its 70th year.

        On 5 April 2005, four plaintiffs commenced action in the Supreme Court alleging that the operation of Luna Park constitutes a
        "nuisance". The plaintiffs have sought orders to stop the operation of three permanent and two temporary outdoor rides at Luna
        Park and to seek damages from the operation of the rides.

        The core of the current action is directed at noise created by the patrons at Luna Park—the thrill and pleasure screams
        fundamental to a fun park.

        I am advised that Luna Park is operating within its conditions of development consent.

        No one has claimed they are in breach of their development consent.

        The current action claims that the noise being made by Luna Park is a "nuisance", notwithstanding the Park has been operating in
        accordance with its development consent.

        Luna Park is authorised to operate as a place of public entertainment by an Act of Parliament and it is the subject of a number of
        development consents which dealt with the emission of noise from the premises.

        Despite these specific authorisations which allow it to operate as an amusement park there remains a risk that Luna Park could be
        the subject of successful legal action as a result of the noise which is emitted.

        Although there is a good argument that such authorisations and the development consents will provide a defence to any action,
        this is by no means certain.

        This ongoing uncertainty, however, is affecting the operation of Luna Park.

        What is at threat here is not the operation of the modern facilities at Luna Park like the Big Top or the cafe brasserie; what is at
        risk is the fundamental operation of Luna Park as a fun park.


        Already, those seeking to use Luna Park's facilities for functions and other events are expressing concern about the future
        operation of the Park as a result of the ongoing uncertainty around noise issues.


        The aim of this Bill is to provide certainty for the future in relation to the emission of noise so that the operations of the Park will
        be protected.
18 October 2005                                      LEGISLATIVE COUNCIL                                                            18699


         This Bill creates legislative certainty for the operators of Luna Park and the residents in the area by providing that legal
         proceedings may not be brought in respect of noise levels being emitted from the Park, provided that the noise being emitted is
         within the prescribed maximum noise level.

         This level provides that noise from any activity cannot exceed 85dB (A).

         I am advised that since its reopening in 2004 Luna Park has been operating below this level, however a buffer is required to take
         into account peaks in noise levels (such as screams from people on rides or weather conditions).

         It is anticipated that if levels reach 85dB (A) these will be momentary—that is the maximum permissible noise level will not be
         sustained for extended periods of time. The maximum permissible noise level is only likely to be reached as a result of screams
         from patrons on rides and not by the mechanical operation of the ride. To ensure that this is the case, the Bill stipulates that the
         maximum permissible noise level of 85dB (A) must not occur for longer than 15 minutes.

         The Bill also specifies how and where noise will be measured.

         In addition, the Bill provides that noise from the Luna Park site that does not exceed the maximum permissible noise does not
         constitute a public or private nuisance. This provision protects the ongoing operation of Luna Park and has precedents in the
         Olympics Arrangements Act 2000 and the Mount Panorama Racing Act 1998.

         So long as Luna Park is operating within the specified noise levels, no criminal, civil proceedings or noise abatement action may
         be taken with respect to noise emissions at Luna Park.

         If noise levels from Luna Park exceed the maximum noise level, complainants may still be able to take action against the Park.

         I should also point out that where the development consent for Luna Park deals with the issue or noise, those standards will
         continue to apply and action can be taken under the Environmental Planning and Assessment Act to enforce those standards. For
         example, this means that noise emanating from internal spaces must not exceed 60dB (A).

         The Bill also includes provisions which deal with the emission of noise from the Park since its reopening on 4 April 2004.

         These provisions address the existing uncertainty in the law as to whether Luna Park is protected from an action in nuisance in
         respect of noise emitted from the Park, even though to date it has been operating as authorised by its development consent as an
         amusement park which necessarily involves the emission of noise.

         These provisions will apply to proceedings which have already been commenced but which have not yet been determined. It will
         also ensure that any injunction granted prior to the commencement of the Bill does not affect the operation of the Park if the
         noise level is within the maximum prescribed noise level.

         This aspect of the legislation is necessary to ensure that the past operations of Luna Park and the uncertain state of the law does
         not jeopardise the Park's future viability. As I have said before, I am advised that Luna Park has been operating in accordance
         with its development consent.

         This Bill is consistent with action taken in March 2005 under the Protection of the Environment Operations Act 1997 which
         protected the operations of Luna Park against noise actions if the Park was complying with its conditions of development
         consent.

         The Bill goes one step further than that Regulation by effectively specifying a maximum noise level for the outdoor areas of Luna
         Park rather than relying on the provisions of the Luna Park Acoustic Plan of Management.

         The Bill is also consistent with the Government's commitment and actions to return a viable Luna Park to the people of Sydney
         for their ongoing enjoyment and at no cost to the NSW taxpayer.

         I trust Honourable Members will support the preservation of Luna Park as a Sydney Harbour icon along with the Harbour Bridge
         and the Opera House and as an ongoing heritage funfair for Sydney's children and for the adults who remain children at heart.

         I commend the Bill to the House.

          The Hon. PATRICIA FORSYTHE [8.06 p.m.]: Whenever the Government introduces legislation that
requires us to wait for the bill to be reported so that we can commence, we always smell a rat. And with this
particular bill we smell a big rat. Today the Government changed the order of proceedings in the Legislative
Assembly in order to deal with this bill, and now the Minister has had to second read another bill in order to buy
time until the Luna Park Site Amendment (Noise Control) Bill was received in this House and we could debate
it. One must then ask: What is this all about? Why the rush? Was the Government so wounded by today's attack
in the media that it felt the only way to deal with the matter was to rush the legislation through the House
tonight, rather than risk yet another morning of Alan Jones putting the facts as we have come to know them?

          Clearly, the rights of the residents in the area surrounding Luna Park are being trampled on. In terms of
normal process, we understand that the right of people to take action under common law, in this case in relation
to noise, is being trampled on. But even worse, this is not about a set of guidelines or regulations for the future.
This bill has an extraordinary retrospective element to it, and the Opposition will oppose it at every stage.
18700                                        LEGISLATIVE COUNCIL                                   18 October 2005


          There is nothing moral about this legislation. The issue is about ordinary citizens living in their homes
understanding that they live adjacent to an amusement park. Every email I have seen—and I have seen many in
the past few days as has every member of this House—made it clear that the residents understand they live
adjacent to an amusement park. They understand about noise and they accept that, per se. They are not accepting
the way in which the process has been abused and the way in which their common-law rights are about to be
overridden by this legislation. Their capacity to co-exist with Luna Park will be badly affected by the outcome
of this legislation.

          No-one who has contacted me—and I suspect no-one who has contacted members of the Labor Party—
has suggested that Luna Park should be closed. It should not. It is a significant icon, a significant part of Sydney.
I did not grow up in Sydney. I did not have the benefit of being able to go to Luna Park. The only time I have
been to Luna Park and enjoyed the amenity of the place was at the official opening in 1994 after it had been
closed. Notwithstanding that, I am always excited when I am at Circular Quay. One can look across to North
Sydney and see Luna Park. At night when it is lit up it is an attractive part of the harbour. It has a role to play.
The Opposition is not suggesting that Luna Park should not exist, but the Government has got itself into a bind
and is now expecting Parliament to help it get out of it. We do not believe that this is the way forward. The Luna
Park Site Amendment (Noise Control) Bill fails every test of good public policy. As I have said about other
legislation, if we need evidence that this Government is out of touch with the community, this bill is it.

          I am amazed that the legislation has been introduced by the Minister for Tourism and Sport and
Recreation. As the honourable member for Port Jackson, she would have felt the ire of the community at the last
election. I would not have thought she would need any further reminding of the importance of listening to local
communities following her result in the last election. She saw clear evidence of what happens when one ignores
one's local community. The Port Jackson electorate is on the other side of the harbour, but residents of North
Sydney will be shouting loud and clear for a long time about the extraordinary precedent set by this legislation.
They will be saying to every resident action group around Sydney, and particularly on the harbour foreshores,
not to trust this Government. They will be able to say this Government has no interest in the local community. It
is only interested in the dollar bottom line, and clearly it has got itself into a bind over Luna Park.

          There are conflicting messages from the Government. The Government contends Luna Park is a viable
entity and has said that the cafes and cinemas that are going to be there will make it viable. The whole issue is
about noise from a couple of rides. If the Government is not worried about viability, why are we dealing with
legislation in this way? The performance of the Government raises more questions than it answers, and the
community has sought answers. This legislation fails the test of good public policy.

          I have read the Minister's second reading speech, information on the web site from the Friends of Luna
Park, and information from the people who have contacted me. I do not see evidence of any attempt at
mediation or any attempt by the developers of the site and the Government to sit down with the local residents.
This issue is not just about next week or next month; it is not just dealing with a court case that is due to be
heard on 31October. This is about the co-existence of a significant number of residents and this park for a long
time. If Luna Park is a viable entity, the people who live around it have to have a quality of life and a capacity to
co-exist with the park.

         In my view, some of the issues that have gone on to the courts may have reached a reasonable outcome
through a process of negotiation and mediation. This Government, as it has done so often, approaches
everything with a hammer rather than in an appropriate manner. For example, one of the issues about which
local residents have had strong concerns is spruikers around a couple of the rides and what we understand is
techno music. My colleague the honourable member for North Shore made reference to her children when they
were teenagers. She felt they had gone a little past it. She came to understand what techno music really means.
Having a son of a similar age, I recall our experience when we went through the same phase. It is no good
closing doors and windows, because techno music seeps in under doors and windows and hammers away at
people's heads. That is what the residents are talking about.

         This issue should have been approached differently. The people have already entered Luna Park
through the clown's head. It is a matter of getting them on various rides, but what else were they going to do?
They are a captive audience. Do they need that level of music and the spruikers? I suspect this issue could have
been resolved had there been a sense of goodwill from the Government, and if it had spoken to the developers
and to the residents. Techno music can be extremely numbing to the brain. Any parent of a teenager will tell you
that. The Government recognised this in 2001.
18 October 2005                                       LEGISLATIVE COUNCIL                                                               18701


         I found an interesting press release and some information about regulations from the Minister for the
Environment, who, when he is wearing his Attorney General's hat, is probably interested in the issue of
retrospectivity. He has a bit to answer for in all this legislation. It is not just about the Minister for Tourism or
the Minister with responsibility for the Sydney Harbour foreshore or whatever it is that the Hon. Frank Sartor is
responsible for, because I would have thought that the Minister for the Environment and the Attorney General
would have a particular interest in this bill. He certainly had a view about deafening car stereos in 2001.

          In a press release headed "New laws to pull the plug on deafening car stereos", he was not just talking
about road safety problems from people playing loud music in cars; he was talking about the "audio assaults
from car stereos" and legislation that was going to tackle "this growing offensive noise problem". He went on to
talk about "excessively noisy car stereos thumping and booming through our suburbs". A car can thump and
boom with the appropriate stereo going—I think we have all heard them—but cars move on. The Luna Park
rides will not move on; they will stay there for the surrounding residents to hear day after day, night after night.
They will be surrounded by, to use the Minister's words, thumping and booming. That description is as apt for
the music played to entice patrons to go on some of the rides as it is for the offensive music the Minister referred
to as leading to a $200 penalty infringement notice.

         He dubbed them boom cars and referred to excessively loud stereos capable of generating noise above
the human pain threshold of 120 decibels. Although the bill provides for a noise level of 85 decibels, the level
could go well above that and stay within the law for a brief period but on a regular basis. Back in 2001 the
Government responded to community pressure when it identified the problem of techno music, this booming
and thumping music. The residents in the Luna Park area have been complaining about the very same music. It
has led them to take court action to deal with noise. The case is to be heard on 31 October. That action will be
ruled out if the House passes this bill tonight because it has a retrospective clause. The Government had
booming car stereos brought to its attention by Rockdale City Council, one of its own. But when an issue is
raised by an Opposition member the Government treats it with disdain. I am absolutely confident that the
residents in the Luna Park area will make sure that residents across Sydney know how they are being treated.

         The bill fails the test of good policy for a number of reasons. Let me deal with how the Government
deals with noise pollution when it puts on its responsible advising hat through the Environment Protection
Authority or the Department of Environment and Conservation. When I typed in "noise" to see what I could get
on the web site I got advice from the EPA saying, amongst other things, that most council-regulated potentially
noisy activities—remember that this issue would be subject to council regulation if it were not at Luna Park and
the subject of other State Government controls—are not the subject of specific limits or controls. So an 85-
decibel absolute maximum is not needed; it is not subject to specific limits or controls.

        It is an offence under the Protection of the Environment Operations Act if noise is emitted from the
premises by the occupier's failure to maintain or operate plant, or to deal with materials in a proper and efficient
manner. Noise control notices or noise abatement directions may also be issued requiring emissions to be
reduced or ceased in certain circumstances. In other words, we do not need something that says if it peaks at
85 decibels or below it is okay; we do not need to necessarily have specific limits or controls. But if noise is
emitted which causes offence to neighbours, action can be taken under the Protection of the Environment
Operations Act.

         It seems that is fine for everyone except for the people who live around Luna Park. That is what is so
offensive about the bill. The Government is prescribing a decibel limit that is so out of favour with governments
around the world. Why do we have to be so specific? What bind is the Government in with the developers that it
must do everything through this offensive bill to ensure that there is absolutely no way that residents will be able
to take appropriate action? I went back to look at what European parliaments have done in relation to noise. In
1996—a long time ago—a green paper was issued by the European Commission. Commenting on the green
paper, the European Parliament stated:

         The Green Paper does not give a specific definition of noise, although it suggests "unwanted sound" or "sound that is loud,
         unpleasant or unexpected". It states that "its origins are in human activities and it is especially associated with the process of
         urbanisation and the development of transport and industry". While noise can be measured using decibels, different types of noise
         are perceived differently and the effects of noise are difficult to quantify as people's tolerance to noise level and different types of
         noise vary considerably. Exposure to noise may have a number of direct adverse effects "including disturbance of sleep, auditory
         and non-auditory, physiological—basically cardiovascular—effects, interference with communication and general annoyance".

That is very relevant to the conditions in which surrounding residents live. People around Luna Park understood
the nature of the area in which most of them bought properties because Luna Park has been there for a very long
time. But they understood that the operations would be limited to 65 decibels; this bill now permits a level of
85 decibels. By prescribing that level the Government is making it very difficult for people to take action about
noise as a nuisance because now it will be a defence that the level was below 85 decibels.
18702                                        LEGISLATIVE COUNCIL                                    18 October 2005


         I am no lawyer, but it seems to me that by proscribing it in that way people have a sense of a
"nuisance". One can imagine trying to get to sleep late at night and the sounds that might come from some of the
rides. Honourable members may recall that 65 decibels was the level that caused the closure of the Big Dipper, a
level that was considered not to be tolerable. The residents understood there had been changes to Luna Park, and
were accepting of that fact, but a number of things have changed. The goalposts have been shifted. What people
understood to be the envelope, if you like, of Luna Park has altered. The rides in respect of which the recent
complaints were made and legal action has been taken are not inside the old envelope of Luna Park; they are in
what would have been, in past times, the Lavender Bay rail area.

         Three rides in particular have given rise to an enormous concern and have clearly upset the amenity of
the area so far as the local community is concerned. That is why action has been taken. I have to say I was
disappointed on reading an article in the Sydney Morning Herald at the response from the developer, who
described the action as a "vexatious court action". I am disappointed because I would have thought that, rather
than merely throwing out insults, a better way forward might have been to try to work with the residents in an
attempt to reach a mediated solution about what could be done at certain times.

          The Government has said there are many other things in the park that are profitable. I fail to understand
how having some rides operating until a late hour of the evening, all with music and spruikers, is going to have
such an impact on the park. Apparently it does, because I cannot see any other reason for the Government's
introduction of this extraordinary legislation at this time. We in the Opposition, and I am sure all members of
this House, have received an extraordinary number of emails in recent days, all of which make eminent sense.
My colleague the honourable member for North Shore has been doing her best to keep the Opposition informed,
to see if there is any way forward. We want Luna Park to remain open. We certainly do not want to be the butt
of criticism from the developer that we caused it to have to undergo change involving onerous requirements.

