In the House – 20 to 22 October 2020 – Part 1: Government business days

Government business days

On Tuesday and Thursday, the House passed a number of bills, spanning health, criminal procedure, work health and safety, road transport and liquor licensing. The House also debated a motion to find the Leader of the Government in contempt for failure to provide documents previously ordered in relation to the Stronger Communities grants program. The Leader of the Government was suspended from the service of the House on Tuesday 20 October until the end of the sitting day.

Tuesday 20 October 2020

Ruling of the President

Last week, Mr Graham (Labor) tried to initiate debate on a motion to adjudge the Leader of the Government guilty of contempt for failing to table documents relating to the Stronger Communities Fund. The Leader of the House (Mr Tudehope, Liberal) took a point of order, arguing that the ‘trigger’ for the procedural motion had not been established, because the documents sought did not exist. For further details see last week’s edition. The President reserved his ruling.

In his ruling given on Tuesday 20 October, the President did not uphold the point of order, suggesting that his role as President is to strengthen and preserve the powers of the House and where possible, to permit rather than prevent debate. Mr Graham’s procedural motion to initiate debate was agreed to on division (22 votes to 16), with all members except for the Government and the Christian Democratic Party voting in support. 

Motion for failure to produce documents

Mr Graham then moved the substantive motion to adjudge the Leader of the Government (Mr Harwin) guilty of a contempt and to suspend him for noncompliance with an order of the House. He argued that Mr Harwin had failed to provide the requested documents relating to the Stronger Community Fund, and failed to explain to the House how formal approval was given for grants allocated under the Fund by the Premier, Deputy Premier and Minister for Local Government.

The Leader of the House (Mr Tudehope) raised a point of order, arguing that, given the Government had confirmed that the documents in question did not exist, the motion should be ruled out of order.

Debate on the point of order ensued, with members making various arguments as to whether in finding the Leader in contempt and suspending him, the House would be asserting a protective power – to enforce compliance with an order – or acting punitively, which would be beyond its powers. Mr Searle (Labor), Mr Shoebridge (The Greens), Mr Latham (One Nation), Mr Graham (Labor) and Ms Sharpe (Labor) spoke to the point of order.

Following these contributions, the President indicated his particular concern with paragraph 4 of the substantive motion, which proposed suspending the Leader of the Government from the House until the conclusion of Wednesday’s sitting. The President then invited the Leader of the Opposition and Leader of the House to meet with him during the dinner break to discuss a way forward.

When the House returned from dinner, the President, pointing to his earlier observations as to the seriousness of a motion suspending a member from the House, and his role in ensuring that the use of the House’s power was not open to criticism as being unreasonable, instructed the Clerk to amend paragraph 4 by omitting the terms ordering the suspension of the Leader of the Government.

Mr Searle then moved a dissent to the President’s ruling. The President, at the request of Mr Tudehope, left the Chair until the ringing of a long bell, to facilitate further discussions between members.

On the President’s return, Mr Searle withdrew his dissent motion and the President revoked his ruling with regards to Mr Graham’s motion. On the resumption of debate, Mr Searle moved an amendment to Mr Graham’s motion, reducing the time the Leader of the Government would be suspended from the House. The substantive motion as amended was agreed on division (23 votes to 15) with all members except the Government voting for the motion.

The President then announced that Mr Harwin was suspended from the services of the House until the end of the sitting day and directed the Usher of the Black Rod to remove him from the Chamber. This was the first time the power to suspend a member for contempt had been used since the suspension of the Hon Michael Egan in both 1996 and 1998.

Health Legislation (Miscellaneous Amendments) Bill 2020

The bill proposes to amend a number of health Acts and Regulations following the Furness Review of Medical Council processes in relation to Dr Emil Gayed. The bill also seeks to implement recommendations of the report of the joint parliamentary inquiry into cosmetic health service complaints in New South Wales, including expanding the powers of the Health Care Complaints Commission to better protect patients.

In supporting the bill on behalf of the Opposition, Mr Secord said that he was pleased with the proposal to tighten the cosmetic health sector. He also flagged that the Opposition would move amendments to the bill in committee of the whole, some of which would require the House to agree to special ‘instructions’ to permit consideration of amendments potentially outside the subject matter or ‘leave’ of the bill. (You can find more information on instructions at p 583 here.) Ms Faehrmann also indicated The Greens’ support for the bill.

The House having agreed to instructions to committee of the whole, Mr Borsak (SFF) and Mr Buttigieg (Opposition) moved several amendments to a number of other Acts. Mr Borsak’s amendments related to changes that would come into effect with the commencement of the Gas Legislation Amendment (Medical Gas Systems) Act 2020 in November 2020.(see House in Review for 10 August). The Medical Gas Systems Act ensures 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.

