In the House – Thursday 6 August 2020

On the final day of the sitting week the Legislative Council passed bills to reform the Defamation Act and the licensing of mechanical services and medical gas. The House also censured the Leader of the Government for non-compliance with an order for papers.

Censure of the Leader of the Government – non-compliance with order for papers

The final day of the sitting week began with Mr Graham (Labor) moving to censure the Leader of the Government, Mr Harwin, for non-compliance with orders for the production of business cases for the proposed Western Harbour Tunnel and Beaches Link.

The Leader of the Government stood in his place on 4 August and gave the House an undertaking to provide the documents by close of business the next day on a ‘voluntary’ basis, as the Government did not concede that the House has the power to order production of the requested documents. While the documents were provided, Mr Graham argued that Government had still not complied with the order, as the documents were heavily redacted.

In addition to censuring the Leader of the Government, Mr Graham’s motion also called for the provision of the final business case to the House by 24 August 2020 with critical information unredacted. The motion states that if the information is not provided, it would be open to the House to immediately adjudge the Leader of the Government guilty of contempt and to suspend him from the service of the Legislative Council.

In opposing the motion, the Leader of the House, Mr Tudehope, noted that the Government had provided a significant amount of information to members about the project. He indicated that the information not provided would, if disclosed, compromise the financial interests of taxpayers as the Government is currently in the procurement stage of the project.

The motion was agreed to on division (22 votes to 16) and the Leader of the Government was censured for non-compliance.

Gas Legislation Amendment (Medical Gas Systems) Bill 2020

The bill seeks to ensure that mechanical services and medical gas works are appropriately licensed in order to prevent a repeat of the tragic events that took place at the Bankstown‑Lidcombe Hospital in 2016 when two newborn babies were administered a poisonous gas instead of oxygen. The bill amends the Home Building Act 1989 to establish two new categories of licensed specialist work, namely ‘medical gasfitting’ and ‘medical gas technician’. It also extends the compliance and enforcement powers of the Gas and Electricity (Consumer Safety) Act 2017 to medical gas work.

The bill addresses the same issue as the private members’ bill introduced by Mr Buttigieg (Labor) in June 2020, which passed the Legislative Council, but was defeated in the Assembly.

The Parliamentary Secretary (Mrs Maclaren-Jones) indicated that the Government’s bill would introduce a robust and effective licensing and regulatory system for persons who carry out medical gas work. She noted that the Government had been critical of the lack of consultation in relation to the private members’ bill, whereas the Government bill had been the subject of significant consultation with stakeholders.

Labor, the Greens and the Christian Democratic Party were of the view that the bill did not go far enough in implementing a robust regulatory system and foreshadowed that amendments would need to be moved in the committee stage to address these concerns. Labor in particular expressed concern that the bill seeks to adopt a different approach to the uniform laws in Queensland and Victoria and argued that it was important that New South Wales enact laws consistent with those states. Labor also criticised the Government for not responding to the incidents at the Bankstown-Lidcombe Hospital sooner.

Mr Buttigieg noted his intention to move amendments to address specific issues with the bill, including the two-tiered system for technicians, the lack of specification regarding the exemption of certain installations (eg in aged-care facilities), and the unintended consequences of the investigative and reporting provisions caused by amending the Gas and Electricity (Consumer Safety) Act.

During committee of the whole, the House agreed to 29 Labor amendments, including one amendment that was further amended by the Government. The bill was amended to:

• require that only certificate III qualified and licensed workers will be able to undertake medical gas installations,
• create a new category of specialist work, known as ‘mechanical services and medical gas’.
• require that all work must fully comply with the relevant Australian Standards
• include aged care facilities and veterinary surgeries
• tighten the definition ‘medical gas installation’.

The amended bill was agreed to and returned to the Assembly, which then agreed to the amendments later that evening.

Defamation Amendment Bill 2020

The bill seeks to amend the Defamation Act 2005 and the Limitation Act 1969 to implement nationally agreed changes to the law of defamation. The Defamation Act 2005 implemented nationally consistent defamation provisions which were agreed to by the former Standing Committee of Attorneys-General (SCAG) in 2004. In 2018, the Council of Attorneys-General (CAG) undertook a review of the national defamation laws. The review identified that a number of provisions would benefit from amendment or modernisation – these were agreed to in July 2020. The bill implements these changes with a particular focus on changes to defamation law in response to the growth of social media.

The Parliamentary Secretary, Mrs Ward noted two of the key reforms being introduced by the bill:

• increasing the serious harm threshold (to reduce the number of insubstantial or trivial claims—for example, those arising out of social media posts or other forms of rapid digital communication—that get to full trial)
• promoting speedy and non‑litigious methods of resolving disputes.

The Opposition, Greens and Christian Democratic Party indicated their support for the bill. The Greens and Opposition both noted that the bill would not solve all issues in defamation law but nonetheless welcomed it as a useful development.  The second and third readings of the bill were agreed to and the bill was returned to the Assembly without amendment.