          The Opposition also understands that this is about long-term coexistence between what is a Sydney
icon—it has been there for a very long time—and a significant number of residents whose normal amenity of
life is being impacted on. The residents want to be able to have friends over for dinner and sit on their balconies.
They want to be able to keep their windows open so they can sleep at night when it is hot. No doubt on Friday
and Saturday nights the noise would be a little louder and continue for a little longer, but the residents want to
be able to do the normal things that other people take for granted. That is what is at risk for these residents, and
will be at greater risk if this bill is passed. The normal common law opportunity for people in the area to take
action in the court to deal with the issue of noise will be dealt a fatal blow by this legislation. They will be able
to take such action only on occasions when the sound reaches above 85 decibels, which, as I understand it, is the
level that one associates with being under the Sydney airport flight path. It is a very loud noise.

          Where do we go from here? If I were the Government I would listen to the community and to the
media. I would withdraw this legislation tonight. I would say to the developer and to the community, "We have
to find a way to coexist." Many local residents have spent millions of dollars to live in what is a beautiful part of
Sydney. It is not about a yuppie group, as I suspect some speakers for the Labor Party will suggest. It is about
people who have invested an enormous amount in that area and want to be able to reside there. They understand
there is an amusement park in the area and that we have to find a way to coexist. It is not about next week or
31 October; it is about a very long time into the future.

         Passage of this legislation will not achieve the level of coexistence that makes for normal peaceful
communities. If the Government has any sense of being able to go to the next election and look the people of
New South Wales in the face and say that it is not out of touch with communities in different places and on
different levels, the only way forward tonight is for it to realise the error of its ways and withdraw this appalling,
immoral legislation, and accept what the Opposition is saying: that we want to see Luna Park survive, but in a
way that acknowledges not only the needs of the Government and the developer, but also the needs of the
community. We certainly will not do it by passing this legislation.

          I urge all members of this House to vote against the bill, but I say to you, Mr Deputy-President, and to
other members of the crossbench that tonight is an opportunity to stand up for a particular local community and
support them in their desire for an environment in which they can live. I should conclude before a Government
member tries to take a point of order. Honourable members opposite will have read my pecuniary interests
declaration. I own property in Milsons Point and have owned it for a long time, but it is not adjacent to Luna
Park. It does not overlook Luna Park. In my view, it would not be impacted on in any way by this legislation—
regardless of whether it passes or is defeated. I happen to be a property owner in the region and I am one of a
broad class of people. I am certainly not directly impacted on by Luna Park.
18 October 2005                               LEGISLATIVE COUNCIL                                              18703


         I say that for completeness, as I have done in respect of all other bills where I believed it appropriate to
do so, but I do not believe for one moment that that weakens in any way what I have seen tonight. For many
months I have assiduously avoided letters from people suggesting I might want to join a resident action group.
I have in no way given aid or comfort to any of the groups that appear to have sprung up in the area and
discovered my name listed amongst property owners there. That would not have been appropriate. Indeed, until
I dealt with emails in the past week I have certainly had no contact, and have made a point of not having
contact, with any of the residents in the area.

          This is one of the most offensive pieces of legislation I have seen—amongst many that I have regarded
as offensive over a long period of time. If this bill is passed it will set a precedent that this Government will live
to regret. It will be yet another nail in the Government's coffin as it goes to the next election, having put at risk
its capacity to deal with community groups right across New South Wales.

          Reverend the Hon. Dr GORDON MOYES [8.39 p.m.]: The Luna Park Site Amendment (Noise
Control) Bill amends the Luna Park Site Act 1990 in relation to noise emissions from the Luna Park site. The
purpose of the bill is to set a maximum permissible noise level for future noise emissions, protect both past
noise emissions and future noise emissions not exceeding the maximum permissible noise level from legal
proceedings and other noise abatement action, and provide that neither past noise emissions nor future noise
emissions not exceeding the maximum permissible noise level are to be taken to constitute a public or private
nuisance. The nature of the history behind this bill, its content and the implications arising from it, especially the
right of citizens to initiate claims in a court of law, require very close consideration and scrutiny.

          We all know Luna Park as an iconic tourist attraction of national importance. It is one of New South
Wales' major landmarks, along with the Harbour Bridge and the Opera House, having been established in 1935.
It is a nominated historic place on the Australian Heritage List. Luna Park is of prime importance to the New
South Wales tourism industry, with over 1.3 million people having visited the park since its inception. As
reported in the park's entry on the Australian Heritage Database, Luna Park represents the collective childhood
of Sydney. In fact, the park celebrated its seventieth birthday as recently as last week.

          Members may also be aware that Luna Park is being cultivated as a centre of public entertainment
activity, especially in view of the fact that on 11 October 2005 the State Government announced that, among
other things, Luna Park will get a five-screen cinema, a 14-storey office building and extended opening hours. It
is proposed that the 720-seat cinema will show art house and mainstream films. Internal operating hours will be
extended by two hours on New Year's Eve and one hour on five other nights a year, in line with rides and
outdoor amusements in other places. While this is a nuisance factor to local residents, it is no more so than in
other popular venues such as some clubs, which run rock concerts on New Year's Eve and other special nights
of the year.

         Although the face of Luna Park continues to smile ever widely, some have had cause to frown.
Members may remember the Big Dipper litigation of the mid 1990s, which saw the park close as a result of
financial distress. The Big Dipper was one of the main calling cards to the park, and as a result of the litigation
that ensued the Big Dipper was shut down. Luna Park was closed for the majority of the last 16 years, and was
open only for 13 months in total between 1988 and 2004. This has been a great respite for local residents, many
of whom have moved into units or flats during this period and now find themselves close to the source of
screaming noise.

         We know that on 31 October this year—I remind members that that is only 13 days away—the
Supreme Court is due to consider claims on behalf of residents adjacent to Luna Park on the basis of noise or
nuisance actions. This morning concerned residents involved in this litigation came to speak to crossbench
members about the nature of the litigation currently before the court and their adamant opposition to the bill.
The residents were emphatic in stating that they do not want Luna Park closed. In fact, the only aspect of Luna
Park's operations that they are gravely concerned about is the excessive noise from the three rides located at the
northern end of Coney Island. They are taking Luna Park Sydney Pty Ltd to the Supreme Court to achieve a
resolution of their concerns—indeed, a proper action. There are no sound barriers, artificial or natural, such as
the large cliff at the other end of Luna Park, creating a partition between the rides and residents, and thus the
noise generated by the rides may carry through unimpeded.

         If I may paint a brief picture, the rides in contention are located within the northern area of Coney
Island. This northern area is within approximately 20 to 30 metres of the closest residential area, and there are
about 1,000 apartments adjacent to the northern area of Coney Island. Clearly, therefore, the noise emanating
18704                                                LEGISLATIVE COUNCIL                                                18 October 2005


from the rides would directly affect residents living in this area, because the rides are right next door to them.
Most of the residents living adjacent to the northern area bought their apartments in the mid-1990s, when the
area was considered an open and undeveloped garden area.

         There are a number of arguments that form the residents' position for taking the operators of Luna Park
to court. First, the residents believe that the operators of Luna Park ought to abide by the publicly exhibited
plans for Luna Park, which show the area now housing the rides as a children's playground. Until today I was
not aware of that fact. One of the residents bought an apartment adjacent to the proposed children's playground
on the premise that the playground would be created. His wife has recently given birth to their child, and the
family, understandably, has been affected by the noise emanating from the rides located within 30 metres of
their balcony and windows. Second, the litigation is a nuisance action concerning the noise levels emanating
from the park. On this issue, a report by the Federal Department of the Environment entitled "Environmental
Indicators for National State of the Environment reporting human settlements" refers to the OECD, which said
that in 1986 threshold noise levels for nuisance of 55 to 60dB (A) and at levels above 65dB (A) reported
constrained behaviour patterns symptomatic of serious personal damage.

         Further, the report provides that "high noise levels would begin to interfere with comfort in residential
buildings where the maximum recommended in the inner suburbs is 35-40 dB (A)". There is definitely an issue
of amenity here. According to some reports, other legislation similar to this bill has not governed noise levels as
high as those prescribed by the bill. According to an acoustical consultant, Wilkinson Murray, who monitored
noise levels from Sydney Olympic Park, the highest maximum noise levels at residential receivers are in the
vicinity of 65dB (A). The consultant says, "the noise levels from the Olympics would therefore have been
substantially less than the 85dB (A) referred to in the bill".

          Third, the residents are of the view that legal action regarding nuisance noise does not threaten the
viability of Luna Park. I decided to look into this more closely. The basis of the litigation is the noise emanating
from 3 permanent rides out of a total of 21 rides operating on the site. It is yet to be seen whether the viability of
Luna Park in toto would be affected by 3 of the 21 rides. In her second reading speech the Minister said:
         What is at threat here is not the operation of the modern facilities at Luna Park, such as the Big Top or the cafe brasserie; what is
         at risk is the fundamental operation of Luna Park as a fun park.

I do not believe that to be accurate. The latest patronage figures provided by Luna Park Sydney for the month of
September this year recorded the Spider as being the sixth most popular ride, the Tumblebug the eighth most
popular, and the Ranger the ninth most popular—out of 15 rides. Mr Peter Hearne, the managing director of
Luna Park, made the claim that Luna Park "faces the real threat of closure if it is not protected from frivolous
noise complaints". Peter Hearne described the Supreme Court case between the residents and the company as
involving "frivolous noise complaints".

          Is this is indeed the case, will the claims of the surrounding residents and businesses send the park into
rack and ruin? Given the current court case, Peter Hearne has advised my staff that the total dollar revenue
figures are confidential, as is a financial breakdown of the operations of Luna Park Sydney. However, this is in
stark contrast to the situation in relation to the Big Dipper case in the 1990s, when financial information was
easily obtainable for the operators. This information is vital to understanding Luna Park Sydney Pty Ltd's case
for retaining the rides, if indeed the financial viability of the park is at threat from this and future litigation. The
company should come clean on its financial position if it wants us to take its argument seriously.

          We know that Luna Park currently derives its revenue from three arms of income: functions, events,
and rides. In a 2004 address to the Property Council of Australia Peter Hearne claimed that, of the three streams
of revenue the park receives, only 18 per cent was derived from rides. Considering that the three rides in
question rate only moderate patronage—and that is on September 2005 figures compared with all the rides in the
park—it would seem on the basis of information available to us that only a small but still significant percentage
of the park's revenue comes from those particular rides that are causing the biggest problem to the residents in
the area.

          A salient issue in my view is the series of deals that have been done between Luna Park Reserve Trust
and Metro Edgley, a wholly-owned subsidiary of the developer Multiplex. I will put my cards on the table here.
Through the 1980s and 1990s I worked very closely with Multiplex; it was a very fine firm with which I had
responsibility for the $320 million development of a Pitt Street property. I had no difficulty with that company
at all. In my dealings with Multiplex I found it to be a company of some integrity, and it certainly delivered
under budget and on time. So I am not speaking out of any personal angst on this matter. On the contrary, I have
nothing but high regard for what Multiplex did when I was involved in that $320 million development in Pitt
Street, Sydney.
18 October 2005                              LEGISLATIVE COUNCIL                                               18705


          The park trust has leased two separate locations, Milson Landing and the cafe and brasserie, to Metro
Edgley for 99 years, for which peppercorn rent of only $1 a year each is paid. The Luna Park car park is leased
directly to Multiplex also for a peppercorn rent of $1 per year. Currently, the annual profit derived by Multiplex
from its interest in those sites is estimated at $41.3 million, of which $4 is paid as a peppercorn rent to the trust,
and therefore to the people of New South Wales. I believe that the Government should have the papers
concerning this matter tabled in Parliament. If a claim is made that the documents are commercial in confidence,
like so many other important papers, they can be made available to members of this House securely. Such
documents cannot be copied or spoken about in the media. However, if they are tabled, we can satisfy ourselves
as to the veracity of the argument that if the residents' action succeeds in the Supreme Court, Luna Park will be
faced with rack and ruin.

          Luna Park Sydney has a 40-year lease on the fun park—that is, on the rides, on the Crystal Palace and
on Coney Island. It pays rent to the trust based on the park's turnover. But the trust returns all the money less
operating expenses, so that Luna Park Sydney can pay for the upkeep of the heritage elements of the park. That
is certainly understandable, given that the New South Wales Government has an interest in the continued
survival of such a fantastic historical asset. But why are developers like Metro Edgley and Multiplex afforded
financial assistance when developing land that does not in any way financially assist the Luna Park operators or
the continued survival of the site as a fun park? Moreover, how is it that the New South Wales Government can
claim that commercial developments associated with Luna Park are needed to keep it alive, when no stream of
revenue flows from them to the trust or to the park operator, Luna Park Sydney? Why will the Government not
table the details of any benefits to the people of New South Wales?

          I am sure we would all understand if those benefits are tabled and the Government says, "These are the
benefits that we shall get. It is unfortunate that some residents will be inconvenienced, but the whole of society
will benefit from these great benefits." Why does the Government not table those benefits? I am quite sure if
that the benefits were tabled and the Government said that, many of the residents who object to the noise would
say, "At least something is being done for our community."

         Recently yet another deal was struck between Multiplex and the Luna Park Reserve Trust. The
developer conglomerate will construct a 720-seat cinema and two multistorey buildings on the clifftop after the
park operator, which is controlled by Multiplex, considered that they were necessary for the park to survive.
This could be seen as bringing forward another $1 deal, giving Multiplex a $35 million profit for an annual
payment of $4 with regard to Crown land that is rented by Multiplex for effectively nothing. That is a good deal.
All I can think of is that those who work for Multiplex are much more sophisticated and better at their job of
getting a deal for their shareholders than our Government bureaucrats are at getting a deal for the people of New
South Wales.

         With regard to the new deal with Multiplex, again no money will go to the fun park operators, some of
whom are apparently about to be sent into receivership because of a court case involving three slightly above
break-even rides. Who is getting the benefit of all this? The operators? The trust? The people of New South
Wales? No. Multiplex is getting the benefit. The Government or Multiplex cannot argue that this is income
diversification to minimise financial reliance on rides. Income derived particularly from the developments and
the office blocks contribute nothing to the overall viability of the site, except as something other than a theme
park, as land is constantly being resumed for unrelated purposes. So the fundamental issue remains. If the
Government wants to continue to persevere with signing development leases that have no relationship to the
future of the site as a theme park, it should require the developer—whether it be Metro Edgley, Multiplex or any
other developer for that matter—to make a fair and sensible contribution through its lease to ensure the
continuation of the park. After all, we do not owe anything to the developers, especially if they are collecting
princely sums on a project that is built on Crown land and from which the people of New South Wales should be
getting a return.

          In summary, it is not at all clear how the park's viability would be affected on the basis of the closure of
3 of the 21 permanent rides. The bill seeks to put a stop to the current action before the Supreme Court. The
honourable member who spoke before me spoke eloquently about this matter from a judicial point of view. The
bill will deny the potential litigants the rights and freedom to have their claims determined by the court. It is a
retrospective attempt by the Government to deny citizens their rights to legal recourse. That is a serious denial
of justice for the residents who are concerned about this development. The Government is seeking to rule on this
matter with an iron fist. The Law Society was also concerned and wrote to the Minister in a letter dated
18 October in the following terms:
18706                                                LEGISLATIVE COUNCIL                                              18 October 2005


         There are major issues of concern to the Law Society in relation to the erosion of current and future legal rights of people … It
         would appear that Parliament is being asked to hastily approve retrospective legislation before a final determination is reached in
         the current Supreme Court proceedings … If approved by Parliament, the proposed amendment (referring to s.19A(5) of the
         proposed bill) has the effect of nullifying proceedings currently on foot before the Supreme Court, prohibiting the
         commencement of future actions in nuisance and providing for the increase in the maximum permissible noise level at any time
         by way of regulation under the principle Act …

         The Law Society is greatly concerned with what appears to be an unjustified exercise in the erosion of the legal rights of citizens
         of this State—

and I emphasise this passage because I am concerned about this matter—

         by rushing through the Parliamentary process amending legislation specifically aimed at bringing to a sudden end a matter which
         is currently before the Supreme Court.