Mr Borsak’s amendments sought to exclude veterinary hospitals from the type of medical facility covered by this Medical Gas Systems Act, on the basis that their original inclusion was inappropriate. These amendments were agreed to on the voices. Mr Buttigieg also introduced amendments relating to the Gas Legislation Amendment (Medical Gas Systems) Act 2020, as well as to the Home Building Act 1989. Mr Buttigieg stated that because anaesthetists, doctors and nurses administer medical gases, a ‘superficial reading’ of the Medical Gas Systems Act could be read as requiring them to be qualified. His amendments therefore sought to clarify that in their normal duties, these types of medical professionals not be caught by the qualification requirements. The amendments were agreed to on the voices and the bill sent back to the Legislative Assembly for consideration of the amendments. The Legislative Assembly later advised that it agreed to the amendments made.

Stronger Communities Legislation Amendment (Miscellaneous) Bill 2020

The bill seeks to amend the Criminal Procedure Act 1986, to provide for greater admissibility of tendency and coincidence evidence in child sexual offence proceedings. Specifically, the bill introduces a presumption in favour of joint trials where a defendant is accused of multiple offences and the prosecution is seeking to rely on tendency and coincidence evidence. It also seeks to include a provision clarifying directions to juries on this evidence, confirming that a jury is not to be directed that tendency or coincidence evidence needs to be proved beyond reasonable doubt. The bill also introduces changes relating to the offences of recording and distributing or threatening to distribute intimate images, extending the availability of special arrangements for victims of these offences to give evidence, in order to minimise the stress they may experience. It also seeks to amend the Crimes Act 1900 to allow a court to make an order against a person convicted of these offences.

A number of changes proposed by the bill implement recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, along with the findings of a review of case management in higher courts conducted by the Chief Judge of the District Court.

Mr Searle said that the Opposition would not oppose the bill and called on the Government to implement the recommendations of a NSW Law Reform Commission report entitled ‘Criminal Appeals’, tabled in Parliament on 18 June 2014. The Greens also stated they would not oppose the bill, with Mr Shoebridge commending the bill’s changes to the Criminal Procedure Act 1986 and Crimes Act 1900 regarding the offences of recording and distributing or threatening to distribute intimate images. Reverend Nile (Christian Democratic Party) also supported the bill.

The bill was read a third time and returned to the Legislative Assembly.

Thursday 22 October 2020

Non-compliance with an order for papers—the Stronger Communities Fund

At the start of the day on Thursday, in accordance with the resolution of the House made on Tuesday, the President called on the Leader of the Government (Mr Harwin) to either produce the signed written briefs approving successful applications under the Stronger Communities grants program or to confirm that the documents do not exist, and provide a clear explanation about the manner in which formal approval by the Premier and her Ministers was executed and recorded, to the satisfaction of the House.

In response to paragraph 6(a) of the motion, the Leader of the Government said that the final decision to approve the allocation of funds under the Stronger Communities grant program was made by the CEO of the Office of Local Government, acting on advice from the Ministers’ offices, and in accordance with a valid financial delegation, which authorised the expenditure of the appropriated funds. Mr Harwin stated ‘no formal written brief to the Minister seeking approval of the same expenditure is required to legally expend the money’.

Arguing that the House had now exhausted its ability to call for papers in relation to this matter, Mr Harwin stated that any further order for papers in relation to the same subject matter ‘would fail the test of reasonable necessity, which limits the power of the House call for State papers’. He concluded by saying that any further order of this nature would be considered ‘solely punitive and, therefore, beyond the power of the House’.

Later that day, Mr Searle sought the leave of the House to give a notice of motion that, if moved, would ask the House to find the explanation given to be unsatisfactory, suspend the Leader of the Government and require further explanation. The motion remains on the Notice Paper for Tuesday 10 November.

Personal explanation of Mr Moselmane

On Thursday, the Hon Shaoquett Moselmane returned to the House following a voluntary leave of absence. Later that morning, Mr Moselmane made a personal explanation which canvassed the execution of search warrants by the Australian Federal Police in June 2020 and acknowledged the support he had received from members and parliamentary staff during his absence.

Work Health and Safety Amendment (Information Exchange) Bill 2020

The bill seeks to amend the Work Health and Safety Act 2011 to create a system for information sharing between NSW Health, SafeWork NSW and the NSW Resources Regulator to ensure that these regulators are informed of all diagnoses of silicosis in this State. According to Mr Farlow, Parliamentary Secretary, the bill seeks to reduce the prevalence of occupational diseases such as silicosis in New South Wales. The question on the second reading was agreed and the House resolved into committee of the whole.

In committee of the whole, amendments were moved by the Government, Opposition and The Greens. In moving the Government amendments, which sought to strengthen the process by which cases of silicosis and other occupational dust diseases may be tracked, responded to and prevented in New South Wales, Mr Farlow acknowledged the assistance of members from ‘across the political divide’ to refine the bill from its draft form. The Opposition and the Greens moved amendments to the Government’s amendment, to require SafeWork NSW to keep a dust diseases register and to report on the number of cases of occupational dust diseases to the Minister each year, respectively. The Greens also moved an amendment to provide a case-finding study to be carried out to investigate respirable crystalline silica exposure in the manufactured stone industry. All amendments were agreed to on the voices, before the bill was read a third time and returned to the Legislative Assembly, which later advised it agreed to the amendments made.

