It’s been a very busy week in the Council. Members debated motions to overturn the disallowance of a regulation and to adjudge the Leader of the Government guilty of contempt. This was on top of considering two new sessional orders and passing four bills. Find out more in today’s blog.

Tuesday 10 November 2020

Matter of Privilege – Contempt for Failure to table documents

In the previous sitting week, there was a debate to suspend the Leader of the Government (Mr Harwin) for noncompliance with an order of the House. Later that week, the Leader gave an explanation for the non-compliance and related decisions regarding expenditure for grants that the Opposition deemed unsatisfactory. Mr Searle then gave notice of a motion to further suspend Mr Harwin from the service of the House and require him to again explain the decision making process behind the allocation of funds for grants.

During the recess, legal advice from Mr Bret Walker SC was circulated which cautioned against the House using the sanction of  suspension against the Minister for failure to provide a ‘clear explanation’ for not providing the documents. Subsequently, when Mr Searle’s motion was called on on Tuesday, he moved an amended version to omit reference to the suspension of Mr Harwin – however, the contempt reference remained. The amended motion noted evidence given in recent committee hearings which revealed that records relating to the decision-making processes behind the grants had been destroyed; that the technology exists to recover those deleted records; and adjudged the Leader guilty of contempt for the Government’s continued claims that no documents exist in view of sworn evidence from an adviser to the Premier that the documents had been shredded and deleted.

Mr Shoebridge (The Greens) then moved an amendment to request that the Premier recover the records referred to in the committee hearing and provide those records to the House by Tuesday 17 November 2020, along with an explanation of the circumstances and timing of their original destruction.

The Government opposed the motion. The Leader of the House (Mr Tudehope) referred to the legal advice from Mr Bret Walker SC. While acknowledging that Mr Searle’s amended motion had removed reference to the suspension of the Mr Harwin, Mr Tudehope said that the House should reject the amended motion would find the Leader guilty of contempt when he had not had an opportunity to comply with the new order. Nevertheless, Mr Tudehope indicated that the Government would endeavour to recover and produce the two documents in question.

Notwithstanding the Government’s opposition, the Greens amendment was agreed to and the amended motion subsequently agreed to on division, 22 votes to 16. The deadline for the production of the recovered documents is 12 noon on Monday 17 November 2020, with the Leader of the Government also now required to update the House on Tuesday 18 November 2020.

Sessional Order – Varying the Scope of an Order for Papers

The sessional order, moved by Mr Shoebridge (The Greens), formalises a process for agencies to negotiate with members to vary the scope of an order for papers where the timeframe for production is unduly onerous or the terms of the order are too broad. In moving the motion, Mr Shoebridge reiterated the autonomy of the House to exercise its power to order the production of documents, but acknowledged that there was a need to provide scope for variation to be made in exceptional circumstances.

The Government supported the motion, noting that, while it could have gone further, it was a constructive step towards a more streamlined process to counter the dramatic increase in the number of orders agreed to in the last two years. The motion was also supported by the Opposition and the Christian Democratic Party member and ultimately agreed to on the voices.

Rescission of disallowance – Floodplain Harvesting Exemption Regulation

In the evening, the House debated a motion moved by the Leader of the House (Mr Tudehope) to rescind a resolution disallowing the Water Management (General) Amendment (Exemptions for Floodplain Harvesting) Regulation 2020. The Regulation was disallowed by a resolution of the House on 22 September 2020 (see House in Review), following an inquiry of the Regulation Committee into its impact and implementation.

Speaking for the Government, Mr Tudehope referred to two pieces of legal advice from the Crown Solicitors Office, which stated that the practice of floodplain harvesting is now subject to a great deal of uncertainty following the disallowance of the regulation.  Mr Tudehope said that this uncertainty, coupled with impending rainfall events meant that the rescission of the disallowance was now justified. Mr Veitch (Labor), who chaired the inquiry into the Regulation, led for the Opposition and opposed the motion, questioning the Government’s claim that the disallowance of the Regulation had created legal ambiguity, given that the Natural Resource Access Regulator (NRAR) had stated that it did not have any problem enforcing the law in the absence of the Regulation.

Members of The Greens, Shooters Fishers and Farmers Party, One Nation and Mr Field also indicated their concerns with the rescission motion. The motion was negatived on division (16 votes to 23), with only the Government and Reverend Nile supporting it. 

Retirement Villages Amendment Bill 2020

Debate resumed (from October) on the bill, which 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.  

The Opposition did not oppose the bill. Mr Mookhey (Labor) contributed to debate, describing the Greiner review and resulting recommendations. Ms Boyd spoke for the Greens, indicating overall support for the bill and noting the work already completed as part of the Greiner review. In committee of the whole, Ms Boyd moved Greens amendments seeking to strengthen protections for current and former residents of retirement villages. The Government and Opposition supported the amendments, which were agreed to on the voices. The amended bill was read a third time and forwarded to the Legislative Assembly for consideration.