The action before the Supreme Court should be allowed to run its course. It will be a matter of only a few weeks
and the issue will be resolved. An individual's right to action claims in court should be allowed to stand so long
as the issue is not frivolous, vexatious or a waste of the court's time. Considerable concern is expressed also
about the retrospective nature of the bill. Members of this House always treat issues of retrospectivity with great
caution.

          On this matter it seems to me that the Minister, Sandra Nori, is not listening to the populace and, as a
result, she will be stranded mid-harbour. A number of complex legal issues, in my view, must be adjudicated by
the judicial arm, and there is no better place to do that than in the Supreme Court. We cannot pass this bill and
leave residents without hope of addressing their grievances, even if it comes at a cost to the operators of Luna
Park. I remind honourable members that the party acting as defendant is Luna Park Sydney Pty Ltd, a corporate
entity with 50 per cent shareholding by Metro Edgley, which, in turn, is owned by the development giant
Multiplex—a shareholding by the managing director and partner of 34 per cent, and the resultant shareholding
by minority shareholders.

          Luna Park Sydney Pty Ltd is not the Luna Park Reserve Trust; it is a business entity and it can bear
some legal costs. It is unfair that we should have to adjudicate this issue. Proper attention must be given to the
merits of both sides in this litigation and, in this case, I would rather defer the decision-making process not to
political debate and argument but to the Supreme Court. That is the proper authority in this case. For example,
although one might be entirely sympathetic to the plight of the residents, there is a caveat emptor, or buyer
beware, consideration to think about in this case. A large proportion of the residents concerned purchased their
apartments from 1996 onwards. It is reported that residents behind the court action have, on average, been living
in the suburb only 2.5 years, many of them in six-unit blocks built along the clifftop above the park, three of
which were built in 2001 and a number the construction of which has just concluded. I sympathise with the
residents, but I am of the view that it must have been obvious to them what they exercised their choice to live in
that area. According to the Luna Park managing director, Peter Hearne, the residents should have known better.
He claims that the park always retained the right to move its rides anywhere around the site.

          When I checked on that claim this afternoon I was reliably informed that the plan of management that
details the location of rides within the park—and this is a problem for so many of the residents who feel they
have been let down because Luna Park Sydney Pty Ltd does not operate according to the plan of management—
is governed by the Crown Lands Act 1989. I might add that this is not a piece of legislation one would read in
bed at night for relaxation. Section 115 (1) of that Act provides:

         The Minister may from time to time alter a plan of management adopted under this Division or may cancel the plan.


In other words, I do not think the residents have a legal leg to stand on, and the Government is probably quite
right to dismiss their claim. The wording of section 115 has remained unamended since the inception of the
Crown Lands Act 1989. The inference is that, even given the judgment of the Supreme Court in 1995 in relation
to the Big Dipper, which was favourable to residents, the present residents, if properly informed, would have
known that the plan of management governing the park was amenable to change by the Minister at the stroke of
a pen. The Minister has referred to advice that suggests that Luna Park is complying with the relevant
development consent. The Minister for Tourism and Sport and Recreation, Sandra Nori, stated:

         If Luna Park is complying with the terms of its development consent and it is closed down, then no-one will invest in Sydney
         again … fighting the latest court case has already cost Luna Park more than $1 million and compensation could run into millions
         of dollars, sending this beloved tourist icon broke.
18 October 2005                              LEGISLATIVE COUNCIL                                             18707


I think that the Minister is quite wrong in that statement, as I indicated in argument earlier tonight. However,
according to the residents, the northern area of Coney Island—the area where the rides causing the nuisance are
located—is not governed by the terms of the development consent. It is said that the development consent does
not nominate any maximum or acceptable limit on any outside noise generated at Luna Park, whether from
rides, patrons or any other source. That is why I believe the Government should allow this matter to go before
the Supreme Court for adjudication.

         It is not clear how the Government will benefit from having this bill passed. It puzzles me that it is
pushing itself right to the edge with this bill, and I cannot see any benefit to the Government in doing that. It is
not clear whether any financial benefit will accrue to the Luna Park Reserve Trust—we have been told nothing
about that whatsoever—which is managed by the Sydney Harbour Foreshore Authority, and whether the sole
purpose of this bill will be to aid the developers who may be involved in future development.

         Consequently I urge the Government to withdraw this bill. The residents involved should be able to
have their grievances addressed by a higher authority, in this case the Supreme Court. The issues involved are
very complex; they deserve close consideration and cannot be solved by the Government simply cutting off any
redress by the residents involved. The retrospective nature of this bill—which has been introduced just before a
Supreme Court case that is to be heard in 13 days—is both immoral and improper.

         Ms SYLVIA HALE [9.05 p.m.]: I state at the outset that I wholeheartedly agree with the views
expressed by the previous two speakers. I applaud Reverend the Hon. Dr Gordon Moyes for tracing through the
connections between Multiplex and Metro Edgley and the very odd arrangements governing the leasing of land
at Luna Park, which is an iconic part of Sydney's history and heritage. It was first opened in 1935 on land that
had been the construction work site for the Sydney Harbour Bridge. In the decades after its opening Luna Park
established itself as a key much-loved entertainment venue for adults and children alike.

          Sadly, the park closed in 1979 after a tragic fire in the Ghost Train ride. It operated sporadically over
the following years until it opened again in its current guise in January 1995. It closed again and then reopened
in 2004. In that time the Government has come back to the Parliament on several occasions to amend the Luna
Park Act to pander to the current operators, Metro Edgley and Multiplex. The attempt today is no different. The
Government's development mate, Multiplex, and its subsidiary, Metro Edgley, have consistently violated the
spirit and intent of the Luna Park legislation. Unlike other operators, Metro Edgley has been permitted to
develop parts of the site. It has relocated rides on the site and operated extensive conference and function
facilities, and provided associated parking.

         As a result, large, noisy rides have been moved from areas of the site that were less intrusive to local
residents to areas that now cause maximum disturbance. As parts of the site have been developed, more rides
have been moved to the area north of Coney Island, an area originally earmarked in the plan of management as
suitable only for less noisy children's rides. Last week the Minister for Planning approved a new 720-seat, five-
screen cinema and two multistorey buildings in further capitulation to Multiplex.

         Metro Edgley has, bit by bit, changed the use of Luna Park. It was reopened in January 1995 but closed
again in May 1995 because of financial viability difficulties. In 1995 most of the revenue came from rides and
fun park activities. Today most of the revenue comes from functions and events, and the fun park operates on a
cost-recovery basis only. Last year in an address to the New South Wales Property Council the managing
director of Luna Park, Peter Hearne, indicated that the fun park is not a break-even proposition and that the
majority of revenue now comes from the function and events facilities.

          This bill is yet another step in the gradual handover of this prime harbourside site to the Government's
big donor mate, Multiplex. Since 1999 Multiplex has donated more than $272,000 to the Australian Labor Party,
of which $260,000 went directly to the New South Wales State branch of the ALP. Even in the grubby world of
political donations $260,000 is a very substantial contribution—a contribution not easily forgotten, either by the
giver or the receiver. Companies do not give $260,000 to a single political party for nothing. Luckily for
Multiplex, the ALP has repaid the debt in spades. The Government signed a 99-year lease with Metro Edgley
over the park and associated areas. Part of the deal included the signing over of a number of parcels of land for
$1 per lot. In return Multiplex agreed, through a complex series of trusts and re-leasing agreements, to keep the
fun park operating and to maintain and protect the heritage precincts of the park.

         The Government sold this deal to the people of New South Wales as a good deal which would see the
park fully protected, operating as a fun park at no cost to the Government. In at least one case, however, one of
18708                                               LEGISLATIVE COUNCIL                                              18 October 2005


these lots has been used as a commercial car park, with the proceeds not going to the Luna Park Trust for the
upkeep of the park but, instead, flowing directly into the coffers of Metro Edgley and ultimately Multiplex. This
is a clear case of public land now earning millions of dollars being handed over to private developers for $1.
Despite claiming that the fun park cannot operate profitably in its own right, the site is clearly turning a dividend
for Metro Edgley, which registered a $12.5 million profit for the 2003-04 financial year.

          This must be a welcome relief for Multiplex, Metro Edgley's owner, after Multiplex's disastrous
$68 million loss on the Wembley Stadium project in London. Multiplex is a company accustomed to playing
hard and fast with other people's money, so much so that it has been the subject of investigation by the
Australian Securities and Investment Commission. But this has not stopped Multiplex from pursuing its long-
term agenda at Luna Park, which is, I believe, to develop the site with residential and commercial office space.
Three years ago North Sydney Council approved a development application from Metro Edgley to build a range
of facilities, including restaurants, theatres, parking for 100 cars and a small commercial development. This was
consistent with the local environment plan and the master plan for the site, and came at the culmination of a
comprehensive consultation process with local residents.

          No-one is against the site being used in a way that meets the commercial needs of the developer so long
as the interests of local residents are also accommodated. Earlier this year General Purpose Standing Committee
No. 4 held an inquiry into the management of the Sydney Harbour Foreshore Authority [SHFA], which manages
the Luna Park site. The inquiry heard from numerous witnesses about the cosy relationship between the
Government, in the form of SHFA, the then Department of Planning, Infrastructure and Natural Resources and
the operators of Luna Park. The final report of that inquiry into the Sydney Harbour Foreshore Authority stated:

         The evidence received by the Committee in relation to Luna Park was highly critical of SHFA's management of the Luna Park
         Trust. Participants' disquiet about the Authority's role in Luna Park—its alleged pro-development bias and lack of transparency—
         echo similar concerns raised by participants from other precincts managed by SHFA. The recent proposal to build a 14-storey
         office block on the cliff site above Luna Park is seen by some critics as an example of SHFA's inability to strike an appropriate
         balance between its commercial and community interest.

Metro Edgley and Multiplex have a long-term agenda, dressed up as a deal to protect the long-term future of
Luna Park. The Government has in fact handed public land valued at well over $35 million to a private company
for development. Multiplex is not interested in running a fun park. It is a property development and construction
company.

         The Hon. Rick Colless: You don't like Multiplex, do you?

         Ms SYLVIA HALE: I do not like Multiplex, no, but I think that is a sentiment shared by many people
across the community. And I am sure Multiplex is highly unpopular in London. Multiplex is a property
development and construction company, and Luna Park is situated on one of the most sought-after sites on
Sydney Harbour. Multiplex's real agenda is to ultimately close the fun park and redevelop the site. I am sure
Multiplex would love to do it tomorrow in a single mega development, but if it takes a decade of death by a
thousand cuts, with multiple court battles and run-ins with residents and North Sydney Council, so be it. After
all, Multiplex has the State Government on side and in its pockets.
         This bill contains a number of dangerous provisions. The first is its retrospectivity, a provision that
effectively renders pointless the legal action currently under way to obtain redress for the noise and loss of
amenity experienced by residents living in the immediate vicinity of Luna Park and to thwart the imposition of
noise abatement measures. The second provision concerns the imposition of a noise limitation of 85 decibels
that can be exceeded for 1½ minutes in every 15-minute period, and the implicit endorsement of the notion that
it is acceptable for people to be exposed to noise levels up to 85 decibels over a prolonged period and to
intermittent exposure to anything above that, possibly up to 110 to 120 decibels.
         It is worth taking time to consider the significance of the decibel as a measure of noise. Like the
Richter scale, which measures earthquakes, it is a logarithmic measurement. An earthquake measured at 6 on the
Richter scale is 10 times more powerful than an earthquake measured at 5, and an earthquake measuring 7 is
100 times more powerful than a earthquake measuring 5. The decibel scale starts at zero—that is the softest
sound the human ear can detect—and the level of perceived loudness doubles every 10 decibels, with the upper
level of human hearing being at about 140 decibels. A report prepared by the Brisbane airport entitled "2003
Noise Management Strategies" discusses noise measurement, and states:
         A common benchmark level used in aircraft noise descriptors is 70 dB (a). 70 dB (a) is used as a benchmark because it is at this
         level that aircraft noise can interfere with everyday household activities. The 70 dB (a) benchmark was developed in considering
         the following point:
18 October 2005                                      LEGISLATIVE COUNCIL                                                             18709


         ▪        60 dB (a) is the noise level likely to interfere with conversation in a home (refer to Australian standard 2021 …), and

         ▪        The exterior walls of a house (with the window open) have been shown to reduce the outside level by 10 dB (a).

         On a typical day a person may be exposed to different noises louder than 70 dB (a) from cars, domestic appliances, music, people
         yelling or noise from construction sites. for example, a domestic vacuum cleaner has a typical noise level of 65 dB (a) and the
         noise level of a domestic dishwasher is 50 dB (a). however, as discussed earlier, it is not necessarily the decibel level alone which
         affects how a person perceives noise, but a range of other factors including repetitiveness and lifestyle.

The report also indicated that 90 decibels is the noise level most frequently associated with aircraft operations.
The level of noise that this bill would make permissible is eight times higher than the standard acceptable
background noise level, and two to four times higher than the noise generated by any freeway or road in peak
hour. It is only slightly less than the approximately 90 decibels experienced at Sydenham as a result of the
opening of the third runway—a level that the Federal Government deemed to render the areas of Sydenham
"unfit for human habitation" and resulted in the demolition of whole blocks of houses and the dispossession of
residents. Moreover, it is worrying that 85 decibels is not the maximum level of noise that would be permitted
under this bill. The bill will permit noise in excess of 85 decibels—possibly as high as 100 to 110 decibels—for
10 per cent of the time during any 15-minute period. An acoustic report prepared by Challis Consulting
summarises the impact of such noise levels as follows:

         The adoption of this criterion means that people living near the park will be subjected to noise levels that would not normally be
         permitted in any other residential situation in NSW by a Council, by a Court or by the Government itself if the pertinent
         environmental issues were to be assessed on the basis of existing maximum standards relating to permissible noise emission and
         environmental impact. In particular, the criteria must be related to the standards that have been currently adopted by the NSW
         Liquor Administration Board for licensed premises and related to the criterion of acceptability am unaided by the POEA
         [Protection of the Environment Administration Act 1991], which is defined by the definition of Offensive Noise in that Act.

If the Government sees fit to limit the emission of noise by licensed premises, and that is the standard for use
elsewhere, I find it extraordinarily difficult to understand why that same measure should not also apply to the
operations of Luna Park. The web site of the New South Wales Environment Protection Authority [EPA]
contains a discussion of noise pollution. It defines noise pollution as "unwanted or offensive sounds that
unreasonably intrude into our daily activities".

         The Hon. Rick Colless: It happens to me all the time.

         Ms SYLVIA HALE: I know. I am used to it here. It lists a number of sources of such pollution,
including neighbourhood and recreational noise. It goes on to note that "community awareness of environmental
noise has increased and there is a higher expectation for commonwealth, state and local government to reduce
noise levels". The EPA refers to an OECD report on the social costs of land transport which identified four
impacts of transport noise: productivity losses due to poor concentration, communication difficulties or fatigue
due to insufficient rest; health care costs to rectify loss of sleep; hearing problems or stress; and lowered
property values and loss of psychological wellbeing. Similar costs may be experienced through other forms of
noise pollution. The EPA site then turns from the costs of noise pollution to its effects:
         The WHO [World Health Organization] suggests that noise can affect human health and well-being in a number of ways,
         including annoyance reaction, sleep disturbance, interference with communication, performance effects, effects on social
         behaviour and hearing loss. Noise can cause annoyance and frustration as a result of interference, interruption and distraction.
         Activity disturbance is regarded as an important indicator of the community impact of noise …

         Research into the effects of noise on human health indicates a variety of health effects. People experiencing high noise levels …
         differ from those with less noise exposure in terms of: increased number of headaches, greater susceptibility to minor accidents,
         increased reliance on sedatives and sleeping pills, increased mental hospital admission rates …

I am not saying this: this is from the Government's site, the Environment Protection Authority site. It is not
something that has been magically taken out of the air. It points out the real consequences of excessive noise,
and continues:
         Exposure to noise is also associated with a range of possible physical effects including: colds, changes in blood pressure, other
         cardiovascular changes, increased general medical practice attendance, problems with the digestive system and general fatigue.
         …

         There is fairly consistent evidence that prolonged exposure to noise levels at or above 80 dB (A) can cause deafness. The amount
         of deafness depends upon the degree of exposure.

