In the House – Thursday 14 October 2021

It was back to Government business on Thursday 14 October, with the House debating five Government bills, including a bill to amend the Modern Slavery Act 2018. The House also agreed to a new sessional order to allow it to continue to sit in the absence of a Minister or Parliamentary Secretary in certain circumstances – something previously precluded by Standing Order 34. Read on for more!

SESSIONAL ORDER – VARIATION TO STANDING ORDER 34

As keen readers may remember, on Tuesday 14 September the President left the Chair after Mr Khan (Nationals) drew attention to the absence of a Minister or Parliamentary Secretary in the Chamber – their presence being a necessary requirement for the House to meet under Standing Order 34.

On Thursday, Mr Searle (Labor) moved a motion to introduce a sessional order to allow the House to continue to sit in circumstances where a Minister or Parliamentary Secretary is not present. To do this, the sessional order would allow any member to move a motion without notice proposing that the sitting continue. In such circumstances, Government business could not be considered without a Minister present. The sessional order would also allow the question that the House adjourn (usually proposed by a Minister) to be proposed by the President. Mr Searle described the proposed sessional order as a moderate measure which balanced the rights and privileges of government, as well as the rights and privileges of a majority of this House to call the House together to deal with business – albeit not government business – as and when it sees the need to do so.

Mr Shoebridge (Greens) indicated that the Greens would support the motion, but moved an amendment to ensure that any vote on a motion to propose the House continue sitting not require a Minister or Parliamentary Secretary in order to occur. This amendment was later agreed to on the voices. Mr Tudehope (Liberal) said that the Government would oppose the motion, on the basis that it sought to overturn 100 years of convention requiring the presence of a Minister during a sitting. He also said that it was more appropriate that the proposed sessional order be referred to the Procedure Committee for consideration, rather than being agreed to that day. Mr Latham (Pauline Hanson’s One Nation) supported the motion, noting that the aforementioned convention referred to by Minister Tudehope (that preceded the formalisation of the standing order in 2004), was only ever a tradition and was never intended as a veto power on the House’s ability to sit. Reverend Nile also indicated that he would support the motion, expressing his disappointment at the outcome of the 14 September sittings and the effect of Standing Order 34.

The motion as amended by Mr Shoebridge was agreed to on division, 21 ayes to 12 noes, with the Government opposing it.

PUBLIC INTEREST DISCLOSURES BILL 2021

Introduced by the Leader of the Government in the Legislative Council (Mr Harwin), the Public Interest Disclosures Bill 2021 establishes a new Act to provide protections for people making public interest disclosures of serious wrongdoing in the NSW public sector. According to Minister Harwin, the bill represents the first substantial rewrite of the existing disclosures Act since its commencement in 1994. He noted the changes had their origin in recommendations from an earlier review of the Act by the Joint Parliamentary Committee on the Ombudsman, the Law Enforcement Conduct Division and the Crime Commission, which reported in 2017 that the disclosure process could be simplified; that technicalities can cause disclosers to miss out on protections; and that protections from detrimental action should be enhanced. Mr Harwin said the bill was also informed by a report by the Joint Parliamentary Committee on the ICAC, also published in 2017, which highlighted the limitations of existing protections for people making voluntary disclosures to the ICAC.

Among other things, the bill would provide a new framework for reporting wrongdoing in the public sector, implementing a ‘no wrong door approach’, allowing disclosures to made in a uniform way – rather than the current approach, where there are separate pathways for reporting certain disclosures to certain agencies, and where reporting in the wrong way or to the wrong place can result in a loss of protection. It also proposes new protections and remedies, including allowing disclosure-makers to claim damages from employers for any detrimental actions taken against them, and from agencies in cases where an agency has failed to minimise the risk of detrimental action against the disclosure-maker.

With the bill’s second-reading speech delivered, debate was adjourned.

MODERN SLAVERY AMENDMENT BILL 2021

The Modern Slavery Amendment Bill 2021 makes miscellaneous amendments to the Modern Slavery Act 2018 to combat modern slavery and provide assistance and support for victims. Key measures include changes to commence the Act on a new date of 1 January 2022; to enhance protections for the Anti-slavery Commissioner; to reduce regulatory burden on businesses in NSW, particularly where NSW statute had intersected with Commonwealth statutory requirements; to address legal concerns raised with the original provisions of the Act; and to ensure that victims of modern slavery can receive recognition payments. Minister Harwin explained that the bill implemented many of the recommendations made by the Standing Committee on Social Issues’ 2020 report on the Modern Slavery Act 2018 and associated matters.