Thursday 12 November 2020

Sessional order – Prayer

In the morning, the House debated a motion moved by Ms Boyd (Greens) to introduce a sessional order to amend Standing Order 28 to cease the reading of the Prayer at the start of each sitting day. Instead, members would stand in silence and pray or reflect on their responsibilities to the people of New South Wales. In speaking to the motion, Ms Boyd said the new arrangements proposed would allow the Parliament to better reflect the diversity of the population it represented.

Members from all sides contributed to the debate, referring to both the history of the reading of the Prayer in the Chamber and the possibility for further consideration of the matter by the Procedure Committee. The motion was negatived on the voices.

Referral of Premier to ICAC

Prior to Question Time, the Leader of the Opposition (Mr Searle) moved a motion to refer a number of matters relating to the Premier to the ICAC for investigation and report. These included the role of the Premier in the approval of the Stronger Communities Fund Tied Grants and the Premier’s responsibilities under the NSW Ministerial Code of Conduct. Subsection (2) of the motion called for a message to the sent to the Legislative Assembly, requesting it pass a similar resolution. Mr Latham (One Nation) moved an amendment to the motion, adding further matters for referral.  Mr Shoebridge (The Greens), Ms Hurst (Animal Justice Party) and Mr Borsak (Shooters Fishers and Farmers) each indicated that their parties would support the motion. Mr Graham, on behalf of the Opposition, moved a further amendment to the original motion which called on the House to note a number of other matters.

Mr Latham’s amendment was agreed to on the voices, with the House agreeing to Mr Graham’s amendment on division, 22 ayes to 15 noes. The amended motion was also agreed to on division, 22 votes to 15. A message was sent to the Legislative Assembly requesting that it pass a similar resolution to enable the reference to proceed to the ICAC. While the Legislative Assembly subsequently disagreed to the motion, the Council motion nevertheless requires the Clerk to communicate the resolution made by the Council to ICAC.

National Parks and Wildlife Legislation Amendment (Reservations) Bill 2020

Debate resumed on the bill, introduced in the previous sitting week by Mr Franklin. 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. The Opposition, The Greens and Mr Field indicated their support for the bill, noting that the changes it made were relatively minor and largely procedural. The bill was read a third time and sent to the Legislative Assembly for concurrence.

Stronger Communities Legislation Amendment (Domestic Violence) Bill 2020

The bill amends the Crimes (Domestic and Personal Violence) Act 2007 and the Criminal Procedure Act 1986 to make procedural improvements to domestic violence criminal justice proceedings.

Speaking for the Government, the Parliamentary Secretary (Mrs Ward) acknowledged that courts can be a daunting place for victims of domestic and family violence, and that the legal process can be overwhelming. She stated that domestic violence is a complex crime like no other because of the intimate relationships between perpetrators and victims.

The Opposition supported the bill, noting that it makes good progress in supporting victims of domestic violence. The Opposition called on the Government to make future reforms, such as increased specialisation and ongoing domestic violence training for those who work in the criminal justice system. The Greens supported the bill, welcoming the reforms but also arguing that more needs to be done in terms of domestic violence prevention and support for victims. The Animal Justice Party likewise supported the bill, noting that it represents a significant step in recognising and addressing the link between domestic violence and animal abuse.

In the committee of the whole, the Government amended the bill to prohibit a complainant in domestic violence proceedings from being directly examined in chief, cross-examined or re-examined by an accused person who is not represented by an Australian legal practitioner. Ms Hurst (Animal Justice Party) also successfully moved an amendment to explicitly state that an objective of the Crimes (Domestic and Personal Violence) Act 2007 is to recognise the intersection between animal abuse and domestic violence. Ms Boyd (The Greens) moved a number of amendments, five of which were negatived on the voices. One amendment, to require courts to direct parts of domestic violence offence proceedings to be held in camera, was agreed to on the voices.

The bill as amended was agreed to, and following the third reading,  was returned to the Assembly for concurrence.

Liquor Amendment (24-hour Economy) Bill 2020

As reported in the House in Review of 22 October considerable deliberation on the bill had occurred during the previous sitting week, with 47 amendments previously agreed to. On Thursday a further 21 amendments were agreed to. These related to liquor delivery, community consultation, small bars, live music and performance venues, private functions at hotels, planning matters, definitional changes and provisions relating to the COVID-19 pandemic and commencement.

Consideration in committee occurred swiftly, with the Parliamentary Secretary (Ms Cusack), Mr Graham (Labor) and Ms Faehrmann (The Greens) noting the considerable work undertaken by members and Ministers across the Parliament to reach agreement on proposed amendments, and thanking all those who had been involved. This included amendments to the Environmental Planning and Assessment Act 1979, to allow local councils to modify conditions for development consent for licensed venues at the land-use, suburb or local government area level. The amendments also create standards that cannot be used by consent authorities to refuse consent to development in relation to a licensed premises. The significance of the bill for industry and the State was also acknowledged.

The bill as amended was agreed to, and following the third reading,  was returned to the Assembly for their concurrence with the Council amendments.

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