Yet the bill is proposing to permit noise levels that are for the bulk of the time up to 85 decibels, and for periods
may be in excess of that. The EPA then discusses major noise sources. Having noted that the OECD defined
traffic noise levels in the vicinity of 55 to 65 decibels as undesirable because sleep and amenity are affected at
18710                                                  LEGISLATIVE COUNCIL                                                18 October 2005


that level, it stated that noise levels greater than 65 decibels are unacceptable "because behaviour patterns are
constrained and health effects are demonstrable". Noise levels of 85 decibels, which this bill condones, are 100
times greater than noise levels of 65 decibels and are, by the EPA's own admission, "unacceptable". In its
discussion of neighbourhood and domestic noise, the EPA notes:

         Other significant sources of noise annoyance in Sydney include barking dogs, car alarms, garbage recycling, lawn-mowers,
         building construction and household noise … The national noise survey found that noise from barking dogs and road traffic have
         the greatest impact on residential communities … Noise from barking dogs is of particular concern because it is unpredictable
         and often happens repeatedly.

I am at a loss to know how the noise from barking dogs is qualitatively different from the noise emitted by the
operation and patrons of rides such as the Ranger, the Tumble Bug or the Spider. They are unpredictable and
extraordinarily loud, and for prolonged periods.

         The Hon. Rick Colless: When was the last time you went to Luna Park?

         The Hon. Amanda Fazio: 1942.

         Ms SYLVIA HALE: Some remarks do not bear commenting on.

         The Hon. Patricia Forsythe: It is now on the record.

         Ms SYLVIA HALE: Unfortunately, yes. It must be remembered that the 85 decibels is to be
calculated at the closest residential facade, which is defined in the bill as:

         (a)   the residential façade closest to the source of the noise, or

         (b)   if there is more than one source of noise, the residential façade closest to where the noise is loudest,

         where a reference to a residential façade is a reference to an outside wall of a building containing residential accommodation.

So the noise to which Luna Park employees will be exposed will be in excess of the 85 decibels. The New South
Wales occupational health and safety regulations require employers to take special protective measures if
workers are exposed to that level throughout a normal shift. While it will be 85 decibels at the facade, in the area
from which the noise emanates it will be far greater than that, bearing in mind that this is not a simple increase
in decibels but a logarithmic increase. It is not as though the Government was not aware of the likely outcome of
relocating rides from the southern side—where they had always been sited—to the northern side, closer to
residential dwellings. North Sydney council, in its submission objecting to the proposal, made it abundantly
clear that the noise impacts would be unacceptable.

         I state once again that the Greens want Luna Park to continue to operate as a fun park, but we object to
the cynical relocation of really noisy rides closer to residents and away from the protection offered by the cliff
and established trees. The children's playground area should have remained just that, an area for gentle rides
such as merry-go-rounds, and should not have been converted to an area dedicated to phenomenally noisy rides
such as the Ranger.

          What we object to is the relocation of rides, a relocation whose sole purpose is to permit Multiplex to
profit from the construction of even more commercial buildings on the site, but at the expense of the health and
well-being of the park's workers and nearby residents. The Government is responsible for acquiescing in
Multiplex's rapacious demands, knowing full well what the consequences would be. It is now trying to avoid
those consequences by depriving residents of access to the courts. Wilful folly is being compounded by an
outrageous denial of legal redress. On these grounds alone, if no other, this bill should be defeated.

          As I have already said, the bill contains provisions designed to remove the rights of residents to take the
operators of the park to court if they believe noise levels are being exceeded. Item [3] of schedule 1 clearly
inserts new section 19A into the Act to stop residents from taking legal proceedings. Worse still, this provision
is retrospective, in an attempt by the Government to nullify a case currently before the court. If passed, the bill
would terminate a Supreme Court case set down for 31 October. The bill provides that noise emissions from the
Luna Park site do not constitute a public or private nuisance. Item [5] inserts a single clause that protects past
noise emissions from legal proceedings and other noise abatement action, regardless of the level of those noise
emissions, and provides that any such emission is not to be taken to have constituted a public or private
nuisance. This is an extraordinary pre-emptive step by the Government. In April 2005 a small group of residents
18 October 2005                                       LEGISLATIVE COUNCIL                                                        18711


commenced proceedings in the Supreme Court under the tort of nuisance. This bill is an attempt to silence them.
Nuisance, according to Butterworth's Australian Legal Dictionary, is:

         An interference with a public or private inertest;

         An activity or state of affairs that causes damage to land including the health and safety of the public at large for example by
         emissions of noise or other pollutants.

Whether an action is reasonable may depend on its frequency and extent and the nature of the locality in
question. The residents have a right to have this decided by the courts. The Greens strongly support the
continuation of Luna Park as an amusement fun park. Nevertheless, the residents have a democratic and lawful
right to take grievances to any relevant authority and ultimately, if they so choose, pursue the matter through the
courts. The Greens do not support the Government's attempt with this bill to remove that right. This is not the
first time the Government has passed special legislation designed to circumvent the courts when it sees a
possible finding over the horizon that might not suit its political desires. The Government has attempted to
respond to criticism of its bill by claiming that Metro Edgley is operating within the conditions of its
development consent and claims that the bill is not designed to thwart any cases of a genuine breach. The
Minister's second reading speech states:

         Luna Park is operating within its conditions of development consent. No-one has claimed it is in breach of its development
         consent. The current action claims that the noise being made by Luna Park is a nuisance, notwithstanding the park has been
         operating in accordance with its development consent.

What the Minister fails to note is that the only restriction on noise levels relates to interior noise: there is no
limitation on the levels of external noise that may be created. Even from the Government there are conflicting
claims. The Minister's second reading speech also states:

         Luna Park could be the subject of successful legal action as a result of the noise that is emitted.

This statement sounds remarkably like an admission that there may be a possibility that noise levels are indeed
excessive and damaging to the health and welfare of residents. The Greens have opposed previous attempts by
the Government to override the rule of law. We saw a similar move with the Clyde Waste Transfer Terminal
(Special Provisions) Bill, which was designed to overturn a decision of the Land and Environment Court and
protect Collex—another Australian Labor Party donor. The Greens were alarmed then that the Government
thought it acceptable to circumvent and undermine both the planning system and the legal system, and we are
equally alarmed now.

         The rule of law is the ultimate arbiter in contests of competing interests. If either side is unhappy with
the outcome they are free to lodge an appeal. This is a fundamental feature of our legal system. With this bill the
Government is attempting to put itself above this principle, and basically above the law. The fact that we are
debating this bill today reflects the Government's inability and/or unwillingness to manage the sometimes
competing interests of residents, park operators, and visitors to Luna Park. With this bill the Government has
capitulated to its developer mates. Rather than stand up for the interests of the community the Government has
chosen to look they other way as Metro Edgley has extended the original footprint of the park and moved rides
to areas of the park that result in more noise for residents. Rides have been moved from under the cliff and other
areas providing noise barriers to areas that have instead exacerbated the noise problem.

         Some people have tried to portray opposition to this bill as killjoy North Shore NIMBYs up against
young funsters visiting the park. This is misleading and simplistic. Luna Park was there long before most of the
current generation of residents moved into the area. Residents must respect that Luna Park is an important part
of Sydney's entertainment precinct. In a prime inner city entertainment venue some level of noise is reasonable
and must be expected. Yet, at the same time, residents have a right to expect that noise will be limited to
reasonable hours, and mitigated wherever possible. The truly frustrating element in all this from the perspective
of both residents and onlookers is the suspicion that Metro Edgley is simply buying time until it can close the
park altogether. For it, local community outrage at noisy rides may eventually deliver Metro Edgley's ultimate
aim—to close the fun rides and build apartments.

           It is yet another move by the Government to give away publicly owned land to private developers. This
is a bill designed to remove legal avenues from community activists fighting against inappropriate development.
It is an overreaction by a heavy-handed government attempting to quash community dissent and create a cosy
operational environment for its developer mates. The Greens do not support this bill, or any other bill, that will
override the rule of law. I reiterate that the Greens do not wish to see Luna Park close. The vast majority of
18712                                               LEGISLATIVE COUNCIL                                             18 October 2005


residents agree. But they are increasingly frustrated at the arrogant and dismissive behaviour of Metro Edgley.
I give the final word to a resident of Milsons Point. I quote from an email that many members of this House
must have received in the last few days:

         The people of Sydney enjoy a common law right to claim damages if they have suffered a loss. Residents under the flight path
         had their windows double-glazed and were paid compensation when noise levels impacted on their right to quiet enjoyment of
         their homes. The Government purchased tracts of land under the flight path because it was deemed uninhabitable yet the residents
         of Milsons Point and surrounding areas will not only be denied any form of compensation but will also be denied the right to
         even lodge a complaint if this bill is passed.

         The Hon. RICK COLLESS [9.39 p.m.]: I will not debate the bill in the depth that the previous three
speakers have. I simply point out to the House issues surrounding the bill that I think are simply extraordinary.
The Luna Park Site Amendment (Noise Control) Bill lists in its overview three objectives. As I see it there are
three problems with the bill—the three objectives.

         The first objective is to set a maximum permissible noise level for future noise emissions, but a reading
of the bill shows that it does not set a maximum permissible noise level. Rather, it sets a maximum permissible
noise level of 85dB (A) (L10, 15 mins), which means, when one interprets the hieroglyphics of that equation, that a
maximum permissible noise level of 85 decibels can be exceeded for 10 per cent of the time, every 15 minutes.
There is no maximum limit during that 10 per cent of the time. So every 15 minutes the noise level could exceed
100 decibels, possibly 120 decibels, for a minute-and-a-half. An intolerable impost could affect people's lives,
particularly as the park operates up until 11 o'clock at night. The first objective of the bill, to set a maximum
permissible noise level, is nonsense. That is not what it will achieve at all.

          The second objective of the bill is to protect past noise emissions, and future noise emissions not
exceeding the maximum permissible noise level, from legal proceedings and other noise abatement action. That
retrospectivity provision of this legislation is nonsense. The Government has introduced a retrospective bill but
its retrospectivity clauses—as was pointed out by Reverend the Hon. Dr Gordon Moyes—impinge on the
activity of the courts. So far as I am concerned that is also nonsense.

         The third objective in the overview is to provide that neither past noise emissions, nor future noise
emissions not exceeding the maximum permissible noise level, are to be taken as constituting a public or private
nuisance. If I ride a motorcycle up the street and it creates a noise level of 90 or 100 decibels, that is deemed to
be a public nuisance and I could be charged. This bill is saying that there will no longer be a provision relating
to public or private nuisance by an organisation or facility exceeding a certain noise level. That is also nonsense.

         I understand that the residents in Luna Park area engaged the services of Dr Renzo Tonin, an acoustics
expert. He has pointed out that the 85 decibels is about the same amount of noise that a Harley-Davidson
motorcycle would make. He also pointed out that it exceeds the background noise level in the immediate
residential area by some 35 decibels. He further pointed out that this amount of noise is more than 22 decibels
higher than the current Roads and Traffic Authority standard for new collector roads in daytime traffic, and
more than 27 decibels louder than night-time traffic. In Dr Tonin's view there is no road in Sydney that would
experience traffic noise at that level. In fact, at that level Luna Park noise would be two to four times louder than
noise from any road you would care to nominate in Sydney, including any motorway in peak hour traffic.

         We are talking about a big increase in the noise level from Luna Park as a result of this legislation, a
noise level that would far exceed the noise experienced by those of us unfortunate enough to live adjacent to a
major road in the Sydney area. Dr Tonin also pointed out that it is the level you would expect if you were living
next to a railway line with non-stop trains—not that we would see those in Sydney, because we do not see very
many trains at all on our railway lines. We see a lot of stopped trains, but not many non-stop trains.

         The Hon. Duncan Gay: We see trains that do not stop at the station! They go straight through.

         The Hon. RICK COLLESS: You see a lot of them parked at the depot with the bonnet up. They have
all broken down for some reason. That noise level will continue from 10 o'clock in the morning until 11 o'clock
at night. Dr Tonin also pointed out that 85 decibels is also the level of sound you would experience living in
Tempe on land resumed by the Federal Government as unacceptable for human habitation due to aircraft noise,
and then you would be exposed to non-stop aircraft flying overhead. There are a lot of problems with this bill.
Previous speakers have alluded to the fact that members of the Coalition have been bombarded with emails from
residents concerned about these issues, and those emails made some very good points. I will quote from a few
emails that I think demonstrate the problems. The first is from a lady by the name of Joan Street. She stated:
18 October 2005                                       LEGISLATIVE COUNCIL                                                               18713


         I have lived in the Lavender Bay area since 1994 and it is extraordinary to think that the government is intent on depriving us of
         our civil rights and is prepared to bring such controversial legislation before the Parliament in order to do so. This is retrospective
         legislation depriving ordinary Australian citizens of their common-law rights.

She went on to say:

         Ordinary citizens have been completely ambushed by the government just days before our case was due to start. The court had
         granted us an expedited hearing which was due to start on 31st October. Why can we not let the law of the land decide this issue?
         …

         We are real people with a very real problem. The problem affects not just the people as reported in the press but it affects
         ordinary Australians living in three suburbs—McMahons Point, Lavender Bay and Milsons Point. …

         We don't want and have never wanted to close Luna Park.

That issue was raised in a number of emails as a complete furphy. The residents in those areas do not want to
see the park closed; they merely want to ensure that their rights are protected. One argument put forward in
favour of this legislation is that the park was there before the residents. That may well be true, but when the
residents arrived there the noisy rides were in a certain area of the park and the proposal now is to move them
into an area where they have not traditionally been. Joan Street has told me that one ride will be just 20 metres
from her balcony. When you consider those points, the park was not there before the residents. The residents
were there when the noisy rides were up the other end of the site. Now the noisy rides have been moved down
right under residents' balconies. That is something we need to consider. An email from Ros Dwyer stated:

         We are gravely concerned that the government is intent on retrospectively legislating the bill, which will deprive citizens of their
         common law rights. Is the Labor Party afraid that if the nuisance case is heard in the Supreme Court it will decide in favour of the
         residents?

Is the Labor Party afraid of that? I think it might be.

         Reverend the Hon. Dr Gordon Moyes: With costs!

          The Hon. RICK COLLESS: With costs, as Reverend the Hon. Dr Gordon Moyes has pointed out.
I think that is the reason this bill was introduced and rushed through the Legislative Assembly this afternoon,
then rushed into this place to be forced through this House tonight. The Government has done that because it
was concerned that, if it had not done so, the Supreme Court case was going to be successful. I have an email
from Susan Hesse, another resident who spoke about the rights of ordinary people. She wrote in part:

         This proposed new bill will remove the civil rights of ordinary people living New South Wales. As a concerned resident of
         Milsons Point, and as a New South Wales voter and taxpayer, I will be at the Parliament on Tuesday to watch the vote and I ask
         your support to refuse this bill.

I also received an email from Geoff Pritchard, who wrote:

         It is extraordinary to think that the government is intent on interfering with our rights to go to court and is prepared to bring such
         controversial legislation before the parliament in order to do so. …

         We can't understand what is going on here and think there is something very suspicious about the whole thing.

Is that not the truth? The email continues:

         We don't want to and have never wanted to close down Luna Park. That is a complete furphy being peddled by the government
         and Luna Park.

         Our objection is simply to three permanent and 1 - 2 holiday thrill rides which have been moved into the northern area of the park
         because of other major development on the traditional Luna Park site. …


         The objections are not to all rides in the northern area and they are not even against all thrill rides at Luna Park. Three thrill rides
         are in the southern area where they have always been and we are not complaining about them.


