In the House – Wednesday 17 March 2021

Take a look back at the key things to happen in the House on private members’ day on Wednesday, 17 March…

It was another jam-packed private members’ day, with a number of interesting procedural matters up for discussion. There was debate on the rules governing the election of President of the Legislative Council, as well as debate on three bills, plus the House considered a variety of motions. Don’t just take our word for it… read on to learn more about what happened.

SESSIONAL ORDER TO AMEND STANDING ORDER 12 – RULES FOR THE ELECTION OF THE PRESIDENT

 Early on Wednesday morning, Mr Searle moved a motion for a sessional order to amend Standing Order 12 (SO 12), which sets out the rules for election of the President of the Legislative Council.

Under the current rule, where two or more members are nominated, a member responds by saying “I submit myself to the will of the House”. Under Mr Searle’s proposal, the member would not be obliged to respond to their nomination until after the outcome of the election. Mr Searle acknowledged that it was vital for the nominee to indicate their willingness to accept the high office proposed, but stated this should occur after the House itself has expressed its will and made its choice clear.

In support of his proposal, Mr Searle argued that there should not be any obligation on members to indicate their willingness to accept the role of President – the House should be at liberty to choose a President in whom members have confidence to best represent the will and outlook of the House. He asserted that this should be the case regardless of the inclination of the member so proposed, or of party politics.

The Government strongly opposed the motion, with the Leader of the Government and the Leader of the House arguing that a member should not be appointed to such high office without first having indicated that they accept the nomination. The Leaders also observed that SO 12 was an established rule which had been in operation since 1991, with a history dating back even further. The Leader of the House moved an amendment to instead make clear that a member nominated must indicate whether they accept the nomination.

Mr Latham (Pauline Hanson’s One Nation Party) also opposed the change, arguing that it was fundamentally undemocratic. However, Mr Shoebridge (The Greens) and Mr Borsak (Shooters, Fishers and Farmers Party) supported the change, arguing that it would provide the House the greatest autonomy to choose its preferred candidate regardless of the will of the governing party.

The amendment of the Leader of the House, Mr Tudehope, was negatived (ayes: 19, noes: 22), and the sessional order was agreed to on division (ayes: 19, noes: 22).

SOUTH32 DENDROBIUM EXTENSION PROJECT APPROVAL BILL 2021

Introduced by Mr Latham (Pauline Hanson’s One Nation), the South32 Dendrobium Extension Project Approval Bill 2021 would allow for extension of the South32 Dendrobium Mine in the Illawarra region. It would overturn a February decision of the NSW Independent Planning Commission to reject this extension, and provide for development conditions and environmental safeguards to be imposed by the Minister for Planning and Public Spaces by regulation.

Mr Latham said the coking coal extension would give NSW steelmaking a viable future. He argued that steelmaking in the Illawarra relies on the essential coking coal resource, and that the bill would restore a commonsense planning proposition that jobs must come first.

Debate was adjourned for five calendar days.

ICAC REFERRAL

In the afternoon, the Leader of the Opposition (Mr Searle) moved a motion to refer a number of matters relating to the Premier to the Independent Commission Against Corruption (ICAC) for investigation and report. These included a meeting the Premier (as then-Treasurer) attended with former member for Wagga Wagga Daryl Maguire, regarding the upgrade of the Cobb Highway. The motion also referred a number of matters relating to developer Country Garden’s purchase of land earmarked for the M9 Outer Sydney Orbital. The motion called for a message to the sent to the Legislative Assembly, requesting it pass a similar resolution and also for the Clerk of the Legislative Council to communicate the resolution to ICAC in the instance that the Assembly did not pass a resolution.

The Government opposed the motion, with Mr Harwin arguing that it relied on a series of unsustainable conspiracy theories. Mr Latham (Pauline Hanson’s One Nation) spoke in favour of the motion, asserting that an investigation was required to clarify the issues referred to above.

The motion was agreed to on division (ayes: 24, noes: 17). Later in the day, the Legislative Council received a message from the Legislative Assembly advising that it disagreed with the resolution and proposal to refer the matters to ICAC.

REAL ESTATE COUNCIL SERVICES BILL 2019

Debate resumed on the Real Estate Council Services Bill 2019, which was introduced by Mr Banasiak (Shooters, Fishers and Farmers Party) in late 2019. The bill seeks to establish a Real Estate Services Council to advise the Minister for Better Regulation and Innovation on consumer protection, real estate agent education and public information programs. It would also create the Office of the Property Services Commissioner, to focus on regulatory controls of the property services industry.

Mr Farlow, Parliamentary Secretary, said the Government opposed the bill, noting the proposed Council would be led by the Real Estate Institute of New South Wales – allowing partial self-regulation of the industry by its own members. He explained that the Government’s other major reason for opposing the bill was that the property services industry already has a clear and effective structure for oversight and regulation through Fair Trading.

Mr Mookhey said the Opposition did not oppose the bill, but foreshadowed that it would be moving amendments in committee to expand the proposed Council to include a representative of the Tenants’ Union of NSW and the Strata Community Association (NSW). Ms Boyd (The Greens) also did not oppose the bill, observing that it was clear that the real estate industry is being under-regulated and that even the industry itself is crying out for better oversight. However, Ms Boyd questioned the need for three real estate personnel to be represented on the Council Board, and also foreshadowed The Greens’ support for the Opposition amendments. The second reading was agreed to on division, 23/16, with all members except the Government and Reverend Nile (Christian Democrats) voting in support of the bill.