National Parks and Wildlife Legislation Amendment (Reservations) Bill 2020

The bill seeks to amend the National Parks and Wildlife Act 1974 to adjust the boundaries of various national parks, conservation areas, historic sites, regional parks and nature reserves in New South Wales. According to Mr Franklin, on behalf of the Leader of the Government, this will facilitate initiatives such as the widening of roads and highways, the expansion of the Port Macquarie Koala Hospital and the transfer of culturally significant land at the Davidson Whaling Station to the Aboriginal community. 

Debate was adjourned for five calendar days.

Drug Supply Prohibition Order Pilot Scheme Bill 2020

The bill seeks to establish a pilot scheme for drug supply prohibition orders in four areas of New South Wales. These prohibition orders would allow a police officer to stop, detain and search a person and their home, car or other vehicle without a warrant if the person is over the age of 18 years and had been convicted of a serious drug offence. 

Mr Farlow, Parliamentary Secretary, said that the bill will give police new powers to search convicted drug dealers and their homes without a warrant and would be rolled out in Bankstown Police Area Command, Coffs‑Clarence Police District, Hunter Valley Police District and Orana Mid‑Western Police District over two years.

Debate was adjourned for five calendar days.

Retirement Villages Amendment Bill 2020

The bill proposes changes to the Retirement Villages Act 1999 in order to implement further components of a reform package developed by the Government following a 2017 review of the retirement villages sector by Ms Kathryn Greiner. Mrs Maclaren-Jones, Parliamentary Secretary, said that the changes will protect the financial future of people in retirement villages, whilst at the same time balancing the needs of retirement village operators.

Debate was adjourned for five calendar days.

Road Transport Legislation Amendment Bill 2020

This bills seeks to implement recommendations of the recent statutory review of the Road Transport Act 2013. A number of changes proposed by the bill relate to the powers of Transport for NSW (TfNSW), including allowing TfNSW to commence proceedings for certain offences, increasing the limitation period to allow greater time to investigate and build a case and also to allow TfNSW to sanction the registration of a vehicle decorated with offensive imagery or slogans, where the material is not removed. The bill also seeks to provide police with the power to immediately withdraw the driver privileges of an overseas driver when detected speeding by more than 30 km/h, and to increase the fine for offences committed in company vehicles.

Both the Opposition and The Greens indicated their broad support for the intent of the bill, including the bill’s proposal regarding vehicles displaying offensive or discriminatory imagery. Mr Graham (Opposition) said that while the Opposition supported the measure, he cautioned that it should not be dealt with lightly, given the difficulty in legislating around what is ‘offensive’ and ‘discriminatory’. Ms Boyd (The Greens) pointed to Greens attempts in 2017 to have the issue of offensive slogans addressed by a private members’ bill that was opposed by former members of the Government. Both the Opposition and The Greens welcomed changes to increase the fine for offences committed in company vehicles, however Mr Graham expressed concern that this would still allow a loophole to be exploited, as it continued to allow corporations to pay a fine to avoid an individual driver losing demerit points when driving a company vehicle.

In committee of the whole, Mr Shoebridge (The Greens) sought to amend the bill to insert a defence to the offence of driving with the presence of THC in an oral fluid, blood or urine sample, if the person could satisfy the court that the drug had been consumed for medicinal purposes. The amendment was negatived on division, 33 noes to 28. Ms Boyd moved an amendment, agreed on the voices, to require corporations to nominate an officer to undertake an investigation into who was assigned the vehicle at the time of the incident. Mr Graham also moved an amendment to require Revenue NSW to publish the number of penalties and offences in relation to corporation-nominated driving offences each month via the Government website. The amendment was agreed to on the voices before the bill, as amended, was read a third time and returned to the Legislative Assembly for concurrence. The Legislative Assembly later advised it agreed to the amendments made.

Liquor Amendment (24-hour Economy) Bill 2020

In the evening, debate resumed on the Liquor Amendment (24-hour Economy) Bill 2020. The bill proposes amendments to the Liquor Act 2007 and Liquor Regulation 2018, to introduce a new regulatory liquor licencing scheme for venues (see House in Review for 15 October)

In committee, Ms Cusack (Government), Mr Graham (Labor) and Ms Faehrmann (The Greens) debated the merits or impacts of specific provisions contained in the bill, but were broadly in agreement on the proposed framework. In total, 54 amendments from the Government, Opposition and The Greens were moved, with 47 being agreed to. These included provisions relating to licensing risk assessments, live music and performance venues, small bars, entertainment precincts, the use of roads by venues, liquor delivery and special measures in response to the COVID-19 pandemic. The seven amendments moved by The Greens which sought to include the Kings Cross precinct in the new scheme, were negatived on division (5:28) with the Animal Justice Party and the Shooters Farmers and Fishers Party joining The Greens to vote for the amendments, and all other parties opposed. After two hours of considerably swift deliberation on amendments, the committee resolved to report progress and consider the remaining amendments at a later date.

The bill remains on the Notice Paper for further consideration in committee.

Stay tuned for our next blog on Wednesday, which will discuss business debated on Private Members’ Day.