I also received an email from Kevin Seeto, who wrote:

         My major concerns are:


         The highly extraordinary proposed retrospective legislation—should this be passed, how can any Australian citizen trust or rely
         on any future government regarding any issue or government promise?
18714                                        LEGISLATIVE COUNCIL                                   18 October 2005


How could they? That is what this is all about: abusing the trust of ordinary people. I have a large stack of
emails, which I will not read onto the record. But they all carry a similar message, referring to retrospectivity
and removing people's common law rights. I have spoken to some of the crossbench members tonight, and they
have told me that they are thinking about supporting the Government on this bill. I suggest that they think
extremely carefully about that, because the common thread that has come from the three previous speakers
tonight is that the bill must not be passed and the Supreme Court case needs to proceed so the court can
determine the case. If members support the bill, and it passes through the House tonight, the Supreme Court case
will stop it dead in its tracks.

          I ask the Hon. Dr Arthur Chesterfield-Evans to think carefully about voting on this bill, as I suggest to
all crossbench members. If the bill is rejected, the Supreme Court case will proceed, and it is important that that
occur. I do not think the Government will be game enough to withdraw the bill, as Reverend the Hon.
Dr Gordon Moyes suggested. I do not think the Government has the intestinal fortitude to withdraw the bill and
allow the case to go to the Supreme Court. I suggest that crossbench members vote against the bill. We should
reject the bill at this point in time and allow the Supreme Court case to proceed. I believe that is by far the best
course of action we can take.

           The Hon. Dr PETER WONG [9.53 p.m.]: Firstly I acknowledge the efforts of the many residents
who live near Luna Park who have written to me. As someone who has always encouraged constituents to write
to me, I thank Jason Kates, Clements Leske, Eyal Levy, Kevin Seeto, Judith Chen, David Robinson, James
Greenwood, Peter Housden, Suzy Russ, Katarina and Rudiger Nibbe, Professor L. E. Mather, Douglas Forte,
William Powell, and many others who have kept me well informed on this issue. I am very disappointed that
this bill is before us, supposedly seeking to ensure the ongoing operation of Luna Park. I also note that not one
resident has so far written to us in support of the Government on this issue.

         I have a number of concerns relating to the bill. First, there are health risks associated with a high level
of noise, and, second, retrospective legislation indulges big business with immunities while denying natural
justice and procedural fairness for the ordinary citizens of New South Wales. If Luna Park had been operating
within the terms of its development consent, and in accordance with its artistic plan of management, there would
be no need for us to increase the permissible noise level to 85 decibels, nor would there be any basis in the
current case before the New South Wales Supreme Court.

          Depending on the duration of the noise, hearing sensitivity will ultimately decrease over time.
Therefore I ask the Government whether it believes that 85 decibels an acceptable level of noise that people
should be subjected to, and whether honourable members would be willing to endure similar noise levels near
their homes on a daily basis. As a doctor, I sympathise with the residents and fully understand their health-
related concerns. The noise-induced hazard that these residents constantly face will ultimately increase their
long-term risk of health damage. Studies in Germany have shown that noise above 60 decibels during the day is
related to the increase in cardiovascular risk.

          I do not intend to lecture the House on the health risks associated with high levels of noise pollution.
But I will make one more observation known, a study by Hartmut Ising on the "Exposure and Effect Indicators
of Environmental Noise", which showed the induced reaction time after a noisy episode, a time frame that varies
between 30 and 90 seconds. The study recorded a significant number of physical and mental reactions in a
decibel range of between 35 and 66 decibels. With the proposed 85 decibels the Government is seeking to
legislate, it would effectively amount to one of the highest levels permissible anywhere in the world, and it
would be four times as loud as the maximum 66 decibels used in the study.

         Putting the health issue aside, we have been told that this legislation is needed to ensure that Luna Park
remains viable and at no cost to the taxpayer. Unfortunately, however, we are not told about the complicated
wheeling and dealing that has taken place between Metro Edgley, which is owned by Multiplex, and which
contained a complicated set of agreements and leases. Neither have we been told of the undertakings given to
the residents living in the vicinity, assuring them that they would not be disadvantaged in any way.

          While millions of dollars will flow to Multiplex, the trust that holds the Luna Park site for the taxpayers
gets just $3. State political editor Anne Davies reported on 16 July 2005 that a Herald investigation revealed
that no stream of revenue would flow from commercial developments associated with Luna Park to the trust or
the park's operator. There is a pattern forming that shows that the Government is quick to approve outstanding
conditions for big business, particularly for businesses that have shown loyalty by donating to Labor Party
coffers. I cannot imagine how a government that is concerned with spending taxpayers' dollars, is able to justify
18 October 2005                               LEGISLATIVE COUNCIL                                                18715


a long-term lease and giving away Crown land valued at $35 million for $1 per lot. It raises suspicion about a
government doing constant favours for the owners of big business, with so little return for taxpayers that
changes the wellbeing of local residents. The Labor Party is bent on increasingly disenfranchising itself from the
electorate, seeking to introduce retrospective legislation designed to protect Luna Park's operators against
current and past breaches of the maximum noise levels permissible.

          I am particularly concerned that the Government has gone out of its way to introduce legislation that
will ultimately deny the right of an Australian citizen to have his or her day in court. If the bill is passed it will
override current actions in the New South Wales Supreme Court and ensure the operators of Luna Park
immunity from legal action with respect to emissions of noise, past and future. Simply put, if this bill is passed,
it will be a denial of natural justice and procedural fairness for New South Wales citizens before an unbiased
decision maker—the court.

          In introducing such legislation we are effectively saying to the citizens of New South Wales that we
can and will introduce retrospective legislation that will interfere with their rights; that we can and will
introduce retrospective legislation that will deprive individuals of the right to benefit from judgments they
obtain in proceedings brought under an existing law, or the right to continue proceedings that assert rights and
duties under that law. If this draconian legislation is passed the Government will be denying a fundamental right
in our democratic system: the common law right to bring an action in our courts. Legislation in general should
only have a prospective effect. I therefore cannot support this bill. This is legislation presented by a government
that has lost its way and has lost its soul. It is a morally corrupt legislation. I urge the Government to listen to the
call of Reverend the Hon. Dr Gordon Moyes to withdraw such ridiculous legislation.

         The Hon. CATHERINE CUSACK [10.01 p.m.]: On 9 June 1979 the old Luna Park was in full swing.
It was a place that I had visited as a child from the country and I had marvelled at the mirror rooms and the
rides; even the food seemed amazing. I, of course, got lost many times. At 10.15 p.m. that night everything
changed. Staff noticed smoke coming from the entrance and exit to the ghost train, and despite their swift and,
in some cases, heroic actions, they were not able to rescue all the passengers. The Ghost Train was engulfed in
flames and a father and his two young sons were killed, together with four boys who were classmates from a
Sydney school.

          As a year 9 student I knew the sister of one of the schoolboys who was killed. I did not know any of the
boys but I was as overwhelmed as everybody else by the news of the event. In Parliament we often talk about
children and seek to act on their behalf, but that is more to do with adults such as their parents and teachers.
I can tell the House that, as a teenager who was not able to vote or participate in our system, I and my generation
were utterly enraged at what had happened. The inquiries into the tragedy revealed all kinds of neglect and
shame that explained how such a terrible tragedy could have occurred.

         We know the impact of that event on Luna Park, but I remind the House, lest we forget, of the
magnitude of the tragedy and the extent to which the community was horrified by the senseless loss of seven
young lives—six boys and a father who was just taking his kids for a fun night out. The significance of this is
the belief most Sydneysiders felt at the time that Luna Park would never reopen. The operators at the time never
recovered and for many years the site lay vacant, empty and sad: there was very good reason to believe it would
never reopen. Certainly the conventional wisdom for many years was that it would not and could not resume its
operations. There was much speculation about the site, but for those who lived in and moved into the area it was
unimaginable that the park would resume operating.

          I commend the Hon. Rick Colless for making the point that those who seek to denigrate residents
affected by the operation by saying that Luna Park has always been there and that somehow they are being
selfish, completely overlook the point that for many years the old park was something that was seen as not ever
likely to be resurrected. While the site has long been designated for a theme park, it is wrong to say it has
always been there. There has been a huge discontinuity and people who live in the area are not in some way
suddenly running out of patience having put up with something for most of their lives. The old park is not the
new park and the residents are protesting against a whole new arrangement. I believe they are well and truly
entitled to their views.

         Many speakers have canvassed the technical issues of noise, the complex planning issues and the
question of retrospectivity. Tonight I am going to talk about the arrogance of this legislation, the destruction of
residents' rights and the fact that the Iemma Government, continuing the traditions of the Carr and other Labor
governments, believes that it can get away with this legislation by stereotyping those who oppose the bill. This
18716                                                  LEGISLATIVE COUNCIL                                               18 October 2005


means portraying the residents of the area as wealthy folk, selfishly preserving views and amenity at the expense
of fun seekers. I believe this is the worst form of stereotyping because it relies on the politics of envy to strip
ordinary citizens' rights away from ordinary residents. And, like all stereotyping, it is a weak and an insipid
excuse for meritorious argument. It fails every test of fairness and ignores the reality of the circumstances of the
good people who live there.

         Nobody in this State, whether they live up my way on the far North Coast—which some could argue is
the very far North Shore, I suppose—whether they live in the Riverina, the Illawarra, Western Sydney or the
North Shore, nobody should be stripped of their rights. Destroy the rights of one community and those rights are
extinguished for everyone else because once it is discretionary on the part of an arrogant government to
determine who has what rights, then, by definition of course, they are no longer rights at all. Residents and
families of the North Shore are entitled to the same consideration—no more and no less. I pause for a moment to
read out some of the wording of this proposed legislation that just horrifies me. Section 19A states:

         Legal proceedings and other noise abatement action

         (1)     No criminal proceedings, no civil proceedings (whether at law or in equity) and no noise abatement action may be taken
                 against any person with respect to the emission of noise from the Luna Park site.

         (2)     The emission of noise from the Luna Park site does not constitute a public or private nuisance.

What extraordinary wording to put into legislation! Schedule 3, the retrospectivity clause, states:

         Past noise emissions from use of land within the Luna Park site

         (1)     Any use of land within the Luna Park site that was an authorised use or dedicated use at any time during the relevant
                 period is taken to have been such a use:

         (a)     regardless of the noise arising from the use, or the combined noise arising from all or any such uses, at that time, and

         (b)     regardless of any maximum noise level to which the use was subject, pursuant to the conditions of any development
                 consent, at that time.

I find this extraordinary wording in legislation. As I have said, residents and families of the North Shore are
entitled to the same consideration as everybody else. As a Liberal I am appalled by such treatment and I realise
the enormity of the implications, for example, of the members opposite who choose to turn a blind eye. That is
why we are passionate in our opposition to the bill.

[Interruption]

         The PRESIDENT: Order! I call the Hon. Jan Burnswoods to order for the first time.

         The Hon. CATHERINE CUSACK: My friend and colleague Mrs Jillian Skinner has worked closely
with her community and in particular with the protectors of the Sydney Harbour foreshore. She has spoken long
and often in the party room and in the Parliament on the issue, particularly on the sale of long-term leases of
public land within the Luna Park zone.

          I would like to acknowledge the good citizens in the public gallery tonight. They are ordinary, honest
electors, who have listened with great patience and dignity to this debate. They are here to lay claim to the same
right that every other citizen in New South Wales is entitled to. I congratulate and thank them on their vigilance.
Of course, they are all galvanised by their own families but we need to appreciate that the work they have
performed is vital to protecting all our rights. We support them because they are right and their cause is right.
          I do not regard Luna Park as a fun place. There have been too many victims and this legislation
compounds that sad history. However, I do not suggest for a moment that the park should close. No member
here is qualified to second-guess the economics, the commercial interests, and to do the mathematics for the
operators. That is their business. Our job is to protect the standards and integrity of the process. Therefore, it is
crystal clear to the Opposition what its duty is tonight. I say to the Government: Listen to the people; respect all
of their rights and support integrity and fairness in our planning processes. It is not hard to know what to do.
This bill must be rejected, and I call on all honourable members who are thoughtful about the deeper issues to
vote against this immoral and unjust legislation,
         The Hon. Dr ARTHUR CHESTERFIELD-EVANS [10.10 p.m.]: Luna Park commenced after the
building of the Sydney Harbour Bridge in 1935 and is an iconic site. It was severely neglected in the 1970s.
18 October 2005                              LEGISLATIVE COUNCIL                                               18717


Indeed, maintenance was neglected and poor electric wiring, combined with discarded wrappers, led to a fire in
which a number of people were killed. For some time the park remained derelict until it was reactivated, I
understand by the Greiner Government, which injected $55 million into it. Wittingslow amusements, a family
company that had been running amusement parks for some time, then became a partner.

          At that time the Big Dipper was an icon; indeed it was a large ride by world standards. Harry Seidler,
the well-known architect, in the meantime built a unit on the cliff face. He sued the company and was successful
in getting rid of the Big Dipper, which as an attraction earned 19 per cent in direct revenue but was responsible
for about 35 per cent of returns for all attractions. When the Big Dipper was restricted to operating on Friday
and Saturday nights only, revenue dropped sufficiently low to cause the park to close down. The Liberal Party
spent $55 million trying to address the problem by allowing the Big Dipper to be constructed but, following
restrictions on its use, the park went broke. At that time I was horrified that the lawsuit went ahead. It should
have been obvious to anyone that to allow a person who bought property in the area in which a fun park had
been operating and near land that, in the minds of Sydneysiders, was likely to be used for a fun park again, to
sue for loss of amenity, would effectively kill the park and cause it to close down. And that is indeed what
happened.

         The Carr Government's answer to all problems is to flog off land and to get into bed with developers.
That is the only way it has ever fixed anything. The Government never borrows or owns anything, and it gets
diddled every time. But it continues to do the same thing. People should be under no illusions about the Carr
Government. In this case, the Carr Government made a deal with Multiplex as the preferred tenderer, gave away
Milsons Landing, and allowed a large car park to be constructed at the site. It had a plan of management, but
sadly, to use the example of Walsh Bay, plans of management are flexible. I do not know what interests
Multiplex has in amusements but it now owns Metro Edgley, which is running the amusement side of Luna
Park. Multiplex may regard the amusements as an additional feature to the functions it wants to run there.

          But that is all in the past. The amusements make noise, and this bill seeks to prevent a lawsuit similar to
that which caused the removal of the Big Dipper. The colour codes in the acoustics plan of management, which
accompanies the plan of management, showed levels close to 70 to 80 decibels along the edge of the park on the
eastern side, south of Coney Island, where the cliff is, and north of Coney Island. If houses are low and close to
the cliff, the cliff will form a barrier, but if they are on the same level, the presence of the cliff will make no
difference. If a building is considerably higher than the cliff, any noise will miss the cliff. In other words, it is
the ratio between the amount of noise generated and the distance the noise has to travel and, under the inverse
square law, the intensity of the noise varies with the square of the distance.
         My physics may be a bit rusty but I seem to recall that for every 20 metres noise travels its level drops
by three decibels—that is, by about half. If someone were considering buying a house or unit in the Milsons
Point area and looked at the acoustics plan when the rides were operating, he would have realised that the noise
was quite loud. It is one thing to look at an acoustics map and another to fully appreciate how loud rides may be
if they are not operating at the time. However, I understand that the acoustics plan was in existence at the
relevant times, so that when the operators suggest they were working within the existing noise plan, they have a
case. Whether or not people understand the plan is another question, but it is important to note that there was an
acoustics noise plan and the operators adhered to that plan.
        I understand that the current lawsuit in the Supreme Court, which will be heard reasonably soon,
involves three of 15 rides. It has been said that most of the noise problems relate to shouting or screaming by
people using the thrill or excitement rides. One can get rid of the majority of mechanical noise from a ride with
good noise engineering. There is always room for improvement, but if the noise is below the noise level of the
machinery, working on its own, and the distance from the residents is below a certain level, there ceases to be a
problem.
          If the plaintiff is successful with regard to three of 15 rides, there is nothing to stop action being taken
against the remaining 12 rides. If the shouting relates to excitement, similar levels of excitement will come from
other rides. I have been told that the park has been extended from north of Coney Island, where there were
previously no rides, and that some of the offending rides are located south of Coney Island. The buildings are
now taller than the cliff face, so the presence of the cliff face is only important for the levels immediately up the
cliff face, where the cliff actually forms a protective barrier. So I am not sure that whether it is north or south
will solve the problem.

