Tuesday saw the Legislative Council disallow a regulation which would have implemented a freeze on public sector wages during the next financial year. The House also passed two bills, including one that aims to ensure that construction in New South Wales is compliant with building standards and another enacting reforms in response to recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.

More social distancing measures in the Chamber

Further to social distancing measures introduced in the Council during previous sitting weeks, the President opened the Upper Public Gallery to members so that all members could participate in the sittings in person.

In addition, the House agreed to a motion by the Leader of the Government, Minister Tudehope, to vary the process for divisions, whereby members stand in their place to be counted. The system draws on practice adopted in the Victorian Legislative Council.

Division with members standing in their place. Members are present in the Chamber as well as the Upper and Lower Public Galleries

Non-compliance with orders for papers

At the start of the sitting day Minister Tudehope was called on to explain to the House why the Government had not produced documents which had been ordered by the House relating to the final business case for the proposed Western Harbour Tunnel and Beaches Link, and the strategic business case for the proposed Western Harbour Tunnel and Beaches Link.

In addressing the House, Minister Tudehope noted that the Government respects the authority of the Legislative Council to make orders to compel the production of documents and acknowledges its obligation to comply with these orders. He stated that documents have not been produced because, in the Government’s view, the House does not have the power to compel the production of cabinet documents.

He cited a Premier’s Memorandum from 2006 which states:

The unauthorised and/or premature disclosure of Cabinet documents, including draft Cabinet documents (such as draft Cabinet minutes), undermines collective ministerial responsibility. It also undermines the convention of Cabinet confidentiality. It is accordingly essential that the confidentiality of Cabinet documents, including draft Cabinet documents, is maintained to enable full and frank discussions to be had prior to Cabinet making its decision.

Minister Tudehope also indicated that Mr Graham (Labor Party), the member who moved the motion to seek information, had been negotiating with him on the matter in good faith. He advised that in the interests of transparency, Infrastructure NSW published a summary of the final business case for the Western Harbour Tunnel and Beaches Link program on 29 May 2020. The Minister concluded with a statement that clarity was needed on the appropriate use of the power to order papers. He also hinted that the Government might be open to considering the electronic lodgement of returns.

Later in the afternoon Mr Graham gave a notice of motion (which he has yet to move) which indicated that if the documents are not produced by 2 pm on 16 June 2020 it would be open to the House to take all necessary action, including censuring the Leader of the Government or adjudging him guilty of contempt and suspending him for whatever period necessary to ensure the order is complied with.

Ruling by President—Notice of Motion to Disallow Salary Determination

The President ruled a notice of motion given by Mr Shoebridge (Greens) on 12 May 2020 out of order. The notice sought to disallow the Statutory and Other Offices Remuneration Tribunal salary determination for a wage increase for the Commissioner of Police, which was made according to Section 24P of the Statutory and Other Offices Remuneration Act 1975.

The President ruled that while the House could disallow determinations under certain sections of the Statutory and Other Offices Remuneration Act 1975, there is nothing in the Act suggesting that determinations in respect of public servants or other senior executives under part 3B (which includes section 24P) are disallowable. The President directed the Clerk to remove the notice from the Notice Paper.

Disallowance—Industrial Relations (Public Sector Conditions of Employment) Amendment (Temporary Wages Policy) Regulation 2020

A motion was brought on by Mr Searle (Labor) to disallow a regulation which would implement a freeze on public sector wages during the next financial year. The regulation is a temporary measure which states that public sector employees are not to be awarded increases in remuneration or other conditions of employment that would increase employee-related costs.

The regulation was made by the Government on 29 May 2020 in response to the economic impact caused by COVID-19.

In seeking to disallow the regulation Mr Searle argued that the policy to restrict pay increases would be unfair to the 400,000 workers it would impact and would cost New South Wales jobs instead of creating jobs. He stated that granting an increase in wages would provide public sector workers a greater spending capacity which would flow on to patronise local shops and local businesses, who in turn would have more money available to employ staff. In addition, Mr Searle noted that a 2.5 per cent wage increase for the public sector may not even meet inflation over the next 12 months, which is expected to be up to 2.75 per cent. Members of the Greens, Shooters, Fishers and Farmers, One Nation and Animal Justice also spoke in support of the motion.

