In the House – Thursday 21 October 2021

It was a legislation-heavy day on Thursday 21 October, with five bills coming before the House! This included a bill to amend the Modern Slavery Act 2018, as well as a bill to support the development of a hydrogen and biogas industry in NSW. Members also moved lots of amendments in committee stage… read on for more.

MODERN SLAVERY AMENDMENT BILL 2021

The Modern Slavery Amendment Bill 2021 was introduced in the Council in the previous sitting week. It would make miscellaneous amendments to the Modern Slavery Act 2018 to combat modern slavery, slavery-like practices and human trafficking, and to provide assistance and support for victims. It would also set a new date of 1 January 2022 for commencement of the Act. Minister Harwin’s speech on the bill and a closer overview of its purpose are recapped in our earlier blog here.

Opening debate on the bill, Mr Graham (Labor) said the legislation was important, but it was disappointing the original bill establishing the Modern Slavery Act was assented to in 2018, while the Act would not commence until the first day of 2022. He said that, among other things, the Opposition was concerned that the amendment bill would remove requirements for NSW businesses to report on modern slavery under the state’s more onerous scheme, leaving them to report under the Commonwealth modern slavery reporting scheme, which, among other things, only requires reporting from companies with revenue greater than $100 million. He indicated amendments would be moved in committee of the whole to address ‘significant issues of substance in the bill that weaken the original regime’.

Similarly, Mr Shoebridge (The Greens) said the Modern Slavery Act was a ground-breaking piece of internationally recognised, world-leading legislation, but he was concerned about its delayed introduction and the changes proposed by the bill. He said his party did not support the bill in its current form and was ‘deeply troubled’ that it would strip important measures from the Act, including but not limited to supply chain transparency measures, coverage of state-owned corporations, penalties, and functions of the Anti-Slavery Commissioner.

Also raising disappointment with the bill’s delayed introduction and certain changes to the Act was Mr Searle (Labor), who hoped measures to strengthen the bill would be passed in committee of the whole.

Meanwhile, Mr Mallard (Liberal) spoke in support of the bill, having chaired the Social Issues Committee’s inquiry into the Modern Slavery Act 2018 and associated matters, which you can read here. He said it would address several technical legal deficiencies in the Act and implemented many of the recommendations from the committee inquiry – including requiring a statutory review of the Act after its first year of operation. Among other things, he said the establishment of Australia’s first substantive Anti-Slavery Commissioner was important, and that the bill would confirm and clarify the Commissioner’s powers. He also supported the proposed amendments and spoke to the bill amending the Victims Rights and Support Act 2013 as well, to give victims of acts of modern slavery access to ‘recognition’ payments.

After Minister Harwin spoke in reply, the bill was read a second time and consideration in committee of the whole was adjourned to a future sitting day.

Coastal Management Amendment Bill 2021

The Coastal Management Amendment Bill 2021, introduced by Parliamentary Secretary Mr Martin on behalf of Minister Harwin, seeks to provide a two-year extension for local councils to implement their Coastal Management Plan, as required under the Coastal Management Act 2016. When the Act commenced in 2016, local councils were given until 31 December 2021 to transition from managing their coastal zones using ‘Coastal Zone Management Plans’ (CZMPs) to simplified ‘Coastal Management Plans’.

However Mr Martin noted that unforeseen challenges, such as the 2019/20 bushfires and the COVID-19 pandemic, had understandably diverted councils’ focus and attention away from creating these plans. He said that the changes proposed by the bill would provide councils with extra time to finalise these new plans by allowing their CZMPs to continue in operation for another two years, as well as to continue to be able to access grant funding for their CZMPs during this time.

Ms Moriarty (Labor) indicated the Opposition would not oppose the bill and called on the Government to provide more financial support for councils to transition to CMPs, particularly those on the Central and North Coast of NSW. The second and third reading were agreed to on the voices and the bill was returned to the Legislative Assembly for transmission to the Governor for assent.

WATER INDUSTRY COMPETITION AMENDMENT BILL 2021

The Water Industry Competition Amendment Bill 2021 was introduced in the Council by Parliamentary Secretary Mr Farraway on behalf of Minister Taylor. It makes a suite of amendments to the Water Industry Competition Act 2006 to change the system for licensing and regulating private companies providing water, recycled water and sewerage services in NSW; to repeal the Water Industry Competition Amendment (Review) Act 2014; and to make other related changes.