         My house is three degrees off the flight path directly from Sydney airport running north. When I was
building my home we spent an extra $25,000 on noise protection comprising a membrane over the roof, a
18718                                         LEGISLATIVE COUNCIL                                     18 October 2005


laminated dais and additional panels in the walls and the ceiling. Noise installation is not cheap but it can be
made less expensive if one anticipates the problem. While noise protection does not work if people go out on the
balcony or open windows, I believe it works to significantly reduce noise levels if a property is designed for a
specific noise level. I have personally put my money into such an endeavour and I have seen the results, so I
have some experience of it.

         People from Metro Edgley say that if the noise of Luna Park or the lawsuit is in the news, bookings go
down. I can understand that. If they are trying to get people to pay a premium for the facilities booking, the fact
that people can go out and enjoy some rides would increase the value of the letting. Correspondingly, if people
think that either they will go broke or the rides will not be available, they might go to another venue, so it will
affect other facilities as well. Certainty is always needed in economics—that is a reality. This legislation has
some bad features. It contains retrospectivity provisions, which are generally bad.

         The Hon. Patricia Forsythe: Name one other time the Democrats have supported retrospectivity!

         The Hon. Dr ARTHUR CHESTERFIELD-EVANS: Certainly, it is rare that the Democrats support
retrospectivity.

         The Hon. Catherine Cusack: Never before have you done it!

         The Hon. Dr ARTHUR CHESTERFIELD-EVANS: I am not sure whether that is true.
Retrospectivity is a bad feature of this legislation. On the other hand, during the Seidler case against the Big
Dipper operator I was of the view that once a decision had been made to go ahead with the Big Dipper it should
have been protected against such legislation, given that it was part of the proposal in the first place and Seidler
could reasonably have expected that the fun park would have a Big Dipper on the site of the original Big Dipper.
Admittedly, the new Big Dipper was taller but it was quieter than the previous Big Dipper in terms of
mechanical noise, and the shouting was perhaps a little higher given that the new ride was higher.

          Another bad aspect of this legislation is that it will override the courts. The Government has done this
before, again setting a bad precedent. In terms of Walsh Bay, legislation overrode the Luna Park National Trust
under Barry O'Keefe, who claimed that Walsh Bay was one building with five projections rather than five
buildings and thus should be kept as a whole. We passed that legislation—I might say, with Opposition support
because a big property developer was involved—at about three o'clock in the morning to prevent Barry O'Keefe
taking the Luna Park National Trust to court at 10 o'clock that same morning. The Collex waste dump
legislation passed, again overriding the court processes, because the Government wanted to support the Collex
waste dump at Granville. The Opposition supported that legislation as well, overriding due process. So members
opposite are a precious lot when it suits!

          In terms of sound levels, the noise plan, which dates from 2002, states that sounds go up to
120 decibels with 3,000 people shouting, and that rides like the Wild Mouse generate about 117 decibels and the
Carousel 114 decibels. That is at the point of generation. Of course, the level falls off at about three decibels per
20 metres. It may fall off more rapidly than that—I am not sure of the rate of fall. It also has the fudge factor, if
one wants to call it that—the L10, which is the level that is exceeded for 10 per cent of the time. That is quite
significant because shouts that pepper the background increase the noise. I am not pretending that the noise level
is not a problem; indeed, it is a problem.

         The Hon. John Ryan: That is what this is about—the noise level.

         The Hon. Dr ARTHUR CHESTERFIELD-EVANS: The key point is that if this bill succeeds, there
will be a loss of amenity for residents. They will lose their costs and they will not get a day in court. I confess
that I will not be popular in Milson's Point. If the bill fails, there will be lawsuits; and if the lawsuits are
successful, I think there will be further law suits. In the end there will be no rides, and I believe it will be the end
of Luna Park. I seriously think that we are voting for a continuation of Luna Park. There has been an acoustic
plan of management for Luna Park, which is right or wrong. There have been concessions to Multiplex, again
right or wrong, and I think the Government has not managed that very well. Indeed, I often wonder what other
benefits the Government may receive.

         Be that as it may, we are basically voting on whether or not Luna Park survives. The desirable
objective is to achieve levels of noise that are, what is called in occupational medicine, ALARA—that is, as low
as reasonably achievable. I have never heard in discussion of this matter any mention of achieving a noise level
18 October 2005                              LEGISLATIVE COUNCIL                                              18719


that is as low as reasonably achievable. Park management says that it is doing its best to monitor noise in a
number of areas. If it finds noise the level of which it believes can be changed, and from the noise patterns of
that monitoring it can discover which ride is causing the noise, or if there is an abnormal source of noise from a
speaker being played too loudly or a piece of machinery running roughly, it can fix that.

         There should be an objective to get the noise level down. One thing about noise and the regulation of
things generally in Australia and in America is that levels tend to be set and levels increase to that which is set
because it minimises costs to do so, assuming that I am talking about a pollutant or a noise level. In Europe
levels are racked down as technology improves and people are able to lower the level of, for example, a toxic
substance. The level comes down and follows the best available technology by a couple of years. In other words,
the level automatically racks down. In terms of what should happen with the noise levels, we should have an
ALARA, a moving target level that should come down. Certainly, the current park management claim that the
amount of noise from the park is lower than ever and the problem, according to management, is that now there
are more residents than ever. I do not know whether that is true. Perhaps if we have an ALARA system we will
get the noise as low as reasonably achievable.

         The Hon. John Ryan: Where's that in this bill?

         The Hon. Dr ARTHUR CHESTERFIELD-EVANS: It is not in the bill—that is the point. I am
talking about the way the problem should be dealt with. We could have a noise ombudsman who works at
lowering the noise level. The only reason I am voting for this bill—and honourable members have probably
gathered that I will vote for this bill because they have been giving me a hard time, and that is all right—is that I
believe the park will not survive otherwise. I apologise to the people in the public gallery for that. I believe that
Luna Park will not survive if this bill does not go through. I believe that we are trying to keep Luna Park. We
must move on noise levels and do the best we can. However, if the main part of the noise comes from people
getting excited and shouting, clearly it is a difficult problem and we need to look at sound attenuation.

         Reverend the Hon. FRED NILE [10.29 p.m.]: Already Reverend the Hon. Dr Gordon Moyes has
given a comprehensive coverage of the major points of the Luna Park Site Amendment (Noise Control) Bill.
I want to give my personal perspective on the bill. Like other honourable members I have an emotional
attachment to Luna Park. As a teenager in the 1950s I attended Luna Park on a number of occasions. I confess
that my uncle Jim Clark was in charge of the dodgem cars and I had many free rides on them. I became an
expert dodgem car driver with all the practice I had driving them, and after all the years I have been a member
of this House I feel that we are going round in a circle. We always seem to be discussing Luna Park and how to
keep it going. We are doing that again tonight. From the beginning I made a commitment that I would do all I
could to keep Luna Park open and viable as a major, if not the only, entertainment centre of its type in Sydney.
Its serves Sydney residents, country residents who come to Sydney, and interstate visitors.

         I do not always agree with the Hon. Dr Arthur Chesterfield-Evans, but with his last words he took my
opening words. He said tonight we are debating the future of Luna Park. I came to that conclusion as well.
I believe there is more than a strong possibility that the court case, if it proceeds, will succeed because of the
clever way it has been taken to court—on the basis of nuisance. I understand among the residents who have
taken the case are a major developer and four residents who have expert legal advisers. So there is a very good
chance they will win the case, and it will be the torpedo that sinks Luna Park. If that case succeeds, many people
who have been involved with Luna Park and who have booked events there, will feel the future of the park is
now in doubt and will withdraw their bookings. The park's financial viability will be undermined.

         We seem to be debating two issues that keep getting tangled. One is noise. That should be the issue we
are debating, but there seems to be an underlying issue that residents have raised with me and with other
honourable members: the Government's financial arrangements with Multiplex. That is a separate issue. That
can be dealt with through other procedures of the House. Perhaps there should be a parliamentary inquiry into
whether the financial arrangements with Multiplex should be renegotiated by the Government if they are too
generous. They certainly should be transparent. I share the concerns of the residents in that regard, but that is a
separate issue to the one we are debating tonight—the ongoing legal action and the continuing threat of
subsequent legal action, with the owners of Luna Park having to engage in court case after court case.
I understand already a million dollars has been expended for that purpose and that will continue, case after case.

         Luna Park faces the real threat of closure if it is not protected from frivolous noise complaints while it
continues to operate within approved noise limits. The legislation before us will prevent noise-based legal action
against the park provided it is operating within the requirements of the development application and the acoustic
18720                                              LEGISLATIVE COUNCIL                                            18 October 2005


plan of management. This legislation will help to guarantee the future of the fun park. I understand that the
current court case is brought by a property developer and four local residents. In all the briefings we obtained
from residents the main objection seems to be the screams of patrons on rides. At some point the people
enjoying themselves on the rides scream. I made a suggestion to my colleague Reverend the Hon. Dr Gordon
Moyes that there was a simple solution to this problem.

         Reverend the Hon. Dr Gordon Moyes: Don't say it, Fred!

          Reverend the Hon. FRED NILE: I will say it. The simple solution is to prohibit all females from
using these machines. Engineers have said the high-pitched screams of females are breaking the noise levels.
Obviously preventing females from using the rides would affect profitability, because young men would not go
on the rides without females. Obviously that would not be solution. It is not surprising that this bill has come to
this House at this time. The Government introduced a regulation on 9 March with a similar objective to this
legislation, but the Opposition gave notice of a disallowance motion against it and kept adjourning the matter.
So, that motion never came to a climax. The regulation in March was a predecessor to this legislation. The
Government, in its wisdom, has decided it is better to have legislation than a regulation. The regulation that has
been superseded by this bill was brought about because of threats by the mayor of North Sydney council, who
said, "If they can't fix the Ranger, they should close it and move it." Previous action to close or to move rides
has resulted in the closure of the entire park, which is what happened in 1996 after the campaign against the Big
Dipper. That is why I do not think it is overstating the case to say that tonight we are debating the future of Luna
Park. The honourable member for North Shore acknowledged the destabilising effects of such threats on the
viability of the park when she said in Parliament:

         Concerns have been expressed about the noise of the Big Dipper, which, as we know, led to the closure of Luna Park. That was a
         great shame.

In order to ensure that Luna Park remains open for the enjoyment of all Sydneysiders we must provide security
for the operators against the uncertainty generated by the threat to move or close rides. The bill is intended to
give that certainty. I know from briefings I have had that when there is uncertainty about the future of Luna Park
threats to its viability dramatically increase because many of the organisations planning to use the park cancel
their bookings. The financial viability of the park is undermined by the threat of legal action, let alone a
successful legal action. I believe that if the case proceeds, it will succeed, and that would be a major blow to the
future of Luna Park.
         I acknowledge the sincerity of the residents. Those I have spoken to do not want Luna Park to close.
However, people with good intentions can achieve a result they do not expect. It would be sad if the park ceased
to function as an entertainment area and became a block of units—which I believe is a possibility in the future if
we do not do all we can to keep Luna Park functioning as an entertainment venue.
         The Hon. JON JENKINS [10.39 p.m.]: The history of Luna Park is a long and somewhat troubled
one. Previously action by residents resulted in the removal of one of the most popular rides and the subsequent
closure of the park due to noise issues very similar to those being discussed tonight. Subsequently Luna Park
opened again and now has added several new rides in various other sites within the park. As the problem has
been explained to us, it is not the rides themselves that cause the problem but rather the screams of terrified,
excited fans. The noise level has been measured at up to 85 decibels at the boundary of some adjoining
properties. That is loud and if it were continuous, 24 hours a day, it would be unbearable. The rides can operate
from Sunday to Thursday from 10.00 a.m. to 10.00 p.m. and on Friday and Saturday and public holidays from
10 a.m. to midnight.
         I have a great deal of sympathy for the people who live next to Luna Park. To have 85 decibels of
screaming, regardless of frequency, from 10.00 a.m. until 10.00 p.m. would be very disconcerting. But these
things are not without precedent. People live under flight paths and near very busy highways. Whenever
concrete freeways are constructed there are massive problems with noise in people's homes. Aircraft operate
from 6.00 a.m. until 10.00 p.m. at Mascot. I come from a quiet seaside town. The most noise I get at night is the
waves breaking on the beach. However, having said that, if I were to buy a house in Sydney—I probably could
not afford it—I certainly would not buy a house under the flight path, nor would I buy a house anywhere near
Luna Park, Telstra Stadium, the Sydney Cricket Ground or any other major tourist venue where I could
reasonably expect to be disturbed regularly. In this respect one could argue that the residents could not have
other than expected to be disturbed by the traffic and noise surrounding Luna Park.
         Some of the residents have argued, with justification, that the design of Luna Park has changed
recently. They have argued that the management of Luna Park has placed several potentially noisy rides—or
18 October 2005                                LEGISLATIVE COUNCIL                                                 18721


rather rides which induce noise from their patrons—at the northern end of the park very close to residential
dwellings and that it is this decision by the management of Luna Park that has created the problem. For this
latter reason alone—I understand that the Government already has the numbers to pass the bill—were the
decision up to me I would have insisted that the existing court action be allowed to reach its ultimate end, but I
would have supported legislation which effectively removed further attempts at remedy. The logic of this is
quite simple: the court may well have reached a decision that noise was a nuisance and may have awarded
substantial damages to the litigants.

         However, it would then have had to take into account contributory matters in that any normal,
reasonable residents would have expected that Luna Park at some point in the future would have utilised the
northern end of the park for potentially noisy activities. There has never been anything in development
applications, rulings of any court, or planning or infrastructure department that would have prevented or has
prevented Luna Park management from doing just this. In fact it was a reasonable expectation that it might have
occurred in the future. A rational and logical person could well have expected that. In view of that I would
contend that the average, reasonable purchaser of a unit anywhere within the vicinity of Luna Park could have at
least expected that there would be a good chance of being influenced by a variety of factors, including noise, in
the future.

          I think it was an Opposition member who referred to the removal of people's rights. Every piece of
legislation we pass in this House removes people's rights. It is part of what legislation does, unfortunately. At
this very time our Federal Government and all the State governments have agreed to legislate away some of the
very fundamental rights of democracy without even consulting the people to any great degree. Removal of rights
has to be weighed and balanced against the gains from removing those rights. I also do not agree with the loss
argument. Any purchase, whether it be for a residence or an investment, is a risk. If you purchase shares or an
investment property there are many things that can go wrong. They have gone wrong for me, and I am sure for
many other people.

         The Hon. Patricia Forsythe: It is life.

          The Hon. JON JENKINS: It is part of life. It is a risk that you take when you spend money.
Sometimes you win and you make some money; sometimes you lose and you lose some money. This bill is
retrospective. For me this is the sticking point. As a simple principle, I do not like retrospective legislation and
generally only consider it to be legitimate when it is used to correct some obvious wrong which is the
unintended consequence of an error or when there is some great social justice or democratic principle at risk. In
this case there is absolutely no legitimate reason to pass retrospective legislation.

         If there is some problem with common law or statute law with regard to noise or the nuisance caused
by noise then fix that; do not pass retrospective legislation to eliminate the problem. One has to ask about the
timing of this retrospective legislation just before the court action starts. I expended considerable effort today
with Parliamentary Counsel trying to find ways to amend the bill to allow the existing litigants to proceed with
the case to its eventual conclusion. But Parliamentary Counsel advised me that there is no way that the bill can
be amended to protect the existing litigants while maintaining the thrust of the bill, which is to protect Luna
Park from being litigated out of existence.

