A note for our readers: Owing to the COVID-safe arrangements in place, our Hansard team have been working from home and transcripts are taking a couple of extra days to finalise. We rely on the transcripts to ensure that we accurately report on the activities in the House for you. For this reason, the blog schedule will vary a little through October, and sitting activities will be reported on the following week. We thank you for your patience, and hope you continue to enjoy our concise summaries of activities in the House.

Two sittings in one day

While the calendars may have read 12 October, in the Legislative Council it was still Tuesday 14 September when the day started at 1pm. As noted in our last sitting day blog, the sitting of 14 September was suspended after the President left the chair until the ringing of a long bell. (Find out why the President left the Chair here.) This meant that when the House returned on 12 October, it met first to ‘adjourn’ the September sitting, before returning an hour later to commence the October sittings.

Formal proceedings began a little differently to usual, as the Reverend Fred Nile was invited to deliver the Lord’s Prayer – a role usually performed by the President. This was done to acknowledge the 40th anniversary of Reverend Nile’s election to the Legislative Council, with Reverend Nile having been elected in 1981 as one of the first three crossbenchers elected to the Council.

Arrangements for a COVID-safe sitting

With the sitting underway, a quick succession of measures were implemented to ensure the sittings took place in a COVID-safe manner. First, a motion was moved by the Leader of the House (Mr Tudehope, Liberal) to set out the conduct of business for the House for the day, including changes such as:

  • Allowing members to give a notice of motion by emailing the Procedure Office
  • Removing take note of answers and debate on committee reports
  • Allowing certain items to be recorded in the Minutes, without first having to be reported in the House.

The House then adopted a temporary order to authorise members to participate in the sittings remotely via Webex. Under the temporary order members were able to participate in debate, table documents, move amendments to bills and ask questions of ministers. A small number of restrictions were placed on some aspects of proceedings for those participating remotely, such as taking points of order and voting.

The House also adopted a temporary order to facilitate ‘walk-through divisions’, to minimise the time that large groups of members spend in the chamber together. While the current division procedure requires all members to congregate in the chamber and then stand in their place to vote, under this new procedure the President appoints the tellers and members then walk past the tellers for the Ayes or the Noes to cast their vote before exiting the chamber. This order was agreed to on division (30 ayes, 4 noes), with Pauline Hanson’s One Nation and the Shooters, Fishers and Farmers opposed, arguing that the chamber should return to the more relaxed COVID-safe arrangements in place in June in view of both the high rates of vaccination amongst members and the protections the Parliament had put in place such as rapid antigen testing and temperature checking.

Finally, the House endorsed the ‘COVID-safe plan’ previously tabled by the President, which, along with familiar COVID-safe practices such as social distancing, QR code check-ins and regular hand sanitising, included additional measures such as compulsory mask wearing, rapid antigen testing and enhanced ventilation measures. The plan provided for a basic ‘hybrid’ model for the sittings of the House, which would see members participate in certain aspects of the sitting via video. This plan was endorsed by the House on division (33 ayes, 4 noes), with Pauline Hanson’s One Nation and the Shooters, Fishers and Farmers opposed.

  • Members of the Legislative Council participating in the 12 October sitting day
  • Screens at the back of the chamber allowed remote participation by some members
  • Social distancing measures saw members spread out across the chamber - including into the gallery spaces
  • A social-distancing reminder on the floor of the chamber
  • Reverend Nile is pictured on the sitting day, which he opened by delivering prayers in honour of his 40 years of service in the Legislative Council

Condolence motion – The Honourable Max Willis, former President of the Legislative Council

The President informed the House of the death of the Honourable Max Willis, President of the Legislative Council between 1991 and 1998. As the Council’s 17th President, Mr Willis will be remembered for the significant contribution he made to the effectiveness of the Legislative Council as a House of Review – particularly as a party in the proceedings in Egan v Willis. This now-famous High Court case confirmed the rights of the Council to order the production of papers from the executive government.

Members and officers of the House stood as a mark of respect, following which the Leader of the Government (Mr Harwin, Liberal) moved a formal condolence motion, foreshadowing that the motion would be debated when the former President’s family could attend the chamber.

Read more about Mr Willis in this statement from the President from August.

Bicentenary of the NSW Legislative Council

The Bicentenary of the establishment and first sitting of the Legislative Council will be celebrated in 2024, marking 200 years of parliamentary democracy in NSW.