Mr Farraway said the bill would streamline and strengthen the Water Industry Competition Act 2006, ensuring it effectively protects public health, the environment, and consumers, while removing unnecessary red tape.

In relation to licensing and approvals, the bill would narrow the scope of the Act’s licensing and regulation regime to three clear categories: schemes providing water or sewerage services to 30 or more residential and small business premises; large drinking water facilities; and large sewage, stormwater or recycled water treatment facilities.

It would also separate the licensing of operators and retailers from the approval of individual schemes, and introduce further checks and requirements. Mr Farraway said that similar to the way drivers’ licences and car registrations operate, licensing would focus on the suitability and capacity of operators and retailers to construct and operate schemes (including a new check on whether a potential licence holder has committed an offence relating to the water industry or other relevant area in the past). Meanwhile, approvals would focus on the design of an individual scheme’s infrastructure and its financial viability – with the regulator unable to approve a scheme unless it was ‘not reasonably foreseeable that it will have significant adverse financial implications’ for customers. All schemes would also have a registered operator, and in some cases a registered retailer, to oversee compliance with regulations and approvals.

Other consumer protections introduced in the bill relate to continuity of services – with the introduction of a new provision for an ‘operator of last resort’ to step in and operate infrastructure if a licensed operator were to fail – and also cost recovery, with recovery of costs from customers of failed licence holders removed from the Act.

Finally, the bill would increase investigative powers and penalties under the Act to further safeguard public health and safety; bring certain schemes operated by metropolitan councils under the Act; and prevent private schemes from on-selling drinking water sourced from public water utilities.

Mr Farraway said the bill’s amendments would commence in late 2022, once the Government had finalised and released for consultation supporting regulations.

Ms Jackson (Labor) said the Opposition did not oppose the bill, saying it struck a balance in setting a strong regulatory regime that was also straightforward and efficient – maintaining the integrity of water quality and supply, while being mindful of the regulatory costs passed on to water consumers.

Ms Faehrmann (The Greens) said her party opposed the bill and its move towards a privatised model of water supply. She said among other things it could see public water utilities avoid responsibilities – including making improvements in water management – and eventually be made redundant, while residents, particularly in new developments, could end up ‘living under the monopoly’ of private agencies.

The bill’s second reading was agreed to on the voices before the bill was read a third time and returned to the Legislative Assembly without amendment.

Civil Liability Amendment (Child Abuse) Bill 2021

The Civil Liability Amendment (Child Abuse) Bill 2021 seeks to amend the Civil Liability Act 2002 so that for cases of child abuse:

• Courts can set aside previous settlement agreements in certain circumstances, and
• There is no restriction on damages that can be awarded where a person suffered injury as a result of child abuse sustained while in custody.

Parliamentary Secretary Mrs Ward explained that these changes build on previous government reforms in 2016 and 2018 in response to the recommendations of the Royal Commission into Institutional Child Sexual Abuses.

While the earlier reforms addressed barriers for many survivors of sexual abuse, they did not apply to survivors who had already entered into a settlement agreement. This bill would allow survivors to apply to set aside a previous settlement that is inadequate or unjust and benefit from the 2016 and 2018 reforms. The earlier reforms also removed a restriction on damages that could be awarded under the Civil Liability Act 2002 except in relation to those who were abused while in custody prior to 2018. The current bill would remove this restriction.

The Opposition supported the bill. Ms Sharpe (Labor) noted that the bill addressed the unintended consequences of previous laws and would improve access to justice. Mr Shoebridge (Greens) also supported the bill but flagged the Greens would seek to amend it in committee of the whole. Mr Shoebridge argued that part 2A of the Civil Liability Act 2002 (which limits those in custody from seeking compensation) should be removed in its entirety, based on the part’s ‘deep unfairness’ to all persons in custody. He also raised concerns with limiting settlements that may be put aside to only ‘affected amendments’ and flagged that the Greens would move an amendment so that any unjust or unfair settlement, including ones recently made, could be set aside.