         On that basis, as I have said, were the decision up to me I would have asked the Government to
withdraw the bill and allow the court case to proceed. However, I take this opportunity to put some comments
on the record with regard to Luna Park. Basically, a large company called Multiplex owns Luna Park through
another company called Metro Edgley. Multiplex and the New South Wales Government are very good
friends—I mean very good friends! Multiplex wants to develop the park with lots of residential and commercial
development and make lots of money. Like all big companies, its only intention is to make more money, and it
really does not care how it does it. And, of course, if it shares a little bit of that largess with its favourite political
party, well, where is the harm?

        In précis, if Luna Park succeeds and Multiplex makes lots of money, well and good. Conversely, if
Luna Park fails and Multiplex can then develop the Luna Park site for a residential and commercial precinct it
also makes money. So Multiplex wins in both directions. Many, but not all, of the residents who live around
Luna Park would also like to see Luna Park disappear. This would of course mean they would have a quieter
environment. North Sydney Council, which is certainly no friend of mine, is supporting the local residents in
wanting Luna Park to disappear as well, and it has joined with local residents in court action which, if
successful, would effectively cripple Luna Park.
18722                                        LEGISLATIVE COUNCIL                                   18 October 2005


          I am sorry, but despite all the protestations I cannot but believe that at least some, not all but some, of
the lobbyists and litigants in this matter are driven more by profit motive than anything else. This bill that the
State Government wants to pass will basically prevent the local residents and North Sydney Council from any
further legal action with regard to Luna Park and give it and its special friends Multiplex unchallenged control.
I repeat that if the bill fails and the court action succeeds—on the advice I have it has a good chance of
succeeding—then Metro Edgley will almost certainly fail and Luna Park will also fail and effectively become a
Multiplex development.

         The Hon. Melinda Pavey: So you are judge and jury?

          The Hon. JON JENKINS: Yes. That is what we do. Conversely, if this legislation succeeds and
Multiplex gets to run the site for continued profit without interference, Multiplex also wins. This retrospective
legislation will effectively give the New South Wales Government and its friend Multiplex absolute control over
the Luna Park site without any purview of the local council or the courts. Do not mistake the intention here.
Luna Park's icon status and its place in our culture are irrelevant. All that matters here is how much money can
be made by Multiplex and how much of that will flow into donations to political parties of both persuasions. It
does not really matter which way I vote—

         The Hon. Melinda Pavey: It does!

         The Hon. JON JENKINS: No, it does not. I would like to ask Multiplex to at least sit down with the
affected residents and try to take whatever measures are possible. In the end what does it matter to Multiplex if
the rides are at the south end of the park or at the north end of the park?

         The Hon. IAN MACDONALD (Minister for Natural Resources, Minister for Primary Industries, and
Minister for Mineral Resources) [10.50 p.m.], in reply: I thank honourable members for their comments in this
debate. The amendments in this bill arise from the need to secure the ongoing operation of Luna Park, and that
has been made clear. This bill will create legislative certainty for the operators of Luna Park, and the residents in
the area, by providing that legal proceedings may not be commenced in respect of noise levels being emitted
from the park, provided that the noise being emitted is within the prescribed maximum noise level. This level
provides that noise from any activity cannot exceed 85dB (A).

         There is an expectation that the operators of Luna Park will run the park responsibly and with proper
consideration of their neighbours. This bill creates legislative certainty for the operators of Luna Park and the
residents in the area by clearly stating that legal proceedings cannot be commenced when the noise is within the
permissible maximum level that can be emitted by the park. I am advised that since its reopening in 2004 the
park has been operating below the level of 85 decibels. However, a buffer is required to take into account peaks
in noise levels, such as screams from people on rides, or weather conditions. It is anticipated that if levels reach
85 decibels these will be momentary, that is, that the maximum permissible noise level will not be sustained for
extended periods of time.

         The maximum permissible noise level is only likely to be reached as a result of screams from patrons
on rides, and not by the mechanical operation of the ride. To ensure that this is the case, the bill stipulates that
the maximum permissible noise level of 85 decibels must not occur for longer than 15 minutes. If noise levels
from Luna Park exceed the maximum permissible noise level, complainants may be able to take action against
the park. Further, this provision does not change the controls in place for the park under its development
consent. This means that where development consent for Luna Park deals with the issue of noise, those
standards will continue to apply and action can be taken under the Environmental Planning and Assessment Act
to enforce those standards.

         For example, this means that noise emanating from internal spaces must not exceed 60dB (A). Luna
Park currently employs around 600 people. Luna Park is only seeking to operate within its strict development
application conditions on noise. This is not about having all noise controls lifted. Revenue from the park
operations accounts for only 55 per cent of all Luna Park revenue. The other 45 per cent comprises income from
the functions and entertainment businesses hosting shows and dealers in the Big Top and Crystal Palace. People
and promoters are frightened to book events at Luna Park because they fear that Luna Park will be closed down
again as a result of noise complaints.

         The court case will cost approximately $1.2 million of unbudgeted funds to defend, $850,000 having
already been spent with little prospect of recovering much of those funds. The current court actions are having a
18 October 2005                              LEGISLATIVE COUNCIL                                             18723


direct and detrimental impact on Luna Park businesses, and are threatening the park's viability now. Currently
Luna Park is tracking close to budget on amusement operations, but is tracking below budget on its functions
and entertainment operations. Luna Park lost a $6,000 inbound tourist package set for 2006 because the inbound
tourist operator was not confident that Luna Park would remain open.

          In March, when the Sydney Morning Herald article appeared about North Sydney Council's actions, six
hirers rang that day to cancel their bookings. When Premier Carr made his announcement about protecting Luna
Park from actions under the Protection of the Environment Operations Act, Luna Park received over
100 inquiries and 31 bookings, and wrote $610,000 worth of business in a week—later converted to more than
$2 million worth of business. Luna Park is operating within its approved development application conditions. It
is important to clarify the impact of the bill on the proceedings currently before the Supreme Court. The
legislation does not stop the current proceedings and does not dismiss the current proceedings. As stated by the
Minister in the other place, the bill changes the underlying law, which will apply in respect of those
proceedings.

          The transitional provisions specify that no action for nuisance or negligence can be maintained in
respect of the period from 30 March 2004 to the date of commencement. Damages cannot be awarded in respect
of this period, regardless of the noise level. Obviously this does not affect or overturn any award of damages
handed down prior to the bill becoming law. Any injunction granted by a court before the bill becomes law will,
however, cease to have effect. I am advised, however, that damages can still be awarded in the current
proceedings in respect of any noise emitted after commencement of this legislation and before judgment is
handed down. It will be necessary to show, however, that the noise exceeds the maximum permissible noise
level set down in the Act. An injunction could also be granted in the current proceedings if the noise exceeds the
maximum permissible noise level.

          Much has been said about the relocation of rides. The operators of Luna Park are entitled to do this
under the terms of the development consent. Regardless of where the rides are located, Luna Park must still
comply with the acoustic plan of management under the development consent. It has also been consistently
stated that those who oppose the bill want Luna Park to stay open. The reality is, however, that as long as the
law remains unclear, the future of Luna Park is uncertain. If the current action is successful, there is a very real
risk that Luna Park will close. Luna Park needs to have certainty. It has complied with its development consent
to date. It is the Government's view that that should be enough. Let me make it clear that legal proceedings will
still be allowed if the maximum permissible noise level is exceeded. Further, Luna Park will still be required by
law to comply with its development consent. I commend the bill to the House.

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

         The House divided.

                                                     Ayes, 20

                   Ms Burnswoods                  Ms Griffin                     Ms Robertson
                   Mr Catanzariti                 Mr Hatzistergos                Mr Roozendaal
                   Dr Chesterfield-Evans          Mr Jenkins                     Ms Sharpe
                   Mr Costa                       Mr Kelly                       Mr Tingle
                   Mr Della Bosca                 Mr Macdonald                   Tellers,
                   Mr Donnelly                    Reverend Nile                  Mr Primrose
                   Ms Fazio                       Mr Obeid                       Mr West

                                                     Noes, 18

                   Mr Breen                       Mr Gay                         Mr Ryan
                   Mr Clarke                      Ms Hale                        Dr Wong
                   Mr Cohen                       Mr Lynn
                   Ms Cusack                      Reverend Dr Moyes              Tellers,
                   Mrs Forsythe                   Ms Parker                      Mr Colless
                   Mr Gallacher                   Mrs Pavey                      Mr Harwin
                   Miss Gardiner                  Ms Rhiannon

                                                       Pair

                                         Mr Tsang               Mr Pearce
18724                                                 LEGISLATIVE COUNCIL                             18 October 2005


        Question resolved in the affirmative.

        Motion agreed to.

        Bill read a second time.

                                                          Third Reading

         The Hon. IAN MACDONALD (Minister for Natural Resources, Minister for Primary Industries, and
Minister for Mineral Resources) [11.05 p.m.]: I move:

        That this bill be now read a third time.

        The House divided.

                                                              Ayes, 20

                     Ms Burnswoods                        Ms Griffin                  Ms Robertson
                     Mr Catanzariti                       Mr Hatzistergos             Mr Roozendaal
                     Dr Chesterfield-Evans                Mr Jenkins                  Ms Sharpe
                     Mr Costa                             Mr Kelly                    Mr Tingle
                     Mr Della Bosca                       Mr Macdonald                Tellers,
                     Mr Donnelly                          Reverend Nile               Mr Primrose
                     Ms Fazio                             Mr Obeid                    Mr West

                                                              Noes, 18

                     Mr Breen                             Mr Gay                      Mr Ryan
                     Mr Clarke                            Ms Hale                     Dr Wong
                     Mr Cohen                             Mr Lynn
                     Ms Cusack                            Reverend Dr Moyes           Tellers,
                     Mrs Forsythe                         Ms Parker                   Mr Colless
                     Mr Gallacher                         Mrs Pavey                   Mr Harwin
                     Miss Gardiner                        Ms Rhiannon

                                                               Pair

                                                   Mr Tsang               Mr Pearce

        Question resolved in the affirmative.

        Motion agreed to.

        Bill read a third time.

                                                        ADJOURNMENT

         The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency
Services, Minister for Lands, and Minister for Rural Affairs) [11.07 p.m.]: I move:

        That this House do now adjourn.

                   JAMES HARDIE AND ASBESTOS-RELATED DISEASES LIABILITY
         The Hon. IAN WEST [11.07 p.m.]: At a time when responsible companies are being upfront with
Australian shareholders and the wider community, I share concerns with employer groups, asbestos victims,
New South Wales taxpayers, unions and many others that James Hardie and its Chief Executive Officer [CEO],
Louis Gries, are being less than frank on past matters and issues of ongoing concern. James Hardie's silence on
some key matters is not a good sign and only raises more questions. We know James Hardie lied about knowing
the effects of asbestos on its staff for decades. We know the former CEO of James Hardie, Peter Macdonald,
resigned in October 2004 following the Jackson report, which found he misled the share market in 2001 when
he said the Medical Research and Compensation Foundation would have enough money to meet future asbestos
disease claims.
18 October 2005                             LEGISLATIVE COUNCIL                                             18725


         The Australian public and shareholders thought James Hardie had moved forward. The current
unsatisfactory situation beggars many questions: How far will James Hardie go to protect its financial interests
and operations? Is James Hardie going to leave Australia? If so, will New South Wales taxpayers be left with
James Hardie's bill? What actions will the company take in relation to past and current actions of its CEO? If
James Hardie cannot answer important questions like these, what else is James Hardie hiding? Of particular
concern, however, is James Hardie CEO Louis Gries' mysterious past and that of his colleagues. To this day, the
CEO of James Hardie maintains a strange silence on his past, relying on an alleged confidentiality agreement
with his former boss to not answer questions about his past professional conduct. I ask him to pick up the phone
and his pen and ask his former employer very nicely to waive the agreement in the public interest. At the
moment, one can only assume Mr Gries is benefiting from the confidentiality agreement and he has something
to hide.

         Heather Ridout of the Australian Industry Group has said in relation to Mr Gries, "I think the James
Hardie shareholders are entitled to know the full history of a new chief executive, since transparent reporting is
an important principle in business." Is there any truth to the suggestion that Mr Gries was sacked as plant
manager at United States Gypsum, in California, for falsifying internal work force safety statistics? What were
the circumstances of his departure? Was James Hardie's current Chief Financial Officer, Russell Chenu—the
executive with immediate responsibility for negotiating the compensation package—a financial officer at James
Hardie's Jakarta operations around the time when some 100 workers were arbitrarily sacked and a plant closed?
Was this plant reopened only months thereafter, and does the company whom Hardie sold its interests to still
produce asbestos products called Harflex?

         Has James Hardie refused to offer compensation to asbestos victims in Indonesia? What knowledge
does Louis Gries have of a wrongful dismissal and workplace bullying case lodged in the United States which
names him? In the public interest, he needs to address these question marks hanging over James Hardie's affairs
so we can move forward. Louis Gries is ultimately responsible for negotiations. He needs to reveal why he was
sacked, but that is not all he needs to do. I note that James Hardie removed the reference to Mr Gries' past career
with United States Gypsum in its annual reports after United States Gypsum went into chapter 11 bankruptcy
proceedings in 2001.

         What is James Hardie hiding? United States Gypsum, a former asbestos company, went into chapter 11
bankruptcy proceedings to protect itself from asbestos claims in America. There have been suggestions that
James Hardie, which is registered in The Netherlands, might one day move to the United States. Chapter 11
bankruptcy might be an option for the company in that case, letting it escape all its global asbestos liabilities.
James Hardie chairperson, Meredith Hellicar, has said that the board considered cutting and running from
Australia last year. The board considered a plan to leave just the Australian operations as a token bankroll to
fund expected claims. It would never have been enough—about a tenth of what is needed.

         Ms Hellicar made certain comments at the August annual general meeting. However, given the amount
of feet dragging on concluding negotiations to honour its commitment, the victims, New South Wales taxpayers
and shareholders need to know whether this is still being considered. If James Hardie proceeded with the exit-
Australia option, New South Wales taxpayers would be left holding the can to the tune of $1.5 billion at least. It
is worth bearing in mind that Ms Hellicar is a long-serving director who sat on all board meetings—in which
Hardie set up the fund with a fraction of the money required and then moved to The Netherlands.

           The Australian Securities and Investment Commission is interested in the fact that Ms Hellicar was on
the board committee which recommended cancelling $1.9 billion of partly paid shares—shares which Hardie
had promised the New South Wales Supreme Court would be available to meet some of the company's asbestos
liabilities when it moved to the Netherlands. The cost of future claims by James Hardie's asbestos victims is
$1.7 billion according to figures confirmed at James Hardie's 2005 annual general meeting. [Time expired.]

 TRIBUTE TO THE HONOURABLE JOHN ANDERSON, A FORMER FEDERAL LEADER OF THE
                   NATIONALS AND DEPUTY PRIME MINISTER

         The Hon. JENNIFER GARDINER [11.12 p.m.]: It was at the end of the previous sittings that the
Hon. John Anderson, Federal Leader of The Nationals, Deputy Prime Minister and Minister for Transport and
Regional Services, announced his resignation from those offices to return to cockies corner in the House of
Representatives as member for Gwydir. I have had the privilege of knowing John Anderson for years before he
finally made it into Parliament, years when he served on The Nationals Central Council and Central Executive,
and when he was pre-selected for Paterson, only to see it abolished before polling day. So I feel a need to pay
18726                                                 LEGISLATIVE COUNCIL                                                18 October 2005


tribute to John in this Parliament as so much that he has achieved applies to New South Wales. The reasons for
his decision to resign as Deputy Prime Minister included suffering a medical condition which, although not life-
threatening, was not going to go away if he continued to expose himself to the burdens of office that come the
way of a Deputy Prime Minister, the Minister for extremely demanding portfolios, on top of his representation
of the sprawling Gwydir electorate.

         John Anderson is still a young man. Yet, he can say that all he had really wanted to achieve as a
Minister and as Deputy Prime Minister in important policy areas such as land transport and air safety for
regional Australia, and water reform, were largely in place. John Anderson's many legacies for Australia, and
particularly its non-metropolitan constituency, include his vision for the nation's water policy, the National
Water Initiative and AusLink, both of which have been joined by the State Labor governments. Tim Fischer and
John Anderson, cumulatively, elevated the need for rail reform, and so it came to be that under John Anderson's
auspices the Australian Rail Track Corporation took out a 60-year lease over the New South Wales interstate rail
track, with early consequential improvements in productivity evident in, for example, the Hunter Valley.