Noting concerns raised by stakeholders, Mr Harwin affirmed that the bill will preserve and enhance many of the important features of the original Act, including the establishment of Australia’s first substantive Anti-slavery Commissioner; risk-based audits of the procurement of government agencies and associated measures, including a public register identifying those agencies that fail to comply with requirements; new offences to deal with the production and distribution of child abuse material and to prohibit slavery, servitude, child forced labour, and child forced marriage; access to financial support, counselling and recognition payments for victims of modern slavery; and the establishment of a joint parliamentary committee on modern slavery.

Following the minister’s second reading speech, debate was adjourned for five calendar days.

BETTER REGULATION LEGISLATION AMENDMENT (MISCELLANEOUS) BILL 2021

Introduced by Parliamentary Secretary Scott Farlow on behalf of Minister Tudehope, the Better Regulation Legislation Amendment (Miscellaneous) Bill 2021 intends to make minor and largely administrative changes to a number of Acts administered by the Minister for Better Regulation and Innovation.

The amendments to 15 Acts – ranging from the Motor Dealers and Repairers Act 2013 to the Funeral Funds Act 1979 – would further specify the powers of relevant secretaries, clarify legislative intent and streamline regulatory requirements. Mr Farlow said they would also strengthen consumer protections, address emerging issues, correct drafting errors and more.

Ms Houssos (Labor) said the Opposition would not oppose the bill, but foreshadowed an amendment to be moved in committee of the whole. Ms Boyd (Greens) said her party did not oppose the bill.

As the House resolved into committee of the whole, Mr Farlow moved an instruction to the committee, allowing members to consider amendments to the Thoroughbred Racing Act 1996 (an Act not mentioned in the original drafting of the bill). See here for a refresher on instructions to committee of the whole. The instruction allowed members to debate an amendment to change the term of appointment for Racing NSW board members from 10 to 12 years under the aforementioned Act. The instruction was agreed to. When the amendment was later moved in committee, it was agreed to on division – 26 ayes to 10 noes.

Ms Houssos also moved an amendment to extend provisions added by the bill to the Contract Cleaning Industry (Portable Long Service Leave Scheme) Act 2010 to the Building and Construction Industry Long Service Payments Act 1986 as well. These provisions related to the powers of authorised officers to enter and inspect premises, and the power to take possession of records to use as evidence to improve compliance. The amendment was agreed to on the voices.

The bill was read a third time and returned to the Legislative Assembly for its concurrence with the amendments made.

Local Government Amendment (COVID-19 – Elections Special Provisions) Bill 2021

Following the introduction of the Local Government Amendment (COVID-19 – Elections Special Provisions) Bill 2021 on Wednesday, on Thursday the Parliamentary Secretary, on behalf of Minister Harwin, gave the bill’s second reading speech. The bill would insert a new section into the Local Government Act 1993 to allow regulations to be made to modify any of the Act’s provisions governing the 2021 local council elections, so that they can be conducted in a COVID-safe manner, if required. As Mr Franklin described, the Minister can only recommend these regulations be made if they are in accordance with advice from the Electoral Commissioner and are reasonable to protect people from the risk of COVID. Notably, the regulations will not allow the December elections to be conducted exclusively by means of postal voting and iVote, nor for them to be postponed.

Leading for the Opposition, Ms Moriarty indicated that Labor would not be opposing the bill, but said its introduction was very last minute, given the elections were only seven weeks away. She also said that the Opposition’s support for the bill was provided on the basis that it will not be used as a means to entirely replace face-to-face voting with remote voting methods, as the Government had promised.

Mr Shoebridge (Greens) made similar comments about the lateness of the bill, noting that the Electoral Commissioner had previously said he would need at least 12 months’ notice in order to implement full postal elections (where the entire election is conducted by postal vote). He also expressed concern that the bill as worded only required an assertion from the Minister that any proposed regulations were in accordance with advice from the Electoral Commissioner and foreshadowed that the Greens would move amendments to also require they align with advice from the Chief Health Officer. Mr Shoebridge also said that the bill as drafted would allow any provision of the Local Government Act 1993 to be amended by these regulations, provided there was a nexus to dealing with COVID-19 and said the Greens would move amendments to limit the regulation power. Before the Parliamentary Secretary spoke in reply, debate was adjourned.