In committee, the Greens amendment, which expanded the type of settlements that could be set aside, was successful on division (20 ayes to 16 noes) with the Opposition, the Greens, Animal Justice Party, Mr Field and the Shooters, Fishers and Farmers supporting it and the Government and One Nation opposing it. The third reading of the amended bill was agreed to and the bill sent back to the Legislative Assembly for consideration.

Energy Legislation Amendment Bill 2021

Introduced by Parliamentary Secretary Mr Franklin (Nationals) on behalf of the Minister, the Energy Legislation Amendment Bill 2021 seeks to amend four key acts across the energy portfolio to support the development of a hydrogen and biogas industry. The amendments proposed by the bill would also allow NSW to opt into the national regulatory framework for standalone power systems and would improve the administration of the Energy Security Safeguard and energy emergency framework, allowing the Government to declare an electricity supply emergency if a cybersecurity incident affects energy supply. Amendments to the Forestry Act 2012 would also allow certain parts of state forests to be used for the construction and operation of renewable energy infrastructure.

Leading for the Opposition, Ms Sharpe said that Labor would not oppose the bill  and referred  to the extensive overview given in the Legislative Assembly by the Shadow Minister for Energy and Climate of Labor’s position on the bill. However, she noted that they would move amendments in committee of the whole to ensure renewable energy projects within state forests operated sustainably and didn’t negatively impact existing forestry operations within them. Mr Latham (Pauline Hanson’s One Nation) indicated that his party would oppose the bill, questioning the viability of the hydrogen industry as a source of energy in NSW. Mr Latham also moved an amendment to the question on the second reading, that the bill be referred to Portfolio Committee 1 for inquiry, with a report to be tabled by March 2022. This amendment was negatived on division (4 ayes, 33 noes), with Pauline Hanson’s One Nation and the Shooters, Fishers and Farmers Party voting in favour, and the Government, Opposition, Greens, Animal Justice Party, Mr Field and Reverend Nile opposing it.

Mr Shoebridge also indicated that the Greens would not oppose the bill and would move amendments to put time limits on concessions the bill proposes to offer to incentivise the use of hydrogen, where the hydrogen has been mixed with fossil fuels.

In committee of the whole, amendments were moved by Pauline Hanson’s One Nation, The Greens and the Opposition.

Mr Latham moved four amendments, which sought to:

• Remove incentives offered under the bill to encourage the use of green hydrogen
• Remove the bill’s exemption of hydrogen from additional charges and costs
• Remove the bill’s amendment of the Forestry Act 2012, to prevent softwood plantations in state-owned forests from being able to be used for the construction and operation of renewable energy infrastructure,
• Prevent green hydrogen from being defined as a ‘natural gas’, for the purposes of gas supply in NSW.

The first two amendments were negatived on division (first amendment: 4 ayes, 34 noes, second amendment: 4 ayes, 33 noes) with Pauline Hanson’s One Nation and the Shooters, Fishers and Farmers voting in favour of them and the Government, Opposition, Greens, Animal Justice Party and Mr Field opposing them. The third and fourth amendment were negatived on the voices.

Mr Veitch (Labor) moved two Opposition amendments, both relating to the bill’s proposed changes to the Forestry Management Act. The combined effect of the two proposed amendments was to introduce stricter controls around the use of softwood plantations for the operation of renewable energy infrastructure, by requiring that any use be in line with the principles of sustainable forest management. Both amendments were agreed to on the voices.

Mr Shoebridge moved two Greens amendments. The first sought to provide for the construction of community scale batteries, to allow for the storage of up to 30 megawatts of power. This amendment was agreed to on division (34 ayes, 4 noes) with the Government, Opposition, Greens, Animal Justice Party and Mr Field voting in favour and Pauline Hanson’s One Nation and the Shooters, Fishers and Farmers voting against. The second amendment implemented the changes foreshadowed by Mr Shoebridge in his contribution to the second reading debate, seeking to put a time limit of 1 January 2030 on concessions the bill proposes to offer to incentivise the use of hydrogen, where the hydrogen has been mixed with fossil fuels. This amendment was negatived on the voices.

With the third reading agreed to, the bill as amended was sent to the Legislative Assembly for concurrence.