         John served his party for 13 years as a frontbencher, firstly as parliamentary secretary to the then
shadow spokesman for industrial relations, John Howard, who was destined to be Prime Minister. John
Anderson is such a humble person, I doubt that he would have even dreamt that he would eventually become
Deputy Prime Minister in a Howard-Anderson Government. He served his party as deputy leader to Tim Fischer
for six years, before succeeding him as leader and holding that office for another six years. He served nine years
in Cabinet and six years as Deputy Prime Minister. Tax reform and industrial relations reform have also been
high on John's list of priorities, in keeping with the priorities of the party he has led so brilliantly. John believed
that part of his role was to aid rural and regional Australia's capacity to cope with the many changes that
confront all those areas outside the capital cities. He thought deeply about social issues and saw off the rise of
One Nation, believing, correctly, that he had contributed to delivering policies which aided Australia's social
cohesion.

          John can point to numerous projects to which he, as a leader of our party, contributed, whether it be the
roll-out of the CDMA mobile phone services, affordable broadband, the reform of the Australian Quarantine and
Inspection Service, forward-looking agriculture policies, introducing FarmBis and the Farm Management
Deposit Scheme, reforming the Civil Aviation Safety Authority, implementing the Regional Partnerships and
Regional Solutions programs, which have been embraced by communities and regional scientists alike, or
introducing Roads to Recovery and Networking the Nation. Early on he set up the National Rural Finance
Summit and the Regional Australia Summit, from which many of these initiatives flowed, including the
implementation of unprecedented rural health measures.

          John left the Ministry noting he was one of a group of his peers who are the equal twenty-second
longest-serving Cabinet Ministers since Federation. How different were John's farewell words as a Minister
compared with those of another leader who exited in recent times, Mark Latham? Whereas Latham urged young
people not to take up public office, John Anderson, who made a positive impression on the Parliament from day
one, reiterated his view of the Parliament, saying it is:

         … a great and important national forum … I think it is too easily forgotten that the great majority of those who seek public office
         work hard—often very hard—out of a real commitment to their fellow Australians. We might disagree on how best to take our
         aspirations forward, but we should always respect good motivation and a real desire to advance our fellow Australians' interests.

John has been a terrific advocate for our core institutions, including marriage and family life being the
cornerstone of our society and campaigning, successfully, for the retention of our system of government. He is
happy that as member for Gwydir for 16 years he has developed a very close bond with his constituents. The
Prime Minister, Mr Howard, was saddened by John's decision to call it a day as Deputy Prime Minister. He said
that John is:
         … a man for whom I have a profound personal regard and affection. I have said on a number of occasions that I have not met a
         person with greater integrity in public life. John is a person of steadfast character and principle. He feels deeply about issues that
         he regards as important to the life of this country. He cares about country people but he also understands that we are, above all,
         together as Australians, wherever we live.

The Prime Minister went on to say:
         He has presided over major improvements in basic services for the bush, for country Australians, and in so doing has addressed a
         sense of alienation and concern that so many country people have felt. His achievements in relation to AusLink—which gives to
         this country for the first time a national overarching, multimodal... transport system—reflects very great credit on him.

Today John looks like a man unburdened. He can take enormous satisfaction from his contributions. I salute
John Anderson.
18 October 2005                              LEGISLATIVE COUNCIL                                             18727


                ANTI-DISCRIMINATION (RELIGIOUS TOLERANCE) LEGISLATION

         Reverend the Hon. Dr GORDON MOYES [11.17 p.m.]: I wish to continue informing the House
about important correspondence that took place between the Hon. Peter Breen and members of Sydney's Islamic
community, and specifically a telephone conversation he had with Mr Sameer Habasyr, as reported to me by
Mr Habasyr. The correspondence sheds light on how the Hon. Peter Breen is attempting to drum up support for
his Anti-Discrimination (Religious Tolerance) Bill. The Hon. Peter Breen sent a standard letter to members of
Sydney's Islamic community on 29 September. I am prepared to table the copy of the letter sent to Mr Samir
Haz Yosofzai. In the letter, after acknowledging that he is not too familiar with the Koran, the Hon. Peter Breen
asks his Islamic readers for any ammunition they might have against Reverend the Hon. Fred Nile. As an
example, the Hon. Peter Breen requests, "If you can counter what Mr Nile had to say about the Koran, this
would be most helpful."

          On 10 October, the Hon. Peter Breen placed a follow-up call to Mr Sameer Habasyr asking for his help
in the stand against the Reverend the Hon. Fred Nile. Mr Breen was looking to verses from the Koran to prove
Reverend Nile wrong in his assertion made on 22 September in this place, specifically that the Koran says that
those who believe Jesus Christ is the Son of God are corrupt or perverted unbelievers. Mr Habasyr, who has an
extensive knowledge of the Koran in Arabic, told him the Reverend the Hon. Fred Nile's representations from
the Koran were indeed accurate. Mr Breen pushed the issue a couple of times, saying the verses did not help him
in beating Reverend Nile. Mr Habasyr told me that he told Mr Breen he was either expecting him to be a liar or
to give him a false translation of the Koran. Mr Habasyr then told Mr Breen that Reverend Nile had won the
debate—

         The PRESIDENT: Order! The member is speaking about a bill that is on the notice paper as an item
of business inside the order of precedence and is therefore anticipating debate on the bill. The member is out of
order.

                                             NUCLEAR ENERGY

          Mr IAN COHEN [11.20 p.m.]: There has been renewed debate of late about nuclear power.
Disturbingly it has been touted as the new green form of energy that will save us from climate change. I would
like to speak tonight about the fallacies of the proposition that the problems associated with nuclear energy are
somehow less valid today than they were 20 years ago, at the peak of the anti-nuclear movement. Nuclear
technology is still extremely dangerous. It relies on dwindling supplies of uranium and is so costly that massive
government subsidies are required. It is also vulnerable to terrorism, can feed weapons proliferation and
produces volumes of toxic waste with no satisfactory storage solution. Synroc has been developed, and there
have been suggestions to bury nuclear waste in stable areas, but some areas that have been stable in the past
have later had earthquakes and disturbances. We are dealing with a product that has a toxic waste with a life of
hundreds of thousands of years in some cases.

          We must not be blinded by claims that nuclear energy will solve the looming climate change problem.
I do not for a moment dispute that climate change is an extremely serious threat to our planet, but it is incredibly
misguided and short-sighted to propose that nuclear power is the solution. If we look at the entire nuclear cycle,
we see the greenhouse credentials do not look so virtuous. The nuclear process employs energy-intensive
industries dependent on vast quantities of fossil fuels. Uranium mining, enrichment and transport, the
construction and decommissioning of facilities, and the processing, transport and storage of radioactive waste all
consume large amounts of energy, such as oil and coal.
         A recent study factored in the declining ratio of uranium to mined ore in the rapidly declining uranium
sources and found that emissions increase as more mining, refining and transport is needed to compensate for
poorer-quality ore, which showed that the greenhouse emissions needed for nuclear power are therefore
increased. Nuclear plants themselves release unknown quantities of greenhouse gases more powerful than
carbon dioxide, such as chloro and hydrofluorocarbons and sulphur hexafluoride. If we were to replace all fossil
fuel-generated electricity with nuclear power there would be enough economically viable uranium to fuel the
reactors for three to four years. Moreover, the percentage of global greenhouse emissions from world electricity
production accounts for about 16 per cent of all polluting sources. Therefore, this is the maximum percentage of
greenhouse pollution that nuclear power could claim to reduce if all electricity generation was nuclear, and
discounting the fact that greenhouse gases are still produced at most stages of the nuclear cycle.
        When this is countered with the immense threats posed by nuclear power, it shows the ludicrous nature
of the proposition that nuclear power is a solution to climate change. We are approaching the twentieth
18728                                       LEGISLATIVE COUNCIL                                  18 October 2005


anniversary of Chernobyl, a catastrophe that was 400 times more potent than the Hiroshima nuclear bomb.
There are cracks in the concrete sarcophagus that covers Chernobyl and seepage has been detected in the
groundwater. Most of the reactor's fuel is still intact and active inside. It is a stark reminder of the dangers of
this technology. This is not the only accident to have occurred. In April this year enough nuclear waste leaked
from the United Kingdom Sellafield plant in Cumbria to half fill an Olympic swimming pool. In June there was
a radioactive leak into the Baltic Sea from the Forsmark nuclear power plant in Sweden. Nuclear mishaps are
quite commonplace. Just this week a maintenance worker at Lucas Heights was reportedly exposed to an
unacceptably high dose of radiation. Was this the result of a leak?

         We need to relegate nuclear power to the grave and support renewable energy technologies such as
windmills and photovoltaic panels, which do not rely on fossil fuel use and do not pose the incredibly dangerous
threat that nuclear technology does. We need to support energy-efficient measures, which can reduce
greenhouse emissions by 30 per cent with no associated dangers. The renewed debate into nuclear energy has
simply been a ploy to set nuclear power against coal power. This is not the debate we should be having.
Renewable energy and demand management are the ways forward. This is where the debate should be. I believe
we have been somewhat derailed recently by the renewed debate on nuclear power. The great misfortune of this
debate is that we have so much potential in Australia to pursue sustainable power generation strategies that
could set Australia at the forefront, particularly solar, wind, wave and hydrogen power generation. We could
have a massive impact particularly with smaller-scale power systems. It could be a fantastic export industry to
South East Asia, which does not need nuclear power but certainly needs smaller-scale photovoltaic, wind, water
and other alternative power systems.

                                  MOSMAN COUNCIL CARERS GROUP

         The Hon. HENRY TSANG (Parliamentary Secretary) [11.25 p.m.]: I attended Mosman Council last
month to hand over a cheque to the Mosman Council Carers Group. The New South Wales Government was
very pleased to support the Mosman Council Carers Group and appreciates the great work it does to give carers
a welcome and much-deserved break from their caring role. This funding is part of the wider Department of
Health carers project, which is encouraging statewide initiatives to support carers by providing $5 million in
funding across the State each year.

          As we know, carers are the unsung heroes in our community who give of themselves selflessly and
without complaint to care for their loved ones. Carers are family members, partners or friends who provide
ongoing support and care for a person who has a longer-term disability or illness, is frail aged or has a mental
illness. However, like other members of the community, carers need a break. This is why Mosman Council's
Carers Group plays such an important role in the local community by providing activities and outings to carers.
Funding of $15,000 was provided to the group, which supports carers living in the Mosman area and allows the
group to use the funds to help carers in their difficult and selfless service to their loved ones.

         The New South Wales Government appreciates the role that Mosman Council plays in providing
weekly sessions and outings for carers to give them a welcome and much-deserved break from their caring role.
I presented the cheque from the Minister for Health, the Hon. John Hatzistergos MLC, to the new Mayor of
Mosman, Ms Denise Wilton, and the Deputy Mayor, Simon Menzies, on behalf of the carers group. Four other
organisations in the Northern Sydney region received a one-off grants to support carers. I was very pleased to
meet a number of carers and appreciated the opportunity to congratulate them on the difficult but wonderful job
they do. I had the chance to speak to them and to hear about some of the difficulties facing families in caring for
their loved ones.

         One carer, a nurse by profession, told me of the difficulties involved with looking after her son, who
suffered an injury in a skateboard accident, leaving him paralysed. Following his recovery he now requires
constant care in a home. His parents are burdened financially by committing to a place in a nursing home—
hardly an ideal place for a young man—while he still in a New South Wales hospital. This is a heavy burden to
bear and I am sure members will agree that we must do better to help such families. We must help from all
levels of government. I congratulate them on the magnificent job they do and pledge my support for the
provision of additional services from the New South Wales Government, and to lobbying the Federal
Government to increase its funding to carers groups, especially for young people. Carers Week runs from 17 to
22 October.

                                      AUSTRALIAN AERIAL PATROL
        The Hon. MICHAEL GALLACHER (Leader of the Opposition) [11.28 p.m.]: With summer rapidly
approaching and rescue personnel including Water Police, Westpac Rescue, surf lifesaving clubs and the like
focusing on preparing for yet another season making our beaches and waterways safe for the public to enjoy, I
18 October 2005                             LEGISLATIVE COUNCIL                                             18729


took the opportunity recently to visit the Australian Aerial Patrol, which operates from the Albion Park Airport
in the State's Illawarra region. There I met representatives including management and volunteers, together with
the member for the South Coast, Shelley Hancock, and was fortunate to be given a tour of the facility and
aircraft. Members may be surprised to learn that the Australian Aerial Patrol has been providing much-needed
emergency and surveillance protection dating back to the 1950s, with local emphasis on shark detection, beach
surveillance and waterway safety.

          The service has also often been utilised to search in bushland areas throughout the Illawarra and other
regions of the State, and it also plays a significant early detection role during the bushfire danger period. The
installation of a forward-looking infra-red camera in one of the three fixed-wing aircraft within the fleet has
further added to the capability of the Australian Aerial Patrol [AAP] by enabling the surveillance role to be
broadened to night-time surveillance. This can be utilised to monitor fishing compliance issues and can also add
much-needed resources in emergency sea searches for vessels or persons in distress. Given the potential of the
AAP, one can imagine my shock when I learned that despite many promises by local Labor Government
members to secure a permanent level of funding to maintain this ongoing service, no such funding certainty has
been forthcoming, and now the future of the service is unclear.

         I was particularly disappointed to hear the Minister for the Illawarra, who claimed, in response to a plea
by the Member for South Coast, Shelley Hancock, for the Government to find a solution for this funding crisis,
that the AAP would merely be paid for services when required. He then went on to attack the management of
the organisation as top heavy, and used parliamentary privilege to suggest that money is being siphoned away
from much-needed services by senior personnel lining their own pockets through high salaries. These comments
alone spelt out to me the Government's true agenda: starve the AAP of funds, limit the times it is called out to
provide its services, and slowly apply a stranglehold until the Government gets control or removes the
organisation.

         Despite the fact that we have just commenced our beach season, coupled with the fact that sharks are
returning closer to shore as a consequence of numerous factors, and community angst and confidence in ocean
swimming has increased in recent years following numerous reports around our nation of shark attacks. Yet the
State Government continues to ignore community pleas for essential services to be provided. In recent years we
have seen massive residential growth throughout the Illawarra and South Coast. Likewise, on weekends
particularly, but not limited to summer, more and more Sydneysiders seek to escape the heat and traffic of the
city by travelling south instead of making the traditional trek north to the Central Coast and Port Stephens
regions.

         There is no argument from Government that demand for these services does exist, but now the
suggestion is that the New South Wales Police air wing will play a role in surveillance and patrol services in this
region. Surely we have enough work for police, including the air wing, without adding to their tasks. We all
know what is going to happen: intentions will be good at the start but as demand for their services increases, the
opportunity for police fixed-wing aircraft to conduct routine patrols along our coast line will gradually be
wound back. I join with the honourable member for South Coast in calling on the State Government to stop
dragging its feet on this issue and provide the AAP with the necessary funding to guarantee a level of safety and
confidence for a community that has supported members of the Labor Party for generations.

         Before concluding, I must note the indignation by the Minister for the Illawarra at the assertion by the
honourable member for South Coast in the Parliament recently that he and his colleagues, the honourable
members representing the electorates of Kiama, Illawarra, Wollongong and Heathcote, did not support the AAP.
It was very easy to determine their level of commitment and sincerity when a cursory glance of Hansard
revealed that, despite the Australian Aerial Patrol being in operation since 1957 and servicing the electorates of
those members, they had not uttered one word about it. Once again, on yet another important local issue, the
silence of Labor members throughout the Illawarra is deafening.

         Motion agreed to.

            The House adjourned at 11.32 p.m. until Wednesday 19 October 2005 at 11.00 a.m.
                                           _______________

								
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