In committee of the whole, Mr Mookhey successfully moved amendments to rename the proposed Council to the Property Services Council; expand consumer representation on the Council; and extend the provisions of the bill to include strata and community schemes matters, with the Government and Reverend Nile voting against the amendments and all other members voting in support. The third reading of the bill was then agreed to on the voices.

As one of the amendments made altered the ‘short title’ of the bill, the bill was returned to the Legislative Assembly with a new title – the Property Services Bill 2019 – for concurrence. To read more on amendments to the title of a bill, check out this chapter in NSW Legislative Council Practice.

SEXUAL ASSAULT AND HARASSMENT

This motion, moved by Ms Boyd, acknowledged the March 4 Justice protests that took place earlier in the week as part of a movement to address the issues of sexual harassment and sexual assault. In addition to recognising the difficulty survivors of sexual assault experience in speaking out, the motion – following amendments from Ms Moriarty and Mr Searle (Labor) – called on the Government and the Presiding Officers to take proactive measures to ensure Parliament is a safe workplace for women. These measures included establishing a confidential reporting mechanism; surveying staff; reviewing workplace policies; providing sexual consent training for all staff; and an independent investigative mechanism for reporting of such issues.

Members from all sides spoke in the debate, with many heartfelt and personal contributions. Ms Boyd (The Greens) referred to the “unique pressures” that exist for women in politics to keep silent about sexual harassment and assault, and said that NSW Parliament should take concrete action in response to a desire for change in this area. Minister Taylor spoke of the actions that were currently being undertaken in this area, including the Attorney-General’s review of the laws around sexual consent, as well as the inquiries by the Privilege Committees of both Houses on the proposal for a Parliamentary Compliance Officer. In moving her amendment, Ms Moriarty said that the best way to make Parliament safe was to have an independent means of investigating allegations of harassment and assault.

Other crossbench members such as Reverend Nile (Christian Democrats), Ms Faehrmann (The Greens) and Ms Hurst (Animal Justice) gave their support for the motion. Mr Latham (Pauline Hanson’s One Nation) supported aspects of the motion but said that members need to take it upon themselves to make Parliament safe, rather than delegating this role to other people. The motion as amended was agreed to on the voices.

NON-COMMENCEMENT OF THE MODERN SLAVERY ACT 2018

Following from yesterday, Mr Searle moved a motion deeming the Leader of the Government’s explanation of the reasons for the non-commencement of the Modern Slavery Act 2018 unsatisfactory. The motion also required the President to seek legal advice as to the powers of the Legislative Council to compel the commencement of this Act and protect the privileges and powers of the House.

In moving the motion, Mr Searle said that the House had taken many steps to indicate its dissatisfaction with the non-commencement of the Act, including censuring the Leader of the Government (Mr Harwin) on Thursday 18 February and seeking yesterday’s explanation. Mr Searle argued the explanation was unsatisfactory on the basis that Mr Harwin described discussions with the Commonwealth Government but gave no indication as to when the Act may commence.

Mr Harwin disputed the characterisation of his response as unsatisfactory, arguing that it was reasonable to describe the progress of discussions on the matter, up to the point where it would jeopardise Cabinet confidentiality. Mr Harwin also said that it was reasonably well understood that there was “no imaginable legal precedent” that would allow the Council to compel commencement of an Act.

In response, Mr Searle said that updates on the progress of discussions were one thing, but the Government’s lack of disclosure around the commencement date was still unsatisfactory. He also argued that members of the House had a right to be fully informed of powers in this area, given no legal precedent on this issue exists. The motion was agreed to on division, 21 ayes to 15 noes, with the Government and Reverend Nile opposing it.

GOVERNMENT SECTOR FINANCE AMENDMENT (GOVERNMENT GRANTS) BILL 2020

Debate resumed on the Government Sector Finance Amendment (Government Grants) Bill 2020 introduced by Mr Borsak, which seeks to amend the Government Sector Finance Act 2018 to require an entity responsible for deciding a grant application to inform the ‘relevant member of Parliament’ of their decision, in order to improve transparency and ensure elected representatives are kept informed of grant decisions affecting their electorates.

Mr Farlow, Parliamentary Secretary, indicated that the Government would oppose the bill as the changes proposed were impractical, given the current number of grant applications processed by government entities. He also referred to existing policies and guidelines in place to ensure transparency around government grants, such as the Good Practice Guide to Grant Administration, which he said was being reviewed to ensure it reflected best practice in grants administration.

The Opposition and the Greens gave their support for the bill. Speaking in her capacity as Deputy Chair of the Public Accountability Committee (PAC), Mrs Houssos (Labor) questioned the efficacy of the existing practices referred to by the Parliamentary Secretary, in light of evidence received as part of the PAC inquiry into the integrity, efficacy and value for money of the Government grants program. These observations were echoed by Chair of the PAC Mr Shoebridge (Greens), who described the current guidelines around government grants as totally inadequate.

The second reading of the bill was agreed to on division, 21 ayes to 15 noes. The third reading of the bill was set down as an order of the day for a future sitting, as proceedings were interrupted by the midnight adjournment.

ORDERS FOR PAPERS

• Strike Force Wyndarra (Mr Shoebridge, Greens) – due 7 April 2021
• Monaro Farming Systems (Mr Veitch, Labor) – due 7 April 2021
• Ministerial Directive on Tree Clearance Zones (Mr Graham, Labor) – due 7 April 2021
• SINSW 2019/20 Works in Progress Summary – Further Order (Mrs Houssos, Labor) – due 24 March 2021
• Before and After School Care and Vacation Care (Mrs Houssos, Labor) – due 14 April 2021
• Water Management (General) Amendment (Emergency Works Exemption) Regulation 2021 (Ms Faehrmann, Greens) – due 31 March 2021