ELECTRIC VEHICLES (REVENUE ARRANGEMENTS) BILL 2021

The second reading of the Electric Vehicles (Revenue Arrangements) Bill 2021 was delivered by Parliamentary Secretary Scott Farlow on behalf of Minister Tudehope. The bill was originally cognate with others making up the NSW Budget, but has since been separated out. It seeks to introduce a road-user charge for electric vehicles, payable by owners of certain zero-emission and low-emission vehicles in NSW for every kilometre travelled in public places across Australia. The charge would come into effect in 2027, or when electric vehicles make up 30 per cent of all new vehicle sales. The bill would also exempt electric vehicles from stamp duty – applicable firstly to those under $78,000, and later all electric and plug-in hybrid vehicles.

Mr Farlow said the road-user charge would provide a sustainable revenue base for the long-term funding of roads in NSW, while phasing out stamp duty would lower the up-front costs of electric vehicles, ‘driving more onto our roads’.

Mr Mookhey (Labor) said the Opposition supported the bill, but flagged that an amendment would be made in committee of the whole. He said the bill was an important measure to expand the infrastructure for, and availability of, electric vehicles in NSW.

Ms Boyd said that while the Greens supported the removal of stamp duty for electric vehicles, the road-user charge was of concern as it paved the way for a privatised road user system and provided a disincentive for electric vehicle uptake in the long term. As such, she indicated a number of amendments would be moved in committee of the whole.

Mr Latham said Pauline Hanson’s One Nation opposed the bill and moved that it be referred for inquiry and report by the Legislative Council’s Portfolio Committee No. 6 (Transport and Customer Service.

Other members including Mr Graham and Mr Veitch (both Labor) contributed, before debate on the bill was adjourned.

CHILDREN’S GUARDIAN AMENDMENT (CHILD SAFE SCHEME) BILL 2021

The Children’s Guardian Amendment (Child Safe Scheme) Bill 2021 embeds the Child Safe Standards, as recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse, as the primary framework that guides child safe practice in organisations in NSW.

In introducing the bill, Parliamentary Secretary Taylor Martin acknowledged the survivors of institutional abuse, their hurt, and the impact of past failures of government and non-government organisations to protect them. Noting that implementation of the Child Safe Standards would be mandatory, Mr Martin said that the bill would require organisations to create an organisational culture where the safety and welfare of children is front and centre, where their voices and interests are protected, where abuse of children is prevented, identified, reported, and responded to, and where the compromises of the past are not repeated. Mr Martin described the bill as a watershed moment in NSW’s duty of care to children and young people.

The Opposition supported the bill. Ms Sharpe acknowledged that while the Royal Commission proceedings could not reverse the harm done to children, young people and adults who have experienced child sexual abuse, she was hopeful that the Child Safe Standards would assist to put children at the forefront in making choices in their own lives. Ms Sharpe called on the Parliamentary Secretary to articulate whether sufficient resources would be made available to the Office of the Children’s Guardian to support organisations in the preparation of child safe plans, particularly small organisations that do not have sufficient administrative support.

The Greens also supported the bill, with Mr Shoebridge observing that the reforms will make important changes to create a culture of institutional accountability within organisations. Mr Shoebridge foreshadowed that the Greens would move an amendment in committee of the whole to explicitly require that any organisation that engages with First Nations children and young people must consult with the relevant Aboriginal-controlled organisations and engage with Aboriginal communities when establishing Child Safe Standards. He also asserted that it was appropriate that the Children’s Guardian, being an independent statutory authority, be charged with the authority and oversight powers set out in the bill to ensure they were exercised impartially. He was not supportive of those powers resting with the Minister.

In contrast, Mr Latham (Pauline Hanson’s One Nation) stated that while his party fully supported the work and recommendations of the Royal Commission, they had fundamental concerns with expanding the powers and role of the Office of the Children’s Guardian and the Advocate for Children and Young People. Mr Latham suggested that the two agencies had moved beyond their legislated remit to advocate in areas such as child gender fluidity, and that greater oversight powers should be vested with the Minister. Mr Latham foreshadowed that he would move a range of amendments during the committee stage to address his concerns.

Debate was adjourned until a future sitting day.