The government opposed the motion, with Minister Tudehope stating that every possible dollar must be dedicated to job creation. The Minister argued that COVID-19 is an economic crisis, not just a health crisis and the government must prioritise creating jobs for people who have lost their employment, rather than giving a pay rise to workers who already have the security of a job and a steady pay cheque.

The motion was agreed to on division (22 votes to 15).

Design and Building Practitioners Bill 2019

The bill introduces a number of obligations on design and building practitioners to ensure that all construction in New South Wales is well documented and compliant with the Building Code of Australia. It also establishes a duty of care by construction workers to prevent economic loss caused by building defects.

Debate on the bill resumed from 19 November 2019. During that debate, members of the Opposition and the Greens indicated their general support for the bill, but noted that it does not go far enough to address the community’s lack of confidence in the building industry following high profile incidents such as defects in Mascot and Opal Towers.

The bill’s progress had been delayed due to COVID-19 and a disagreement on proposed amendments. However, this provided time for the Council’s Public Accountability Committee to complete its inquiry into the regulation of building standards, building quality and building disputes.

Following the second reading being agreed to on Tuesday, the House considered 60 proposed amendments. As there had been a great deal of discussion outside of the chamber since November, debate in the House moved quickly and all 60 amendments were agreed to. This included seven Government amendments to the bill as well as:

  • 31 Labor amendments to:
    • ensure engineers and specialist practitioners are registered
    • ensure that the regulations can prescribe that engineers or practitioners must maintain their assessment or recognition with a professional body to maintain that registration
    • ensure that the bodies assessing engineers for registration adhere to a strict set of competencies to underpin a renewed strong consumer confidence
    • impose additional obligations on building practitioners to ensure that changes to designs are endorsed and declared in consideration of compliance with an entire development.
  • 11 Greens amendments to:
    • essentially ‘repeal’ the operation in New South Wales of the 2014 High Court of Australia decision in Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36. The Court ruled that a builder’s duty of care stops with the first purchaser and does not flow on after that, other than in extreme circumstances. The decision caused problems for homeowners who purchased a property and then found a latent defect and could not seek recourse from the builder.
    • ensure a Statutory Review of the Act is undertaken by the Legislative Council’s Public Accountability Committee as soon as possible after March 2022.
  • 11 Shooters, Fishers and Farmers amendments to:
    • regulate essential features such as fire safety, mechanical, plumbing and electrical services in buildings to ensure compliance with the Building Code of Australia.

This bill provides an example of the Legislative Council operating as a House of Review where members from all parties come together to give careful consideration to an issue, including through work by committees, and improve government legislation for the benefit of the people of the New South Wales.

The bill was then returned to the Assembly to seek that House’s concurrence with the amendments. The Assembly agreed to all 60 amendments the next day.

Evidence Amendment (Tendency and Coincidence) Bill 2020

The bill amends the provisions within the Evidence Act 1995 that set out when tendency evidence and coincidence evidence may be admissible in civil and criminal proceedings and seeks to facilitate greater admissibility of these types of evidence with a particular focus on child sexual offences.

An example of tendency evidence is evidence that an accused person has a tendency to be sexually attracted to children and to act on that attraction, while an example of coincidence evidence is multiple complainants alleging that an accused person abused them when they were children.

In her second reading speech the Parliamentary Secretary (Mrs Ward) noted that the bill represents the Government’s response to certain recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. These recommendations were developed to ensure that more tendency and coincidence evidence is admissible in child sexual abuse prosecutions. Mrs Ward further noted that the rights of accused persons would continue to be maintained through the retention of judicial discretion at multiple stages of the process in the admission of tendency and coincidence evidence.

The Opposition supported the bill’s objective of making the law of evidence work more fairly but observed that undertaking substantial legal reform in this area was complex. The Greens strongly supported the bill arguing that the law as currently written had led to too many acquittals because of the exclusion of critical evidence.

In the committee of the whole the Government successfully moved two amendments to change the bill’s commencement date and provide for a Ministerial review of the operation of the amendments to the Evidence Act 1995 made by the bill. The bill was read a third time and returned to the Assembly with amendments. The amendments were agreed to by the Assembly the next day.

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