For each month that the Council sits between now and then, the President will make an official ‘Bicentenary statement’ in the House. In Tuesday’s statement, President Mason-Cox outlined the planned program of events to commemorate the Bicentenary, and referred to the establishment of the first Council as Australia’s “Magna Carta moment”. Watch the statement in full below, and look out for a new website and e-newsletter for bicentenary events and historical resources, coming soon.

Explanation from THE Leader of the Government for non-compliance with standing order 233

In 2019 the House amended standing order 233 to require that Government responses to committee reports address each recommendation made by a committee. If this detailed response is not provided, the President will call on the Leader of the Government to explain the reasons for non-compliance.

This new rule was activated for the first time on Tuesday in relation to the Government’s responses to two committee reports by the Public Accountability Committee, regarding the budget process for independent oversight bodies and the NSW Parliament, and the NSW Government grant programs. In relation to the first report, the Government had indicated that notwithstanding that a response was due on 5 August, it would not provide the response until the fourth quarter of 2021 to provide the Government time to respond to an Auditor-General’s report on the same topic. In relation to the grants report, the Government indicated that it would wait until the committee had delivered its final report on the matter before responding.

On the President indicating that the response to the second report into the Government’s grants program had failed the test set out under the sessional order, the President called on Mr Harwin to stand in his place to explain his reasons for non-compliance. Mr Harwin indicated that in order to deal with all of the inquiry recommendations of the committee in a holistic fashion, it was appropriate for all responses to be provided when the final report is completed.

The President reminded the House that if a response is not received within one month of this statement, the Minister will again be called on to explain why – a procedure that continues until a full response to each recommendation is provided.

Orders for papers by a committee

In accordance with standing order 208, the President informed the House that the Public Accountability Committee had ordered the production of certain documents as part of its inquiry into the COVID-19 pandemic. In response, the Government advised that it was arguable that the Legislative Council’s power to call for documents did not extend to committees, on the basis that it was not reasonably necessary for the exercise of the Council’s constitutional functions. (Read about the Council’s power to call for documents here). However, in this instance, the Government advised that some of the documents ordered were provided on a voluntary basis. On Wednesday, a further order was passed by the House on this issue.

Matter of Public Importance – Schools And Education

Later in the day, members debated a matter of public importance moved by Mr Latham (Pauline Hanson’s One Nation) regarding the NSW Government’s school targets policy, strategic improvement plans and education budgeting.

In opening the debate, Mr Latham questioned the use of school strategic improvement plans to drive academic excellence and school improvement in NSW. He said such plans were inconsistent, offered no way to compare school performances, and set no baselines for improvement targets. Members from the Government, Opposition and crossbench contributed to the debate. The Minister for Education (Ms Mitchell, Nationals) argued that tangible improvements were still being achieved in lifting educational standards.

As a matter of public importance is a procedural mechanism to provide for debate without the requirement for a vote of the House, on debate concluding the motion lapsed.

You can find the full discussion in the Hansard record here.

ROAD TRANSPORT LEGISLATION AMENDMENT BILL

With a focus on vehicles used by primary producers (such as farmers), the Road Transport Legislation Amendment Bill 2021 seeks to amend the Road Transport Act 2013 and the Motor Vehicles Taxation Act 1988 to fix vehicle registration charges and taxation amounts. It also makes a number of minor and consequential amendments to 13 other Acts, regulations and rules.

The bill was passed in the Legislative Assembly in June, and introduced in the Council by Parliamentary Secretary Mr Franklin, on behalf of Minister Mitchell. Mr Franklin said the bill would create a more flexible legislative framework for vehicle registration concessions and requirements, and allow the government to more readily respond to the needs of primary producers in times of drought, flood and other natural disasters.

Mr Graham (Labor) said the Opposition would not oppose the bill. Ms Boyd (The Greens) said her party supported the bill and foreshadowed an amendment in committee of the whole, while Mr Farraway (Nationals) also spoke in support of the bill.

The House resolved into committee of the whole to consider amendments from the Government and The Greens. The Government amendments sought to have the bill commence on assent, rather than proclamation. You can learn more about commencement by proclamation vs assent in an older blog here. The Greens’ amendment sought to ensure that a provision in the bill that would ensure that, where a provision from one Act is transferred to another Act or a statutory rule, it retains its original meaning, was not extended to also include reference to other instruments.

All four amendments were agreed to on the voices. The bill as amended was agreed to, read a third time, and returned to the Legislative Assembly. On Wednesday 14 October, the Assembly advised the Council that it had agreed to the amendments made. The bill was then forwarded to the Governor for assent.

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